An Emotionless Calculation of Years

By Nora Callahan

While studying "real offense" and "relevant conduct" and how these tangled legal terms have turned into tangled laws, I found through Internet searching one of the best research papers explaining some fine points of the US Sentencing Guidelines I've ever read. It was published in spring 2008.

Entitled Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip, Baylor University Law Professor Mark Osler tackles sentencing questions head-on. We've already sent out a few copies, and are hoping that many federal prisoners will have the opportunity to study it -- and then put this important "reform document" in the prison law library for others. It's an easy read, and those aren't easy to come by. Your imprisoned loved one will thank you profusely for downloading it, printing it, and sending it to them. It's 50 pages.

Tom Murlowski, November's Operations Manager, can print and mail a few copies by request. We rely on key legal thinkers inside prisons, and you might be in contact with one we don't know. To read this Message and other 'blogs' from Nora on Internet, go to Drug War Injustice and Us, at www.november.org/nora.

Because of limitations on electronic communications for the incarcerated, we are hoping this printed blog (short for 'web log') will reach and teach potential and current members of November Coalition, especially -- but only with your help. We'll list online only the best of 'reform minded' documents. That said, let your loved ones know that comments on these papers are welcome. Please write: Drug War Injustice and Us, November Coalition; 282 West Astor, Colville, WA 99114.

Most analyses of law offer only tinkering suggestions for reform, even after airing big beefs about irrational laws. Not the inestimable Professor Osler, a former prosecutor, who also tells us that things are worse than ever, explaining, "The result, even after Booker, has been the most restrictive sentencing system in the nation -- one that imposes more uniformity and restricts judicial discretion more severely than any of the 50 state systems that overlap with federal courts in their common project of regulating crime."

Within this rigid system are fast track programs and substantial assistance departures. I've tried to explain it -- any uniformity is turned on its head -- in various forums and formats for a long time. Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip does the job better than I can do today, and for me, it darn well beats having to read my own awkward explanations after searching for inspiration and greater knowledge on the subject!

Law students, constitutional defenders and anyone interested in US Sentencing Guidelines, especially the federal system, will want to study Professor Osler's work, too.

Completely scrapping the Guidelines is one of his suggestions; another is to have Congress return to traditional goals of sentencing and move away from the broad dictates, support for strange special interests in prosecuting certain crimes over others, and close the trap doors -- the ability of Congress and the Commission to respond inappropriately to unscientific and biased pressures.

Osler asks, "Do we want an irrational and pointless construct at the center of our sentencing structure, even if it is not strictly mandatory?" Then answers, as would I, "I would hope not."

Lastly, Osler proposes Congress could start over again with fewer goals, fewer advisory guidelines -- from scratch. A "massive effort," but "worthwhile," and the one he prefers.

Osler believes that such a process, though "massive," would allow thorough "rethinking of charge v. real offense conduct as the basis for sentencing." Along with such a process are a host of other issues November Coalition has long brought to public attention, including the absence or neglect of rehabilitation in the current federal system, an absence eliminating a traditional goal of US sentencing.

Osler's hope will only have hope if the enforcers don't outnumber other citizens, the stakeholders who should serve on the US Sentencing Commission and have been excluded thus far. If Professor Osler was at the head of the table, along with a few former prisoners, social workers who serve people released from prison, social scientists (not just their data), I'd think that effort would bring us measures of justice.

Continued costs of our 30-year sentencing experiment can't be borne anymore, and so a 'massive effort' now could prove to be the massive solution to our country's massive imprisonment problem. We shouldn't be afraid of big jobs of solid reform. We really don't have a choice -- our country doesn't have much disposable income anymore.

Last, but best, is Mark Osler's explanation that parole and good time provisions were instruments that Congress and Sentencing Commission had available to further their goals of justice. By abolishing parole and reducing good time to a pittance, all that's left is emotionless calculation of years to serve inside prison.

Really, no one wants to miss reading this important document. I encourage prisoners and their loved ones to use Osler's research for the theme of a public discussion about what should replace 'the mess' we find ourselves in. Be the leaders you've been waiting for.

You can download Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1130212, or look for it in an upcoming issue of The Federal Reporter.