By Siena Richardson

Published On: September 15, 2022

            In 2012, a Texas court sentenced Willie James Smalls to forty-five years in prison.[1] This extraordinary sentence was imposed, not for a homicide or another severe violent crime, but for stealing a purse off the arm of an elderly woman.[2] Because Mr. Smalls had prior convictions, the prosecutors argued that he had been given chances to change his behavior, and therefore they did not believe he could be rehabilitated.[3] Mr. Smalls’ sentence, while egregious, is not an anomaly. People incarcerated in United States prisons are serving more time than ever: sentences are on average 36% longer than they were in the 1990s.[4] These lengthy sentences have contributed to an explosion in the incarcerated population, with 2.2 million people held in United States prisons and jails combined.[5]

           The sources of excessive sentences are numerous. Mandatory minimum sentencing schemes, fueled primarily by the pervasive “tough on crime,” rhetoric of the ‘80s and ‘90s, are a much-discussed driver of mass incarceration.[6]However, the advisory ranges provided by the United States Sentencing Commission, while not mandatory, are also a major contributor to lengthy sentences.[7]

           The Supreme Court in United States v. Booker,[8] held that the United States Sentencing Guidelines (“the Guidelines”) could not be mandatory on judges, rendering them merely “advisory.”[9] Courts are empowered to depart from the Guidelines for many reasons, including “disagreement with a particular policy reflected in the Guidelines.”[10]Instead, they are obliged to consider principles like, proportionality, deterrence, incapacitation, and rehabilitation.Fn[11]Since Booker was decided in 2005, judges have largely continued to rely on the numerical recommendations the Guidelines provide.[12] Whether deliberate or not, the Guidelines have, “remained the essential starting point in all federal sentences and . . . continued to exert significant influence on federal sentencing trends over time.”[13] Because the Guidelines produce a numerical value, they create a cognitive “anchoring effect” bias, exerting a disproportionately strong impact on a judge’s decision making that can undermine the fairness of sentencing decisions.[14]

            This anchoring effect is particularly problematic in light of the pervasive criticisms of the Guidelines themselves. The Guidelines have contributed to persistent and well-documented racial disparities, as those convicted of federal crimes face longer sentences if they are Black than those similarly situated who are white.[15] The Guideline ranges for drug trafficking offenses are tied to intricate formulas based on the types and quantities of drugs involved in the offense, “which are poor proxies for culpability,” and further exacerbate systemic disparities.[16] Similarly, the Guidelines tie ranges for financial crimes to monetary loss amounts, which are overly formulaic and “can lead to unreasonable sentences.”[17]

             Ultimately, as currently formulated, the Guidelines tether judges to an outdated scheme, influencing them to impose carceral sanctions for societal problems. The legitimacy of the criminal legal system relies on the principle that punishment will be proportional and predictable.[18] In fact, studies suggest the certainty of punishment has a greater deterrent effect than its severity, despite prevalent messaging to the contrary that underlies our system of mass incarceration.[19] These Guidelines are driving the extended deprivation of millions of people’s liberty.[20] If courts continue to afford them so much undue weight, they must be radically reformulated to privilege considerations of proportionality and culpability, and to encourage decarceration.

[1] Rachel Myers, Extreme Sentencing, ACLU (Aug. 13, 2012, 6:12 PM), https://www.aclu.org/blog/smart-justice/mass-incarceration/extreme-sentencing.

[2] Id.

[3] Id.

[4] Time Served: The High Cost, Low Return of Longer Prison Term, The PEW Charitable Trusts (June 6, 2012), https://www.pewtrusts.org/en/research-and-analysis/reports/2012/06/06/time-served-the-high-cost-low-return-of-longer-prison-terms.

[5] See Marc Mauer, Long-Term Sentences: Time to Reconsider the Scale of Punishment, 87:1 U. Mo. Kan. City L. Rev. 113, 114 (2018) (providing statistics as of 2018).

[6] See id. (explaining that “[a]s of 2016, 55% of the federal prison population had been sentenced under a mandatory provision”).

[7] See, e.g., U.S. Sent’g Comm’n, The Influence of the Guidelines on Federal Sentencing Outcomes: National Sentencing Practices from 2005-2017 1, 5 (Dec. 2020), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/20201214_Guidelines-Influence-Report.pdf (explaining that the Sentencing Commission promulgates guidelines that provide numerical ranges for the number of months defendants should serve, based on the offense and other characteristics, to promote consistency in sentencing across courts).

[8] United States v. Booker, 543 U.S. 220, 245 (2005).

[9] Id.

[10] See Spears v. United States, 555 U.S. 261, 264 (2009) (arguing that judges’ policy objections, in addition to the circumstances of a case, are a basis for departure from the guidelines); see also United States v. Bean, 371 F. Supp. 3d 46, 49 (D.N.H. 2019) (“District courts are entitled to vary from the guidelines sentencing range not only on the basis of individualized determinations specific to each defendant, but also on the basis of a categorical policy disagreement with the guidelines themselves.”).

[11] 18 U.S.C. 3553(a)(2).

[12] U.S. Sent’g Comm’n, supra note 7, at 11.

[13] Id.

[14] See Mark W. Bennett, Confronting Cognitive ‘Anchoring Effect’ and ‘Blind Spot’ Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw, 104 J. of Crim. L. & Criminology 489, 489 (July 5, 2014), https://ssrn.com/abstract=2503423 (explaining how the “anchoring effect” is a cognitive bias that causes judges to afford undue weight to the Sentencing Guidelines because they provide a numerical value).

[15] U.S. Sent’g Comm’n, supra note 7, at 6.

[16] See United States v. Diaz, No. 11-CR-00821-2 JG, 2013 WL 322243, at *4 (E.D.N.Y. Jan. 28, 2013) (detailing policy objections to the drug trafficking guidelines).

[17] United States v. Burghardt, 702 Fed. App’x 4, 6 (2d Cir. 2017) (summary order).

[18] Mauer, supra note 5, at 128.

[19] Id. at 114.

[20] Id. at 129.