A few weeks ago, I wrote this piece
in The Hill, "We're addicted to jail." It addressed a problem that we have in the United States -- we jail too many people for too long. I offered one modest proposal, that we get more defenders and civil lawyers on the bench and fewer prosecutors:
One easy fix — appoint more criminal defense lawyers and civil lawyers to the bench and fewer prosecutors. According to the Cato Institute, former prosecutors are “vastly overrepresented” throughout the judiciary. As to federal judges alone, the ratio of former prosecutors versus former criminal defense lawyers is four to one (and if you include lawyers who worked for the government on the civil side, the ratio is seven to one). A criminal case or a civil rights case has a 50 percent chance to be heard by a former prosecutor and only a six percent chance to be heard by a judge who has handled a case against the government. Cato explains the unfairness of this with a simple example — we would never allow four of the seven referees of a Ohio State-Michigan football game to be alumni of Michigan. Ohio State fans would never tolerate it. And yet, there are no criminal defense lawyers on the Supreme Court and there hasn’t been one for more than 25 years.
In many cases, former prosecutors have never represented a person sentenced to jail. They have never visited a client in jail. They have never explained to a family — while the family cried — that their loved one is going to be taken from them. As prosecutors, they have only put a lot of people in jail. And so, as judges, this addiction to jail continues, even for someone like Deandre, who ends up serving a jail sentence because he overslept.
I've decided to continue to write on this subject and offer other proposals with the hope of trying to fix the over-criminalization problem that both sides of the aisle agree on (when they literally can agree on nothing else). If you'd like to write a response (and sign your name) or make your own proposal, please feel free to email me and I will post it.
One crazy function of the federal criminal justice system is that probation officers, who are mostly non-lawyers, prepare a presentence investigation report, which includes a calculation of the federal sentencing guidelines. In other words, these officers are analyzing complex legal questions and making a determination, many times after only speaking to the prosecution about the case. Those reports often-times take the most extreme view of the guidelines (even more extreme than the government's view of the guidelines), views that are not supported by the plea agreement, by the law, or by the facts. The reports also do not ever include reasons for why there should be a downward variance under 3553. They simply repeat their standard policy that there are no factors that warrant a variance. And then some judges will meet with probation officers ex parte and discuss the guidelines and potential sentences, all without hearing from the parties. It's an upside-down practice.
So here's another modest proposal, this one regarding probation officers --
1. Probation officers should not do any analysis of the guidelines whatsoever. That should be left to the parties to each submit their guideline calculations. The judge and her law clerks can then analyze the parties' submissions and rule on any disagreements. The same for variance arguments (up or down).
2. Just as importantly, judges should not have ex parte meetings with probation officers before the sentencing (or accept ex parte "blue sheets" with probation recommendations as to sentence). It's simply not fair to the parties. The judge that I clerked for -- Judge Edward B. Davis -- would occasionally meet with a probation officer in chambers when he had a question about something in the report. But he would never do it without the parties. I remember one exchange he had with a probation officer who had not recommended minor role for a drug courier. Judge Davis asked him why the reduction was not considered even though the case law was clear that it was to be decided on a case by case basis. The PO responded that his office had a policy of never including it. Judge Davis chuckled and asked, "Don't you work for me?"
We have a real jail problem. The federal guidelines are in part to blame. That issue is exarcerbated when probation officers have the ability to shape the debate over how those guidelines are applied and then have access to the judge without the parties before sentencing. There is no downside to making these small changes to our sentencing process.
Bigger ones to follow.