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Over-Reliance on Incarceration, Other Sentencing Practices Subject of ABA Testimony

Focusing on Minor Disparities of Sentences Akin to Rearranging Decks on Titanic

WASHINGTON, D.C., Feb. 16, 2012 — In testimony before the U.S. Sentencing Commission today, the _ expressed its views on the structure of federal sentencing, specifically that severity—rather than disparity—in sentencing is the most pressing problem facing the commission today.

Testifying on behalf of the ABA for a hearing titled “Federal Sentencing Options After Booker,” James Felman noted that:

  1. the structure of federal sentencing must not outweigh the most critical issue at hand, that being the outcomes that result from the system;
  2. an advisory guidelines system is the best structure to achieve the goals of the Sentencing Reform Act; and
  3. the ABA is opposed to mandatory minimum sentencing standards as an alternative sentencing structure.

“For the first time in our nation’s history, more than one in one hundred of us are imprisoned,” read Felman’s prepared remarks.  Citing an American Law Institute report, Felman explained that the explosion in incarceration rates “is unmatched by any other society in any historical era.”  These stunning statistics have, in part, been the result of the federal sentencing scheme, including the advent of mandatory sentences for drug offenses and the Sentencing Guidelines, said Felman.

Felman stated that restructuring the sentencing scheme in response to what is in actuality only marginally increased rates of disparity “without addressing the ever-increasing overreliance on incarceration has the feel to me of rearranging the deck chairs on the Titanic.”

While an advisory guidelines system has not resulted in decreased sentencing lengths overall, “what has changed is that courts have been able to be smarter about who goes to jail for how long” because the courts can consider mitigating aspects and characteristics of the defendant, continued Felman.

In addition to outlining the ABA’s position on federal sentencing, Felman spoke of his personal opposition to jettisoning the advisory guidelines regime in favor of binding guidelines driven by jury findings.  Felman has been engaged in private practice of federal criminal defense law in Tampa, Fla., since 1988.  He is also co-chair of the ABA Criminal Justice Section Committee on Sentencing.

With nearly 400,000 members, the _ is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.