Enouraging Signs That the Government Is Rethinking Sending Drug
Offenders Straight to Prison

By Phillip S. Smith, Drug War Chronicle. Posted September 18, 2008.

The powerful Sentencing Commission has signaled that it intends to
focus next year on developing alternatives to imprisonment.

The US Sentencing Commission, the panel that sets sentencing
guidelines for federal courts, has signaled that it intends to focus
next year on developing alternatives to imprisonment, a move that is
welcomed by reform advocates, but opposed by conservatives and,
likely, the Justice Department. The commission's intentions were
mentioned in a recent filing in the Federal Register and come as a
September 8 deadline for public comment has just passed.

Created in 1984, the Sentencing Commission consists of seven
presidential appointees who are then confirmed by the Senate Judiciary
Committee. The panel is charged with making sentencing recommendations
which automatically take effect unless Congress proactively votes to
reject them.

While Congress has repeatedly enacted tough new sentences in bouts of
anti-crime or anti-drug hysteria, the Sentencing Commission is less
prone to political passions and more likely to act as a restraining
influence on congressional incarceration mania. The commission, for
example, has for more than a decade urged reforms of the crack/powder
cocaine sentencing disparities that have seen thousands of
African-Americans imprisoned for years for crack while mostly whites
holding similar amounts of powder cocaine do far less time. Last year,
the commission enacted changes in the federal sentencing guidelines to
reduce sentences for crack offenders.

Despite objections from the Justice Department, the commission then
went a step further, making the reductions retroactive so that some of
the thousands of long-serving crack offenders could get out of prison
a few months early.

But with some 2.3 million people behind bars in the US, including more
than 200,000 in the federal system -- more than half of them drug
offenders -- the commission signaled earlier this year that it wants
to see more efforts to reduce those numbers. This summer, it hosted a
two-day symposium on alternatives to incarceration, and now, with the
Federal Register announcement, it appears the commission will continue
down that path.

"The summer symposium was a really good coming together of criminal
justice experts," said Kara Gotsch, director of advocacy for the
Sentencing Project, a Washington, DC-based think tank. "There were
judges, probation and parole people, law enforcement, academics, and
advocates there to talk about what the states are doing in relation to
alternatives to incarceration. They discussed successful programs that
are diverting people from prison. The commission has demonstrated its
interest in this issue and has said it would distribute materials from
the symposium, so we are hoping the commission will look to apply some
of this to alternatives to incarceration at the federal level,
including expanding the sentencing grid to include alternatives."

Not everyone was so excited. In a weekend story in the Wall Street
Journal, the Justice Department seemed decidedly unimpressed.
Spokeswoman Laura Sweeney said that while the department is interested
about the use of expanded monitoring technologies, "we do not believe
the use of alternatives should be expanded without further rigorous
research showing their effectiveness in promoting public safety."

Similarly, Michael Rushford of the conservative, victims'
rights-oriented Criminal Justice Legal Foundation warned that
resorting to less mass incarceration could result in rising crime and
violence. "I'm old enough to remember the 1960s and the sky-high crime
and murder rates we had then," he said. "While there may be a role for
diversion for young offenders, serious felony offenders need to be
behind bars."

While it is unclear exactly what the commission might recommend, the
summer symposium heard lots of talk about drug courts, residential and
community corrections, and other alternatives to incarceration. It
does seem clear that the commission wants to reduce the flow of new
inmates before they get to the prison gates.

"We're going to be looking at what might fit at the starting point,
before somebody is sent to prison," District Court Judge Ricardo
Hinojosa, chairman of the commission, told the Wall Street Journal.
But the commission will move cautiously, he said.

"The commission's priorities for next year are not yet finalized,"
said Gotsch, who is hoping it will also consider further reforms of
crack sentencing and the mandatory minimum sentencing structure. "But
we are encouraged by the symposium and this announcement. Advocates
like us and Families Against Mandatory Minimums (FAMM) will continue
to push for modifications of the sentencing grid to make including
alternatives to incarceration a priority. The issue is clearly on
their radar, and that's a good thing," she said.

The Sentencing Commission can