The topic of alternatives to incarceration often seems at once forgotten and yet ever-present in the federal sentencing system. U.S. Sentencing Commission data indicate nine out of every ten federal sentences include terms of imprisonment, and yet the offenses and offenders in the federal system ought to permit great use of alternatives. This issue of FSR seeks to bring new attention to these topics, largely though the materials emerging from the Center for Justice and Human Dignity’s October 2023 “Rewriting the Sentence II Summit.” This event at George Washington University aspired to highlight how the full array of practitioners — judges, prosecutors, defense attorneys and other sentencing system actors — could make meaningful commitments to alternative to incarceration practices. This introductory essay provides context and framing for the materials that follow.

In this piece, Chair of the U.S. Sentencing Commission Carlton W. Reeves makes a call for alternatives to incarceration. Noting that imprisonment was originally an “alternative” itself, insofar as it supplanted execution and slavery as forms of social control, Chair Reeves argues that incarceration has maintained its status as the default punishment because of its ability to make the costs of punishment invisible to the public. Pointing to the sentences of those who attempted to overthrow the government on January 6, 2021, Chair Reeves argues that non-carceral punishments that reflect mercy and empathy are available in the current system; the problem is that these things are provided to the few, rather than the many. All of this is to suggest that alternatives will be provided more broadly only when those who have experienced the realities of incarceration have their truths reflected in policymaking around sentencing. To spark that change, the Sentencing Commission must partner with scholars, journalists, practitioners, judges, and incarcerated people to develop more just, evidence-based policies.

Federal Bureau of Prisons Director Colette Peters spoke at the Rewriting the Sentence II Summit on October 17, 2023. Transcribed remarks include the Bureau of Prisons’ alignment with the criminal legal reform community in thinking differently about the experience of incarceration for individuals in custody and opportunities for reform that support positive and rehabilitative outcomes.

Research Article| December 01 2023 Factors Affecting Time Served in Prison: The Overlooked Role of Back-End Discretion Julia Laskorunsky, Julia Laskorunsky Research Scholar, Robina Institute of Criminal Law and Criminal Justice Search for other works by this author on: This Site PubMed Google Scholar Gerald G. Gaes, Gerald G. Gaes Criminal Justice Consultant, Robina Institute of Criminal Law and Criminal Justice Search for other works by this author on: This Site PubMed Google Scholar Kevin Reitz Kevin Reitz James Annenberg La Vea Land Grant Chair in Criminal Procedure Law, University of Minnesota School of Law Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2023) 36 (1-2): 38–46. https://doi.org/10.1525/fsr.2023.36.1-2.38 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn Email Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Julia Laskorunsky, Gerald G. Gaes, Kevin Reitz; Factors Affecting Time Served in Prison: The Overlooked Role of Back-End Discretion. Federal Sentencing Reporter 1 December 2023; 36 (1-2): 38–46. doi: https://doi.org/10.1525/fsr.2023.36.1-2.38 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. © 2023 Vera Institute of Justice. All rights reserved.2023 Article PDF first page preview Close Modal You do not currently have access to this content.

Abstract Although this article applauds many of the criticisms of sentencing practices contained in Judge Marvin Frankel’s influential book, Criminal Sentences: Law Without Order, it maintains that the reforms he championed failed to advance the goal of greater certainty in sentencing. Moreover, these reforms concentrated discretion in hands of prosecutors, who were less likely to exercise their discretion wisely than the judges and other officials whose powers were curbed, and the reforms increased the pressure on defendants to waive their rights. The article describes how Frankel-backed reforms contributed to mass incarceration, and it considers how today’s sentencing guidelines might have altered Judge Frankel’s determination of sentence in the 1976 “heater” case of Rabbi Bernard Bergman.

Abstract Judge Marvin Frankel’s writings in the early 1970s inspired the creation of sentencing guidelines commissions and guidelines rules in twenty-two state and federal jurisdictions. By the late 1970s Frankel’s tentative proposals had been substantially filled out by other writers and reformers; the two most common guidelines models were adopted by Minnesota (1980) and Pennsylvania (1982). The federal guidelines (1987) have been justly criticized, but most state guidelines have been accepted by judges and other practitioners and observers. This sentencing reform model has also been endorsed by the American Bar Association and the American Law Institute. This essay tells the story of how Judge Frankel’s proposal evolved, where and how it was adopted, and how well it has stood the test of time. The essay concludes that Frankel’s critique of unregulated judicial and parole discretion was, and is, correct—such lawless, haphazard deprivation of offenders’ liberty and life chances is unacceptable in any legal system claiming to be governed by the rule of law. The essay further argues that well-developed guidelines, based on Frankel’s elaborated proposal and as implemented in several states, provide the best and indeed the only proven way to meaningfully address the problems of sentencing and parole disparity that Frankel so eloquently identified. But he would want and expect guideline systems to continue to evolve, thoughtfully and steadily coming closer to the shared goals of fair, balanced, and cost-effective punishment. The essay therefore proposes several further reforms, any of which would improve even the best state guideline systems.

Abstract In the summer of 2022, various aspects of the federal sentencing world seemed frozen in time. The U.S. Sentencing Commission couldn’t respond to vital legislative or practical developments because it lacked a quorum, as it had for more than three years. Meanwhile, federal prosecutors were operating under aging, interim charging, pleas, and sentencing guidelines, issued barely a week after President Biden took office, that revived former Attorney General Holder’s 2010 policies. But, in just a matter of months, the federal system has gone from a holding pattern to warp speed. When considered along with continued, thoughtful sentencing developments in the states, American sentencing law and practice in early 2023 could be seen as now living life in the fast lane.

Research Article| December 01 2022 Fables in Law: Legal Lessons on Sentencing from Field, Forest, and Glen D. Brock Hornby D. Brock Hornby Senior District Judge (inactive) on the U.S. District Court for the District of MaineThese fables were initially published in the Green Bag. FSR is honored to republish them. – Eds. Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2022) 35 (2): 144–150. https://doi.org/10.1525/fsr.2022.35.2.144 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn MailTo Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation D. Brock Hornby; Fables in Law: Legal Lessons on Sentencing from Field, Forest, and Glen. Federal Sentencing Reporter 1 December 2022; 35 (2): 144–150. doi: https://doi.org/10.1525/fsr.2022.35.2.144 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. Reprinted with permission from the Green Bag2023 Article PDF first page preview Close Modal You do not currently have access to this content.

Research Article| October 01 2022 Press Release: President Biden Nominates Bipartisan Slate for the U.S. Sentencing Commission (May 11, 2022) Federal Sentencing Reporter (2022) 35 (1): 33–34. https://doi.org/10.1525/fsr.2022.35.1.33 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn Email Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Press Release: President Biden Nominates Bipartisan Slate for the U.S. Sentencing Commission (May 11, 2022). Federal Sentencing Reporter 1 October 2022; 35 (1): 33–34. doi: https://doi.org/10.1525/fsr.2022.35.1.33 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. © 2022 Vera Institute of Justice. All rights reserved.2022 Article PDF first page preview Close Modal You do not currently have access to this content.

Abstract The Sentencing Guidelines are needlessly complicated, and can be easily simplified if the Commission’s long-promised “evolution” will finally begin.