The COVID-19 pandemic has opened our eyes to the myriad vulnerabilities in the prison health care system. We need only record the number of pandemic-related deaths of federal inmates to grasp that the prison health care system is profoundly ill-equipped to handle the needs of inmates during a public health crisis. Currently, prisoner infection rates outpace those of the general, unincarcerated population by more than 150%, and prisoners are dying four times as often as prison staff who test positive. Results are far worse for elderly inmates. While COVID-19 afflicts people of all health profiles, its grip on the elderly is the most arresting. Though some effort has been exerted, federal prison officials fail to adequately protect the rights of the imprisoned elderly. It cannot be ignored that prison officials owe basic duties of care to the incarcerated, chief among them, the responsibility to provide adequate health care. However, prisons, by their very nature, are unable to care for an old and ailing population. This glaring deficiency is rendered indisputable by the novel coronavirus pandemic. For this reason, vulnerable inmates, especially the elderly, should be released to home confinement forthwith. Anything less is profoundly inhumane and represents a colossal miscarriage of justice.

The United States Supreme Court declared in 1976 that deliberate indifference to the serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain…proscribed by the Eighth Amendment. It matters not whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed—adequate prisoner medical care is required by the United States Constitution. My incarceration for four years at the Oakdale Satellite Prison Camp, a chronic health care level camp, gives me the perspective to challenge the generally promoted claim of the Bureau of Federal Prisons that it provides decent medical care by competent and caring medical practitioners to chronically unhealthy elderly prisoners. The same observation, to a slightly lesser extent, could be made with respect to deficiencies in the delivery of health care to prisoners of all ages, as it is all significantly deficient in access, competencies, courtesies and treatments extended by prison health care providers at every level of care, without regard to age. However, the frailer the prisoner, the more dangerous these health care deficiencies are to his health and, therefore, I believe, warrant separate attention. This paper uses first-hand experiences of elderly prisoners to dismantle the tale that prisoner healthcare meets constitutional standards.

This essay, adapted from a speech upon receipt of the 2018 Richard P. Kern Memorial Award from the National Association of Sentencing Commissions, details why sentencing is “dang hard” and explores implications of that reality. The essay argues that the challenges of sentencing not only demand that all jurisdictions have a sentencing commission as an essential permanent agency, but also call for these commissions always to think big and to strive to work deep and wide to study all facets of modern criminal justice systems. The essay also contends that sentencing errors may be quite common and that, even if we manage to get sentencing “right” at the outset, changes in society and in individuals can make even “right” sentences wrong over time. Sensible humility about the likelihood of sentencing errors further suggests, for example: at the rule-making stage , having sentencing laws include sunset provisions and having sentencing commissions review and audit major guidelines and related sentencing practices on a regular basis; at the case-specific stage , having far more robust substantive appellate review of sentences, having more robust mechanisms for parole and judicial reconsideration and clemency, and even developing more creative means to apply and revise different forms of punishment as time passes and new information is gathered.

Beginning in the 1980’s, Congress passed a series of “tough on crime” mandatory minimum sentences. While increased periods of incarceration contributed to reduced crime rates, the pendulum has swung too far. Mandatory minimum sentences designed for “kingpins” are often meted out to low level drug offenders, who occupy a significant percentage of the federal prison population. The Smarter Sentencing Act would, among other things, reduce the level of minimum sentences for some drug offenders without eliminating them, enabling judges to impose harsher sentences when warranted and freeing up prison space for offenders who pose a greater risk to public safety.

The United States Sentencing Commission has drawn much criticism over the years. Stakeholders have impugned the institutional structure of the Commission and the operation of the Guidelines, and they’ve even attacked the Commissioners themselves. While many of the criticisms are undoubtedly due, the current Commission has advanced a series of noteworthy reform initiatives aimed at reducing sentences. The most visible is the Commission’s recent proposed amendment that would lessen drug trafficking sentences across the board, but there are others. Because of the Commission’s efforts, which have led and capitalized on the reform movement, federal sentencing is on the cusp of becoming less punitive, less costly, and much less flawed than it has been in over a generation. In this essay, I briefly catalog the Commission’s recent efforts to reduce sentences, and explain how it has used nimble strategy to advance reform consistent with the agency’s values but also in a way most likely to succeed. I then offer some insights into why the Commission is now asserting itself more strongly as to sentencing reform than it has in the past, a welcome trend that I hope continues.

These Editor's Observations introduce Volume 24, Number 5 of the Federal Sentencing Reporter, an issue devoted to renewed discussion in Congress and the U.S. Sentencing Commission about whether there is a need for legislative action to revise or replace the advisory federal sentencing guidelines system judicially created by the U.S. Supreme Court's 2005 decision in United States v. Booker . It describes the basic positions of the main institutional actors, briefly summarizes the articles in the issue, and makes a prediction about the likelihood of action in the near term.

This article contends that the advisory guidelines system created by the Supreme Court's 200 decision in United States v. Booker should be replaced. It advances three arguments: First, the post- Booker advisory system is conceptually indefensible. It retains virtually every feature excoriated by critics of the original sentencing guidelines. Its extreme 'advisoriness,' while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place. More importantly, the post- Booker system does not solve the biggest problem with the pre- Booker system — that its architecture and institutional arrangements predisposed the Commission's rule-making process to become a one-way upward ratchet which raised sentences often and lowered them virtually never. Its sole relative advantage — that of conferring additional (and effectively unreviewable) discretion on sentencing judges — is insufficient to justify its retention as a permanent system. Second, there exist a number of constitutionally permissible alternatives to the court-created Booker system, one of which — that originally proposed by the Constitution Project and more recently endorsed by Judge William Sessions, former Chair of the U.S. Sentencing Commission — is markedly superior to the present system. Third, the difficult problem is not designing a sentencing mechanism better than either the pre- or post- Booker guidelines, but ensuring that such a system, once in place, does not replicate pre- Booker experience and become a one-way upward ratchet prescribing ever higher sentences. The article offers suggestions about how this difficulty might be solved, while conceding both the difficulty of this problem and the justice of the concern that, however imperfect the advisory system, it may be the best that can be achieved given the present constellation of institutional and political forces.

Guest editor Jelani Jefferson Exum introduces this issue of Federal Sentencing Reporter , which focuses on federal child pornography sentencing. Acknowledging the timeliness of discussing the current state of and future possibilities for child pornography sentencing, the editors of Federal Sentencing Reporter recruited submissions from those working on and thinking about this particular sentencing topic. This issue of FSR contains commentary that engages in many different angles of the child pornography sentencing debate—from the demographic of offenders, to the judicial approach to sentencing, to specifics about the Guidelines, and even to post-release issues—and covers the many problematic aspects of child pornography sentencing. Readers not only will be informed about the particularities of the sentencing process for these offenses but also will be invited to ponder (and perhaps question) the possible consequences and effects of the current posture of sentencing federal child pornography offenses.