Ryan S. King, Changing Direction? State Sentencing Reforms 2004-2006, The Sentencing
Project Research and Advocacy for Reform (March 2007).

Available at: http://sentencingproject.org/Admin/Documents/publications/
sentencingreformforweb.pdf

“Between 2004 and 2006, at least 22 states enacted legislative reforms to
their sentencing policies,” focusing on:

1. “diversion of drug offenders from incarceration through expanded
   treatment options” including drug courts, drug treatment programs, and
   community-treatment sentencing;
2. “expansion of alternatives to incarceration for non-violent offenders”
   by granting prosecutors discretion to refer cases to community sentencing,
   and to charge a state felony as a misdemeanor;
3. “parole and probation reforms designed either to reduce time
   served in prison or to provide supervision options to reduce the number of
   revocations to prison; and,”
4. “broader sentencing reform” including changing the weight triggers
   for certain drug charges and integrating “principles of rehabilitation and
   reentry at the sentencing phase.”

U.S. Sentencing Commission, Public Opinion on Sentencing Federal Crimes, at 86 (Oct.
1995).

Available at: http://www.ussc.gov/nss/jp_exsum.htm

“Fairly strong consensus exists on the seriousness ordering of crimes, with
those involving actual or threatened physical harm to victims generally
considered to be the most serious and status victimless crimes regarded as
least serious.” Id.at 11.

“In giving concrete sentences to convicted persons, citizens are not guided
solely by the seriousness of the crimes but also by the convicted person’s
previous record and the amount of damage or loss suffered by victims.” Id.
at 12.

“There is some evidence that respondent sentencing preferences can be
affected, perhaps strongly, by providing a wider range of punishment
choices, information on prison conditions, and the costs of incarceration.” Id.
at 12.

“The general public does not make important distinctions between trafficking
in heroin, powder cocaine and crack cocaine.” Id.at 86.

“[The general public] did not typically favor long prison sentences for drug
possession.” Id.at 85.

United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An
Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of
Sentencing Reform, 2004.

Available at: http://www.ussc.gov/15_year/15year.htm

“Using a sample of 264 federal judges sentencing a different series of
hypothetical cases, they found that judges who were on average than judges
who emphasized other goals.” Id. at 80.

Samuel B. Lutz, The Eighth Amendment Reconsidered: A Framework for Analyzing the
Excessiveness Prohibition, 80 N.Y.U. L. Rev. 1862 (2005).

Asserting that the Supreme Court must revisit 8th Amendment jurisprudence
to create a consistent standard for excessive criminal sanctions.
“Current doctrine has created a situation in which nonviolent offenses like
cocaine possession or obtaining $120.75 by false pretenses can be punished
by mandatory life imprisonment, while far more serious crimes of rape,
felony-murder, and even non-aggravated murder cannot be punished by
death. Thus, despite the fact that life imprisonment and death are the two
most-severe punishments authorized by law and are similar in the enormous
degree to which they infringe upon an individual’s interests, the level of
scrutiny applied to each is dramatically different.” Id.at 1876.

Erik Luna, Gridland: An Allegorical Critique of Federal Sentencing, 96 J. Crim L. &
Criminology 25 (2005).

Advocating post-Booker for sentencing policies that (1) consider all the
factors that distinguish individual defendants and offenses; and (2) allows
judges to make a decision based on a moral balancing of the crime, the
individual factors and circumstances, and the judge’s legal experience.
“The fair method for sentencing is for an impartial judge, who is fully
cognizant of an individual defendant’s personal character, family
responsibilities, medical and mental condition, criminal record, and the
particular circumstances surrounding the crime, to impose a sentence after
deep reflection, informed by the judge’s experience in life and in the law.” Id.
at 78.

Nora V. Demlietner, Smart Public Policy: Replacing Imprisonment With targeted Nonprison
Sentences and Collateral Sanctions, 58 Stan. L. Rev. 339 (2005).

Arguing that post-Booker, federal courts should follow the lead of the states
and impose nonprison sanctions on offenders who pose a low-risk to public
safety.

Patrick Kelly & Don Stemen, Probation Reform: Is Zero Tolerance a Viable Option?, Vera
Institute of Justice, Research and Practice Forum (October 2005).

Outlining a probation and community-corrections punishment model that
empowers officers to create rewards and sanctions for offenders.
Andrew R. Strauss, Losing Sight of the Utilitarian Forest for the Retributivist Trees: An
Analysis of the Role of Public Opinion in a Utilitarian Model of Punishment, 23 Cardozo L.
Rev. 1549 (2002).

Arguing that the juvenile justice system has become inflexibly retributive as
the result of mounting political pressure and public misperception. Asserting
that the law must return to utilitarian goals that seek to deter and rehabilitate
criminal conduct.

“The juvenile justice system has evolved over the past thirty years from a
rehabilitative system to a punitive one, due in large part to a misplaced
emphasis on public opinion. This change has been harmful both to society
and the juvenile. [D]etermining what works, rather than by appeasing the
public, is of premier importance.”

Steven L. Chanenson, The Next Era of Sentencing Reform, 54 Emory L.J. 377 (2005).
Advocating for an indeterminate sentencing system wherein a commission
creates a presumptive minimum and maximum sentence and a system of
parole release that allows judges and parole boards to tailor incarceration
to the requirements of the offense and the individual characteristics and
conduct of the offender.

Steven L. Chanenson, Guidance from Above and Beyond, 58 Stan. L. Rev. 175 (2005).
Advocating for the adoption of three sentencing “tools” in the wake of Booker;
more thorough appellate review of sentences; re-institution of parole release
authority; and creation of “extended sentences review” for older offenders
serving lengthy prison terms.

Aaron Xavier Fellmeth, Civil and Criminal Sanctions in the Constitution and Courts, 94 Geo.
L.J. 1 (2005).

Finding that federal courts draw too sharp a line between civil and criminal
offenses when interpreting constitutional protections while federal
government agencies increasingly impose severe “civil penalties” on
individuals. Arguing that the courts and federal government need to reform
criminal and civil sanctioning to ensure constitutional protections, proper
deterrence, and basic fairness.

John Braithwaite, A Future Where Punishment is Marginalized: Realistic or Utopian? 46
UCLA L. Rev. 1727 (1999).

Arguing for restorative justice to bring together stakeholders (victims,
offenders, communities) in search of outcomes that heal the hurt of crime,
instead of responding with more hurt.

The Sentencing Project, Incarceration and Crime: A Complex Relationship (2005)
Available at: http://www.sentencingproject.org/pdfs/incarceration-crime.pdf
“Incarceration does not always have a uniformly positive impact on reducing
crime and that, therefore, other factors significantly affect crime trends.” Id.
at 3.

“Nationally, violent crime has declined by 33% and property crime has
decreased 23% since 1994.

During the same period incarceration rates rose by 24%.” Id.at 3. “Between
1991 and 1998, those states that increased incarceration at rates that were
less than the national average experienced a larger decline in crime rates
than those states that increased incarceration at rates higher than the
national average.” Id.

“Expanding the use of imprisonment inevitably results in diminishing returns
in crime control. This is because high-rate and serious or violent offenders
will generally be incarcerated even at modest levels of imprisonment, but as
prison systems expand, new admissions will increasingly draw in lower-rate
offenders.” Id.at 6.

“The expenditure of $1 million to expand mandatory minimum sentencing
would result in a national decrease in drug consumption of 13 kilograms,
while dedicating those funds to drug treatment would reduce consumption
by 100 kilograms.” Id.at 8 (citing Caulkins, J.P., Rydell, C.P., Scwabe, W.L.,
Chiesa, J. (1997). Mandatory Minimum Drug Sentences: Throwing Away
The Key or The Taxpayers’ Money? Santa Monica, CA: RAND.)

Nancy Lucas, Restitution, Rehabilitation, Prevention, and Transformation: Victim-Offender
Mediation for First-Time Non-Violent Youthful Offenders, 29 Hofstra L. Rev. 1365 (2001).
“Restorative justice is characterized by the following three principles: First,
crime is not, as is often wrongly assumed, primarily an offense against the
state. Rather, it is a conflict between individuals resulting in injuries to
victims, communities and the offenders themselves; only secondarily is it
lawbreaking. Second, the overall aim of the criminal justice process should
be to make peace between the parties, repair the harm caused by crime, and
not to be obsessively concerned about punishment for punishment’s sake.
Finally, the criminal justice process should not be “dominated by the
government” to the exclusion of victims, communities, and the offenders
themselves.” Id. at 1370.

Nora V. Demleitner, Smart Public Policy: Replacing Imprisonment with Targeted Nonprison
Sentences and Collateral Sanctions, 58 Stan. L. Rev. 338 (2005).
“In contrast to many state and foreign systems that allow for fines, restitution
orders, and community service as stand-alone sanctions, the Federal
Guidelines permit them; only as part of a probation sentence. The federal
criminal justice system only offers limited forms of alternative sanctions.
Among the notable omissions are intensive probation with enhanced
supervision of offenders and day fines that are based directly on the gravity
of the offense and an offender’s economic situation.” Id. at 344.
“Nonprison sentences allow, and even require, individuals to be employed,
pay fines, and make restitution, pay taxes, and assist their families. Such
demands are crucial to allowing them to regain their place in society.” Id. at
346.

Amy Baron-Evans, Sentencing Resource Counsel, Enforcing the New Sentencing Law:
Advanced Federal Criminal Appellate Practice Seminar, March 2006.
“In contrast to mitigating offender characteristics and offense circumstances,
the Guidelines fully reflect one aggravating characteristic of the defendant
and a seemingly infinite and ever-increasing sea of aggravating offense
circumstances. In assessing its work over the first fifteen years, the
Sentencing Commission has identified some guidelines that produce
sentences that are too severe, but none that are not severe enough. Thus,
it is highly probable that the guideline range already takes into account
whatever factor the government may argue for a sentence above the
guideline range, and it should be extremely difficult for a judge to justify a
sentence higher than the guideline range as insufficient to meet the goals of
sentencing.” Id.at 6.

“As both Justice Breyer and the Commission’s Senior Research Associate
note, . . . the Commission and appellate courts treated the departure power
more restrictively than originally intended.” Id.at 10.

“When punishment is disproportionate to the offense, it squanders resources,
creates disrespect for the law, and fails to achieve just punishment.” Id.at
10.

Amy Baron-Evans, Sentencing Resource Counsel, The Continuing Struggle for Just,
Effective and Constitutional Sentencing after United States v. Booker (August 2006)

Available at http://www.fd.org/pdf_lib/EvansStruggle.pdf

Demonstrates through history, empirical evidence, government reports and
other resources why the Guidelines do not reflect or incorporate 18 U.S.C.
§ 3553(a) and therefore should not be followed in general or with respect to
specific guidelines.

“Defense counsel must help to ensure that judges retain and exercise their
sentencing power by providing arguments to support reasoned decisions that
will be upheld on appeal (or not appealed at all), that Congress can respect,
and that the public can understand. There are powerful arguments to be
preserved below and raised in petitions for certiorari that post-Booker
sentencing violates the sentencing law under basic principles of statutory
construction, the Sixth Amendment right to jury trial, the Fifth Amendment
right to proof beyond a reasonable doubt, and the Sixth Amendment right to
confront and cross-examine adverse witnesses.” Id.at 6.

“[R[egardless of what circuit you are in or what stage of the litigation, it is
necessary to demonstrate as a factual matter that the guidelines do not
comply with 18 U.S.C. § 3553(a), and that a lower sentence does a far
superior job.” Id.at 6.

American Bar Association Justice Kennedy Commission, Report with Recommendations
to the ABA House of Delegates (August 2004).

Available at: : sentencing.typepad.com/sentencing_law_and_policy/files/
JusticeKennedyCommissionReports-11Aug2004

“Our recommendation is that shorter period of incarceration should be
prescribed for offenders whose crimes are not the most serious and do not
pose the greatest danger to the community. We believe that the trend
throughout the states is to recognize that the seriousness of the crime and
the danger to the community are key factors in determining both whether
incarceration is an appropriate sanction and how lengthy a sentence of
incarceration is warranted.” Id.at 25.

“The reality . . . is that well designed alternatives to incarceration that save
money, protect the community and reduce recidivism are worth exploring
once they have been shown to work.” Id.at 29.

“If treatment works, reduces recidivism, and is cost-effective, it is a desirable
alternative to incarceration for many low-level offenders.” Id.at 32.

“Not all who violate a condition of parole require imprisonment.
Imprisonment may be the correct sanction for violators who commit additional
criminal acts or who pose a danger to the community, but a graduated
system of sanctions may make as much sense in the parole/probation
context as in the basic sentencing decision following conviction.” Id.at 34.

John J. Gibbons and Nicholas Katzenbach, Commission Co-Chairs, Confronting
Confinement: A Report of the Commission on Safety and Abuse in America’s Prisons, Vera
Institute of Justice (2006).

Available at http://www.prisoncommission.org/pdfs/Confronting_Confinement.pdf

“What happens inside jails and prisons does not stay inside jails and prisons.
It comes home with prisoners after they are released and with corrections
officers at the end of each day’s shift. When people live and work in facilities
that are unsafe, unhealthy, unproductive, or inhumane, they carry the effects
home with them. We must create safe and productive conditions of
confinement not only because it is the right thing to do, but because it
influences the safety, health, and prosperity of us all.” Id.at 11.