Fairness in Sentencing

Fairness in Sentencing

The United States is home to just 5% of the world’s population but 25% of its prison population. Stated simply, the U.S. has a mass incarceration problem. And, to make matters worse, the U.S.’s mass incarceration problem disproportionately impacts minority communities.

More than 60% of the U.S.’s prison population consists of racial and ethnic minorities. For example, Black and White Americans commit drug offenses at the same rate. Yet Black Americans are six times more likely to end up in prison. Likewise, Black Americans make up less than 15% of the U.S. population. But they make up nearly 40% of its prison population. This results in a scenario where America imprisons more Black men today than it enslaved in the 19th Century.

Many of these statistics are attributable to an egregious pre-trial detention system. But they’re also the product of years of discriminatory and extreme sentencing laws and practices. Whether it’s mandatory minimums, death sentences or something else, our “tough on crime” approach to sentencing has led to one unfair outcome: more people are spending more of their lives in prison now than at any other time in U.S. history.

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Mandatory Minimums

A “mandatory minimum” is the minimum sentence that a court can impose for a certain crime. There are more than 150 mandatory minimums under federal law, but they’re popular in states across the country as well.

Mandatory minimums are most popular when it comes to drug-related offenses. For example, under federal law, you can face five-year mandatory minimums for possessing the following:

  • 1 gram of LSD,
  • 5 grams of methamphetamine,
  • 10 grams of PCP,
  • 28 grams of crack cocaine,
  • 40 grams of fentanyl,
  • 50 grams of a mixture containing methamphetamine,
  • 100 grams of heroin,
  • 500 grams of cocaine,
  • 100 kilograms of marijuana, and
  • 100 marijuana plants.

Courts must impose these sentences no matter what. This means that, even if a judge believes such a sentence isn’t appropriate because of who you are or what happened, the law ties their hands.

Lawmakers and advocates around the country have spent decades trying to put mandatory minimums to an end. Going all the way back to 1991, the United States Sentencing Commission even submitted a report to Congress calling for the abolition of mandatory minimums. But, since then, not much has changed. Why?

The reality is that lawmakers can repeal or change mandatory-minimums laws quite easily. In fact, U.S. Representative Maxine Waters (D-CA) has been introducing legislation to do exactly that on a regular basis since her first election to the House. She introduced her most recent version of the bill in June 2020, a bill that’s barely moved since then.

Groups like the ACLU, Families Against Mandatory Minimums and Interrogating Justice as well as people like you are essential in the fight against mandatory minimums. We have the power to push lawmakers to make these changes and hold them accountable when they don’t.

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Death Sentences

The U.S. Constitution prohibits “cruel and unusual punishment.” Yet state governments across the country and the federal government give themselves the right to kill human beings. They justify this intentional—and sometimes celebrated—killing by citing the “rule of law.” According to capital-punishment advocates, some crimes simply warrant death.

Interrogating Justice believes that any just society cannot tolerate death sentences. They are a denial of the civil rights and liberties that all humans enjoy, and they are inconsistent with the fundamental values of any functioning democratic system. Ultimately, the death penalty is an outdated punishment that is both unfair and inhumane.

What makes it even worse in the U.S. is how often the criminal justice system gets it wrong. In many circumstances, a death sentence isn’t a consequence of the most violent offenses or even the worst offenders. Instead, it often depends on someone’s resources, their attorney’s skill, their race, or even where they happen to be.

Even if you ignore those inequitable disparities, though, you can’t ignore how many innocent people face death sentences at the hands of the government. Since the 1970s, more than 150 innocent people have been released from the death rows in more than half of the states in the country. This means that one out of every ten prisoners set for execution are exonerated.

And even if the unnecessary and often unfair loss of life isn’t enough to convince you that the death penalty is wrong, the dollars and cents of it should. Capital punishment is a waste of taxpayer money. While holding inmates on death row and executing them is expensive, it has exactly zero impact on public safety. In fact, the FBI has even determined that states with the death penalty have the highest murder rates in the country.

Through its information-sharing, work with lawmakers and advocacy in court, Interrogating Justice seeks to bring death sentences to an end.

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Supervised Release

The U.S. has a mass incarceration problem. It is home to 25% of the world’s prison population, which is more than five times its percentage of the world population as a whole. This statistic is problematic for a number of reasons. But what makes it worse is that the reality is so avoidable. One way the U.S. can avoid its mass incarceration problem is through supervised release.

What is Supervised Release?

When a court sentences someone, they can send them to prison for a term of several years. But they can also impose a term of “supervised release” after their incarceration. Supervised release is a form of post-imprisonment supervision made possible by the Sentencing Reform Act. Although it is similar to parole, supervised release differs because it does not replace a portion of a prison sentence (while parole does). Instead, courts impose an additional period of supervised release that you serve after your prison sentence.

For many criminal convictions, federal law expressly requires supervised release. Common examples include convictions for domestic violence, kidnapping, drug trafficking, sex offenses, and other crimes. If you’re convicted of a crime that requires supervised release, the court must order supervised release after your release from prison no matter what. But courts may also impose a term of supervised release even if federal law doesn’t require it. In fact, according to data compiled by the U.S. Sentencing Commission in 2010, federal courts almost always impose supervised release during sentences.

Why Do We Need Improvement?

The benefits of supervised release over prison are obvious. And using supervised release to reduce the prison population has benefits that reach far beyond the lives of prisoners and their loved ones. But that doesn’t mean the practice is flawless.

In 2020, for example, the New York Civil Liberties Union, the Rutgers Law School Constitutional Rights Clinic and the Prisoners’ Legal Services of New York sued New York officials for the state’s policies that banned internet and social media use by people required to register as sex offenders during their parole or supervised release. That ban applied even when the individuals didn’t use the internet or social media as part of their offense.

One policy, the Electronic Security and Targeting of Online Predators Act (“e-STOP”), was particularly controversial for its critics. Spearheaded by Governor Andrew Cuomo during his time as the state’s attorney general, e-STOP bans people on the registry from using any social media for any purpose, even if they never misused it in the first place.

When New York adopted the policy in 2008, it targeted common platforms like MySpace, Facebook and AIM. Since then, its reach has gone further, and it now keeps former prisoners from using websites like LinkedIn and even Amazon. For someone just released from prison, limitations on their internet use — including professional platforms like LinkedIn — directly inhibits their rehabilitation efforts.

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  • On May 24, Tennessee governor Bill Lee signed two new justice reform bills into law. Both bills provide mechanisms to reduce jail and prison populations and recidivism. But whether or not these laws actually achieve these reductions is still largely up to the state's judges and parole and probation boards....

  • The First Step Act requires that the Attorney General and BOP complete a risk and needs assessment for each prisoner. What is the assessment?...

  • New York lawmakers are working on a pair of bills that would reform how parole works in the state. Both the Fair and Timely Parole Act and the Elder Parole bill loosen restrictions on parole. If passed, they could reduce the sentences of a significant number of the more than 77,000 people behind bars in the state....

  • The First Step Act was literally that: a first step. Now that the political winds have changed, its time for the Next Step Act to become law....

Excessive Fines

The Eighth Amendment to the U.S. Constitution prohibits “excessive fines.” The U.S. Supreme Court has also unanimously ruled that excessive fines are unconstitutional whether they’re imposed by the federal government or state governments.

The Supreme Court issued that unanimous decision in a case called Timbs v. Indiana in early 2019. In that case, Tyson Timbs pleaded guilty to selling heroin. As part of his sentence, a court ordered him to forfeit his vehicle as a fine. The vehicle was worth $42,000, more than four times the maximum fine permitted by law. According to the Indiana state court, the Eighth Amendment’s prohibition against excessive fines didn’t apply to state courts.

The U.S. Supreme Court disagreed. The late Justice Ruth Bader Ginsburg wrote the Court’s opinion and didn’t mince words when it came to states imposing such “exorbitant” fees. In doing so, she specifically criticized state courts for a growing practice of relying on court fees and fines as a source of revenue.

With the Supreme Court’s opinion, this practice should stop. But that doesn’t mean it will.

The problem with excessive fines is even worse when it comes to communities of color. It disproportionately harms low-income communities, too. The targeted nature of these fines and fees not only impacts the people they’re imposed against but also the effectiveness of the criminal justice system as a whole.

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