Mass incarceration at sentencing

Hastings Law Journal

Volumn 64, Issue 2, 2013, Pages 423-468

  Traum, Anne R ^a  

^a UNIVERSITY OF NEVADA   (United States)

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EID: 84875722095     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (289)

1. See, e.g., Cecelia Klingele, Changing the Sentence Without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release, 52 WM. & MARY L. REV. 465 (2010).
2. Federal cases comprise only a fraction of all criminal cases. See Kevin R. Reitz, Demographic Impact Statements, O'Connor's Warning, and the Mysteries of Prison Release: Topics from a Sentencing Reform Agenda, 61 FLA. L. REV. 683, 684-85 (2009) (observing that 95% of criminal cases arise and are sentenced in state courtrooms). In most federal cases, courts enjoy considerable discretion at sentencing despite the prevalence of statutory minimum sentences.
3. See U. S. SENTENCING COMM'N, OVERVIEW OF STATUTORY MANDATORY MINIMUM SENTENCING 1 (2008) [hereinafter MANDATORY MINIMUM].
4. See generally David Cole, Turning the Corner on Mass Incarceration?, 9 OHIO ST. J. CRIM. LAW 7 (2011);
5. Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 OHIO ST. J. CRIM. LAW 133 (2011).
6. See generally VANESSA BARKER, THE POLITICS OF IMPRISONMENT: HOW THE DEMOCRATIC PROCESS SHAPES THE WAY AMERICA PUNISHES OFFENDERS (2009);
7. LISA L. MILLER, THE PERILS OF FEDERALISM: RACE, POVERTY AND THE POLITICS OF CRIME CONTROL (2008).
8. See, e.g., DO PRISONS MAKE US SAFER? THE BENEFITS AND COSTS OF THE PRISON BOOM, (Stephen Raphael & Michael Stoll eds., 2009);
9. Glenn C. Loury, Crime, Inequality & Social Justice, DAEDALUS, Summer 2010, at 134-40.
10. See Bruce Western & Christopher Wildeman, Punishment, Inequality and the Future of Mass Incarceration, 57 U. KAN. L. REV. 851, 857-66 (2000).
11. See generally Robert J. Sampson & Charles Loeffler, Punishment's Place: The Local Concentration of Mass Incarceration, 139 DAEDALUS 20 (2010);
12. Christopher Wildeman, Imprisonment and (Inequality in) Population Health, 41 SOC. SCI. RES. 74 (2012).
13. Adam Liptak, More Than 1 in 100 Adults Are Now in Prison in U. S.: Inmate Population Is Highest in the World, N. Y. TIMES, Feb. 29, 2008, at A14.
14. See Brown v. Plata, 131 S. Ct. 1910, 1923(2011);
15. see also Adam Liptak, Justices, 5-4, Tell California to Cut Prisoner Population, N. Y. TIMES, May 24, 2011, at A1.
16. See Solomon Moore, Study Finds Record Number of Inmates Serving Life, N. Y. TIMES, July 23, 2009, at A24.
17. See David Garland, Introduction: The Meaning of Mass Imprisonment, in MASS IMPRISONMENT: SOCIAL CAUSES AND CONSEQUENCES 1, 1-2 (David Garland ed., 2001).
18. Robert Weisberg & Joan Petersilia, The Dangers of Pyrrhic Victories Against Mass Incarceration, 139 DAEDALUS 124, 124(2010).
19. Loïc Wacquant, Class, Race & Hyperincarceration in Revanchist America, 139 DAEDALUS 74, 78(2010);
20. Todd R. Clear & James Austin, Reducing Mass Incarceration: Implications of the Iron Law of Prison Populations, 3 HARV. L. & POL'Y REV. 307, 312(2009).
21. For statistics on how many and how long, see Keith Reitz, Don't Blame Determinacy: U. S. Incarceration Rates Have Been Driven by Other Forces, 84 TEX. L. REV. 1787, 1787(2006).
22. Adam Liptak, Inmate Count in U. S. Dwarfs Other Nations', N. Y. TIMES, Apr. 23, 2008, at A1 (explaining that "the mere number of sentences imposed here would not place the United States at the top of the incarceration lists [because] annual admissions to prison per capita[] [in] in several European countries [are higher]", but rather, it is the duration of American prison stays that make our total incarceration rate higher).
23. BUREAU OF JUSTICE STATISTICS, FACTS ABOUT PRISONS AND PRISONERS, THE SENTENCING PROJECT (July 2008), available at http://www.ala.org/ala/aboutala/ offices/olos/prison-facts.pdf;
24. see also ASHLEY NELLIS & RYAN S. KING, THE SENTENCING PROJECT, NO EXIT: THE EXPANDING USE OF LIFE SENTENCES IN AMERICA (July 2009).
25. Marie Gottschalk, Cell Blocks & Red Ink: Mass Incarceration, The Great Recession & Penal Reform, 139 DAEDALUS 62, 62(2010) (stating that while the prison population in 2008 and 2009 edged downward in twenty-seven states, it grew in twenty-three states, and the federal prison population increased by 7%).
26. See FRANKLIN E. ZIMRING & GORDON HAWKINS, THE SCALE OF IMPRISONMENT 90 (1991) (noting that imprisonment is now viewed "as an appropriate punishment for all types of offense").
27. Cf. Franklin E. Zimring, Imprisonment Rates and the New Politics of Criminal Punishment, in MASS IMPRISONMENT, supra note 10, at 145, 145-46 (describing three distinct phases of prison growth: first, the period from 1973 to the mid-1980s, when "the emphasis was on general increases in the commitment of marginal felons to prison"; second, the period from 1985 to 1992, when the emphasis switched to drugs; and finally, the period from 1992 onward, when imprisonment rates continued to grow very substantially despite rapidly decreasing crime rates).
28. See J. Nancy Gertner, Supporting Advisory Guidelines, 3 HARV. L. & POL'Y REV. 261, 261-62 (2009);
29. see also Marc Mauer, Why Are Tough on Crime Policies so Popular?, 11 STAN. L. & POL'Y REV. 9, 11(1999) ("[E]very state and the federal government has some kind of mandatory sentencing law.").
30. See Sentencing Memorandum of Myles Haynes at 9
31. United States v. Haynes, 557 F. Supp. 2d 200 (D. Mass. 2008) (No. 06-10328-NG)
32. 2006 WL 5283198.
33. RYAN S. KING & MARC MAUER, THE SENTENCING PROJECT, A 25-YEAR QUAGMIRE: THE WAR ON DRUGS AND ITS IMPACT ON AMERICAN SOCIETY 9 (2007).
34. See Sentencing Memorandum of Myles Haynes, supra note 29, at 10.
35. Today in the federal system the average drug offender sentence is nearly twice as long as in 1983. Compare MARGARET W. CAHALAN, U. S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, NCJ 102529, HISTORICAL CORRECTIONS STATISTICS IN THE UNITED STATES, 1850-1984 162-63 (1986) (in 1983, a federal drug offender served on average forty-four months in prison)
36. with U. S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, NCJ 231822, FEDERAL JUSTICE STATISTICS, 2008-STATISTICAL TABLES, tbl.5.2(2010), available at http://bjs.ojp. usdoj.gov/index.cfm?ty=pbdetail&iid=1745 [hereinafter 2008 FEDERAL JUSTICE STATISTICS] (in 2007, a federal drug offender served on average eighty-five months in prison).
37. Marc Mauer, The Causes and Consequences of Prison Growth in the United States, in MASS IMPRISONMENT, supra note 10, at 4, 6 (citing a record 1.6 million drug arrests in 1998, and noting the mandatory prison sentences at the federal and state levels, including the Anti-Drug Abuse Act of 1986 and the Anti-Drug Abuse Act of 1988, which imposed a five-year mandatory minimum sentence for possession of as little as five grams of crack cocaine, and Michigan's "Public Act 368 of 1978", which imposed a mandatory life without parole sentence, even for first time offenders, for the sale of 650 grams of heroin or cocaine).
38. Marc L. Miller, Domination and Dissatisfaction: Prosecutors as Sentencers, 56 STAN. L. REV. 1211, 1223(2004) (considering the Sentencing Reform Act of 1984). In fact, probation has been nearly eliminated as a sentence.
39. Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 YALE L. J. 1420, 1453(2008).
40. see also Ewing v. California, 538 U. S. 11, 15(2003) ("Between 1993 and 1995, 24 States and the Federal Government enacted three strikes laws.").
41. See KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN FEDERAL COURTS 5 (1998) ("Before the Guidelines, 50 percent of all federal defendants received nonimprisonment sentences; in the last decade, that percentage has dropped to less than 15 percent.").
42. Press Release, U. S. Dep't of Justice, The Nation's Prison Population Grew Almost 9 Percent Last Year (Aug. 9, 1995), http://bjs.ojp. usdoj.gov/content/pub/press/PI94. PR;
43. BUREAU OF JUSTICE STATISTICS, supra note 24. In the early 1980s, most state felony offenders served, on average, sixteen to seventeen months before release.
44. THOMAS H. COHEN & TRACEY KYCKELHAHN, U. S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, NCI 228944, FELONY DEFENDANTS IN LARGE URBAN COUNTIES, 2006 13 (2010);
45. Bruce Western & Christopher Wildeman, The Black Family and Mass Incarceration, 621 ANNALS AM. ACAD. POL. & SOC. SCI. 221, 225(2009) ("Because the system of criminal sentencing had come to rely so heavily on incarceration, an arrest in the late 1990s was far more likely to lead to prison time than at the beginning of the prison boom in 1980.").
46. See generally PEW CENTER ON THE STATES, PRISON COUNT 2010: STATE POPULATION DECLINES FOR THE FIRST TIME IN 38 YEARS (2010).
47. For decades, California required supervision of all released inmates and mandated prison sentences for even minor parole violations, swelling prisons with relatively low-risk offenders. See Robert Rogers, Parole Violations Feed Prison's Revolving Door, THE BAY CITIZEN (Aug. 10, 2010), http://www.baycitizen. org/crime/story/look-prisons-revolving-door. A recent change in law in January 2011 permits focus on more serious parole violations.
48. See Sara Mayeux, "Prison Without Walls" and the Special Case of California, PRISON LAW BLOG, (Aug. 16, 2010, 6:53 PM), http://prisonlaw. wordpress.com/2010/08/16/prison-without-walls-and-the-special-case-of- california.
49. See Marc Mauer, Thinking About Prison and Its Impact in the Twenty-First Century, 2 OHIO ST. J. CRIM. L. 607, 611-12 (2005).
50. See, e.g., Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271, 1276, 1281-85 (2004);
51. Jeffrey Fagan & Valerie West, Incarceration and the Economic Fortunes of Urban Neighborhoods 6-9 (Columbia Law Sch. Pub. Law & Legal Theory Working Paper Grp., Paper No. 11-266, 2010), available at http://ssrn. com/abstract=1772190.
52. See generally Todd R. Clear et al., Coercive Mobility and Crime: A Preliminary Examination of Concentrated Incarceration and Social Disorganization, 20 Just. Q. 33 (2003) (further investigating this phenomenon).
53. See generally BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 11-33 (2006).
54. MASS IMPRISONMENT, supra note 10, at 2;
55. Racial Disparity, THE SENTENCING PROJECT, http://www.sentencingproject. org/template/page.cfm?id=122 (last visited Dec. 7, 2012).
56. See PAIGE M. HARRISON & ALLEN J. BECK, U. S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, NCJ 201677, PRISONERS IN 2004, at 8 (2005) (reporting that in 2004, one in three black adult men thirty-five years or younger were in the "system", that is, either in prison or jail or under correctional supervision).
57. Adam Gopnik, The Caging of America, NEW YORKER, Jan. 30, 2012, at 72.
58. Loïc Wacquant, Deadly Symbiosis: When Ghetto and Prison Meet and Mesh, in MASS IMPRISONMENT, supra note 10, at 82, 82.
59. See Brett C. Burkhardt, Criminal Punishment, Labor Market Outcomes, and Economic Inequality: Devah Pager's Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration, 34 LAW & SOC. INQUIRY 1039, 1043-45 (2009) (noting that employment opportunities for former prisoners, especially black former prisoners, are bleak);
60. See Holly Foster & John Hagan, The Mass Incarceration of Parents in America: Issues of Race/Ethnicity, Collateral Damage to Children, and Prisoner Reentry, 623 ANNALS AM. ACAD. POL. & SOC. SCI. 179, 181(2009);
61. See generally Jeffrey Fagan & Tracey L. Meares, Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities, 6 OHIO ST. J. CRIM. L. 173 (2008).
62. See Dina R. Rose & Todd R. Clear, Incarceration, Reentry, and Social Capital' Social Networks in the Balance, in PRISONERS ONCE REMOVED: THE IMPACT OF INCARCERATION AND REENTRY ON CHILDREN, FAMILIES, AND COMMUNITIES 313, 324-26, 334-35 (Jeremy Travis & Michelle Waul eds., 2003).
63. See generally Todd R. Clear & Dina R. Rose, Individual Sentencing Practices and Aggregate Social Problems, in CRIME CONTROL AND SOCIAL JUSTICE: THE DELICATE BALANCE 27 (Darnell F. Hawkins et al. eds., 2003) (arguing incarceration only makes socially organized places safer, whereas incarceration has the opposite effect in socially disorganized places, e.g., urban ghettos).
64. Todd R. Clear, The Problem with "Addition by Subtraction": The Prison-Crime Relationship in Low-Income Communities, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 181, 192-93 (Marc Mauer & Meda Chesney-Lind eds., 2002) ("It seems beyond debate that any policy that removes people who do bad things [by incarcerating them] leaves those who remain better off");
65. See generally Todd R. Clear et al., Incarceration and Community: The Problem of Removing and Returning Offenders, 47 CRIME & DELINQUENCY 335 (2001).
66. Tracey L. Meares, Social Organization and Drug Law Enforcement, 35 AM. CRIM. L. REV. 191, 213(1998);
67. While multiple defendants may be charged, processed, and tried together, critical aspects of the procedure, like the adjudication of guilt and the sentencing, are individualized. See, e.g., Jackson v. Virginia, 443 U. S. 307, 323-24 (1979) (requiring at conviction that each element be proved beyond a reasonable doubt);
68. In re Winship, 397 U. S. 358, 361(1970) (requiring proof beyond a reasonable doubt as to each element for a juvenile adjudication);
69. Boykin v. Alabama 395 U. S. 238, 242-44 (1969) (holding that the court is charged with determining on the record that an individual guilty plea is knowing, intelligent, and voluntary);
70. Gideon v. Wainwright, 372 U. S. 335, 342-45 (1963) (providing a felony defendant the right to assistance of counsel).
71. See FED. R. CRIM. P. 1 (a) (defining the rules applicable to federal court proceedings).
72. See U. S. Const, amend. IV (right against unreasonable search and seizure);
73. U. S. CONST. amend. V (right to due process, right against self-incrimination, right to a grand jury in federal criminal cases).
74. See U. S. CONST. amend. VI (right to counsel, right to jury trial, right to summon and confront witnesses);
75. U. S. CONST. amend. VIII (right against excessive bail and cruel and unusual punishment).
76. See Key Facts at a Glance, BUREAU OF JUSTICE STATISTICS, http://bjs.ojp. usdoj.gov/content/glance/felconv. cfm (last visited Dec. 7, 2012) ("Over 1 million adults were convicted of a felony in state courts in 2006.");
77. See generally LAUREN E. GLAZE, U. S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, NCI 231681, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 2009, at 1-2 (2010) (considering the growth in population prisons experienced over the time period studied).
78. See Brandon Garrett, Aggregation in Criminal Law, 95 CALIF. L. REV. 383, 393(2007) (describing how criminal law "lacks mechanisms to remedy systemic violations of criminal defendants' core constitutional rights", including "the right to effective assistance of counsel, the right to have exculpatory evidence disclosed, and the right to be free from suggestive eyewitness identifications, coerced custodial interrogations and the fabrication of evidence").
79. See, e.g., Gerstein v. Pugh, 420 U. S. 103, 116-19, 126(1975) (holding that probable cause must exist on each case's facts);
80. FED. R. CRIM. P. 11 (stating that every guilty plea must be supported by proper facts);
81. accord Henderson v. Morgan, 426 U. S. 637, 644-47 (1976).
82. See Wayte v. United States, 470 U. S. 598, 607(1985).
83. See Bordenkircher v. Hayes, 434 U. S. 357, 364(1978) (allowing prosecutors to threaten more serious charges if the defendant does not plead guilty, so long as the prosecutor has probable cause to support the charges).
84. See Santobello v. New York, 404 U. S. 257, 262(1971) (enforcing the prosecutor's promise regarding sentencing recommendation as a bargained-for term of the plea agreement).
85. See 28 U. S. C. § 2111 (2006) (error not affecting substantial rights must be disregarded);
86. FED. R. CRIM. P. 52 (a);
87. Kyles v. Whitley, 514 U. S. 419, 435(1995) (discovery violation prejudicial if the error undermined confidence in the verdict);
88. Strickland v. Washington, 466 U. S. 668, 696(1984) (counsel ineffective if, but for the error, it is reasonably likely the result would have been different);
89. Chapman v. California, 386 U. S. 18, 23-24 (1967) (harmless error analysis requires a court to balance the nature of the error against the facts of the case in order to determine whether the error was prejudicial).
90. Appellate courts review sentences for abuse of discretion. See Gall v. United States, 552 U. S. 38, 51(2007).
91. See Boykin v. Alabama, 395 U. S. 238, 242(1969) ("[A guilty plea] is itself a conviction; nothing remains but to give judgment and determine punishment."). Federal rules allow a defendant to make a conditional plea of guilty by reserving the right to appeal an adverse ruling on a pretrial motion, such as a motion to suppress, and, if successful, withdraw the plea.
92. FED. R. CRIM. P. 11 (a) (2).
93. See 2008 FEDERAL JUSTICE STATISTICS, supra note 33, at tbl.4.2.
94. United States v. Doyle, 348 F.2d 715, 718-19 (2d Cir. 1965).
95. FED. R. CRIM. P. 11 (b) (i) (N) specifically contemplates that defendants may waive "the right to appeal"
96. See Nancy J. King & Michael E. O'Neill, Appeal Waivers and the Future of Sentencing Policy, 55 DUKE L. J. 209, 212(2005) (finding that defendants waived the right to appeal in nearly two-thirds of plea agreements in a nationwide sample).
97. Brady v. United States, 397 U. S. 742, 752(1970).
98. See Graham Hughes, Agreements for Cooperation in Criminal Cases, 45 VAND. L. REV. 1, 13-14 (1992).
99. See Santobello v. New York, 404 U. S. 257, 262(1971) (enforcing the prosecutor's promise regarding sentencing recommendation as a bargained-for term of the plea agreement).
100. The defendant's guilty plea must be knowing, voluntary, and supported by the facts. See Henderson v. Morgan, 426 U. S. 637, 644-47 (1976);
101. Boykin v. Alabama 395 U. S. 238, 242-44 (1969). The defendant has the right to effective assistance in entering a guilty plea, which includes understanding the consequences of conviction.
102. See Padilla v. Kentucky, 130 S. Ct. 1473, 1483(2010);
103. Hill v. Lockhart, 474 U. S. 52, 56(1985).
104. Plea agreement procedures are intended to withstand appellate review and preclude collateral review. Boykin, 395 U. S. at 242-44 (stating that the voluntariness of the plea agreement cannot be presumed from a "silent record" and requiring a record demonstrating that the defendant has a "full understanding of what the plea connotes and of its consequence", to preclude "the spin-offs of collateral proceedings that seek to probe murky memories").
105. See Donald Braman, Criminal Law and the Pursuit of Equality, 84 TEX. L. REV. 2097, 2113-14, 2118, 2121(2006) (including increased police presence and enforcement in poor urban neighborhood communities).
106. See generally DONALD BRAMAN, DOING TIME ON THE OUTSIDE: INCARCERATION AND FAMILY LIFE IN URBAN AMERICA (2004) (recounting experiences of the families of prisoners); Invisible Punishment, supra note 76 (providing a collection of works covering the effects of mass imprisonment).
107. See Darryl K. Brown, Third-Party Interests in Criminal Law, 80 TEX. L. REV. 1383, 1383(2002).
108. See Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996)
109. (codified as amended in scattered sections of 18, 28, and 42 U. S. C.) [hereinafter PLRA]. A prison official's conduct violates the Eighth Amendment in the context of prison conditions when he has acted with "'deliberate indifference' to inmate health or safety" by "posing a substantial risk of serious harm" to the prisoner.
110. Farmer v. Brennan, 511 U. S. 825, 834(1994);
111. see Brown v. Plata, 131 S. Ct. 1910, 1946-47 (2011) (affirming an order pursuant to the Prisoner Litigation Reform Act requiring California to reduce its prison population to remedy unconstitutional conditions in its correctional facilities).
112. See generally Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1663 fig. IV. E 4 (2003) (detailing trends in inmate litigation before and after the Prisoner Litigation Reform Act).
113. Michael Pinard, Reflections and Perspectives on Reentry and Collateral Consequences, 100 J. CRIM L. & CRIMINOLOGY 1213, 1214, 1223-24 (2010).
114. Cf. Padilla v. Kentucky, 130 S. Ct. 1473, 1483(2010) (illustrating the collateral consequences of deportation for the conviction of an immigrant defendant).
115. See generally John Hagan, The Next Generation: Children of Prisoners, J. OKLA. CRIM. JUST. RES. CONSORTIUM, available at http://www.doc.state.ok.us/ offenders/ocjrc/96/The%2oNext%2oGeneration.pdf (last visited Dec. 7, 2012);
116. Chesa Boudin, Comment, Children of Incarcerated Parents: The Child's Constitutional Right to the Family Relationship, 101 J. CRIM. L. & CRIMINOLOGY 77 (2011) (describing the myriad impacts of parental incarceration on children).
117. See NAT'L CONFERENCE OF COMM'RS ON UNTF. STATE LAWS, UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT (2010).
118. The budget for corrections is the fastest growing in the United States' budget, second only to Medicaid. CHRISTINE S. SCOTT-HAYWARD, CTR. ON SENTENCING & CORRECTIONS, THE FISCAL CRISIS IN CORRECTIONS: RETHINKING POLICIES AND PRACTICES 3 (2009).
119. MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 4, 11(2010);
120. see Bryan Stevenson, Exec. Dir., Equal Justice Initiative of Ala., Keynote Address at the DePaul Law Review Symposium: Race to Execution (Oct. 24, 2003)
121. in 53 DEPAUL L. REV. 1699, 1703(2004) (identifying slavery, reconstruction, Jim Crow, and mass incarceration as the four defining experiences in African-American history);
122. see also Deborah Aureus, Methademic: Drug Panic in an Age of Ambivalence, 37 FLA. ST. U. L. REV. 841, 858(2010) (describing the disparity between the sentencing guidelines for powder cocaine and crack cocaine).
123. See MARC MAUER, THE RACE TO INCARCERATE 10-11 (2006) (estimating that over 600, 000 persons work in prisons as guards, administrators, and service workers);
124. See, e.g., Rachel E. Barkow, Federalism and the Politics of Sentencing, 105 COLUM. L. REV. 1276, 1282(2005) (describing how prisoners and their families "currently do not have a strong voice in the political process", especially when they are pitted against powerful "tough on crime" and proprison interest groups);
125. William J. Stuntz, Unequal Justice, 121 HARV. L. REV. 1969, 1973-74 (2008) (arguing that racially disproportionate imprisonment rates stem from the decline in locally self-governing justice systems in high-crime cities). However, political support for lower sentences exists.
126. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372 (2010) (eliminating the mandatory minimum sentence for possession of crack and reducing the crack-cocaine disparity under statutory sentencing laws from 100:1 to 18:1). Reductions in prisoner numbers are commonly prompted by fiscal or liability concerns and have marginal or mixed impacts on incarceration rates overall.
127. See Brown v. Plata, 131 S. Ct. 1910, 1944(2011) (ordering reduction in prisons due to unconstitutional conditions);
128. See Whren v. United States, 517 U. S. 806, 813(1996) ("[T]he constitutional basis for objecting to intentionally discriminatory application of the laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."). To prove selective prosecution based on race, a defendant must present clear evidence to dispel the presumption that the prosecutor has not violated the Equal Protection Clause.
129. See United States v. Armstrong, 517 U. S. 456, 464(1996) (noting that courts presume prosecutors properly perform their official duties).
130. see also United States v. Moore, 54 F.3d 92, 97 (2d Cir. 1995) ("Every circuit court that has addressed this issue has held that there is no evidence of a racially discriminatory purpose behind the ratio.").
131. Brown, 131 S. Ct. at 1937-45 (affirming an order to release prisoners due to unconstitutional conditions caused by overcrowding).
132. See, e.g., Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33 N. Y. U. REV. L. & SOC. CHANGE 427, 444-48 (2009) (describing the proliferation of lawsuits alleging that indigent defense providers systematically violate the Sixth Amendment).
133. JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY 83-84 (2007);
134. See Chimel v. California, 395 U. S. 752, 762-63 (1969) (holding that a warrantless search incident to arrest is limited to the arrestee's person and reach area);
135. Miranda v. Arizona, 384 U. S. 436, 444-45 (1966) (requiring officers to give warnings before custodial interrogation, including the rights to remain silent, consult attorney, and counsel appointed);
136. Mapp v. Ohio, 367 U. S. 643, 660(1961) (applying the exclusionary rule for Fourth Amendment violation to states);
137. Spano v. New York, 360 U. S. 315, 324(1959) (invalidating a conviction based on the defendant's coerced confession).
138. Some argue that the expansion of criminal rights caused a backlash against judges and their discretion. See Naomi Murakawa, The Racial Antecedent to Federal Sentencing Guidelines: How Congress Judged the Judges from Brown to Booker, 11 ROGER WILLIAMS U. L. REV. 473, 479-80 (2006) (linking backlash to support for the Sentencing Reform Act of 1984);
139. Justice John Paul Stevens, On the Death Sentence, THE NEW YORK TIMES REVIEW OF BOOKS (2010)
140. (reviewing DAVID GARLAND, PECULIAR INSTITUTION: AMERICA'S DEATH PENALTY IN AN AGE OF ABOLITION (2010)) (describing backlash to the liberal Warren Court decisions protecting the rights of criminal defendants and minority voters). Critics also argue that the criminal rights approach failed to protect local communities affected by crime.
141. Carissa B. Hessick & F. Andrew Hessick, Recognizing Constitutional Rights at Sentencing, 99 CALIF. L. REV. 47, 56-74 (2011) (identifying aspects of sentencing where constitutional protections are inapplicable).
142. As others have suggested, many opportunities for reform exist before and outside the criminal adjudication process, including indirect efforts to reduce criminal behavior, changes in policing practices, and changes in prosecutorial decisions. See Dan M. Kahan & Tracey L. Meares, The Coming Crisis of Criminal Procedure, 86 GEO. L. J. 1153, 1153-54 (1998) (describing changes in urban policing practices);
143. Kevin K. Washburn, Restoring the Grand Jury, 76 FORDHAM L. REV. 2333, 2380-81 (2008) (discussing the benefits of the neighborhood grand jury or grand jury by zip code).
144. See ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 15 (2007) (arguing that prosecutors have escaped the kind of scrutiny and accountability demanded of other institutional entities);
145. see also Wayte v. United States, 470 U. S. 598, 607(1985) (explaining why prosecutors are given such broad discretion on whether to charge a defendant).
146. Absent indictment by grand jury, a court holds a preliminary hearing to determine whether probable cause supports the charges. FED. R. CRIM. P. 5. 1 (e).
147. See Riverside v. McLaughlin, 500 U. S. 44, 56(1991) (stating that probable cause review should be conducted within forty-eight hours of arrest);
148. Gerstein v. Pugh, 420 U. S. 103, 125-26 (1975) (noting that state pretrial detention requires a timely judicial determination of probable cause before or promptly after arrest);
149. see also FED. R. CRIM. P. 5 (a) (1) (A) (requiring a defendant to be brought before a magistrate judge without unnecessary delay after arrest).
150. Cf. Shima Baradaran, Restoring the Presumption of Innocence 72 OHIO ST. L. J. 723, 725 n. 5 (2011).
151. Only the court can accept a guilty plea, and it must be satisfied on the record that the defendant's plea is voluntary, that his admissions and any proffered evidence satisfy the requisite elements of the crime, and that the defendant understands the terms and consequences of his guilty plea. Santobello v. New York, 404 U. S. 257, 261-62 (1971).
152. See, e.g., Mosi Secret, Low Bail, but Weeks in Jail Before Misdemeanor Trials, N. Y. TIMES, Dec. 3, 2010, at A27 (reporting that many low level defendants lack the funds to post bail and are detained before trial).
153. See Missouri v. Frye, 132 S. Ct. 1399, 1407(2012) (suggesting judicial supervision during the guilty plea colloquy could avoid prejudice due to ineffective assistance of counsel);
154. Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2464, 2474-75 (2004).
155. See generally Nancy J. King, Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment, 58 STAN. L. REV. 293 (2005).
156. See 2008 FEDERAL JUSTICE STATISTICS, supra note 31, at tbl.4.2 (finding that over 96% of felony convicts pled guilty during the period from 2007-2008);
157. The time needed to litigate a federal habeas action, roughly five to six years, far exceeds the median sentence of about two years and the average sentence length of about four years. NANCY J. KING ET AL., NAT'L CTR. FOR STATE COURTS, FINAL TECHNICAL REPORT: HABEAS LITIGATION IN U. S. DISTRICT COURTS 55, 56 tbl.13(2007), available at http://www.ncjrs.gov/pdffiles1/nij/grants/219559. pdf (finding that, on average, it takes federal habeas petitioners over five years to file a petition in federal court and another year for the court's decision).
158. Michael Heise, Federal Criminal Appeals: A Brief Empirical Perspective, 93 MARQ. L. REV. 825, 829 tbl.1, 829-30 (2009) (finding that appellate courts affirm over 70% of sentences);
159. see U. S. SENTENCING COMM'N, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 2009 fig. M, http://www.ussc.gov/Data-and-Statistics/Annual-Reports-and- Sourcebooks/2009/SBTOCo9.htm (last visited Dec. 7, 2012) (81, 350 convictions, 8, 774 appeals, and 82.9% of appeals affirmed in 2009).
160. See, e.g., 18 U. S. C. § 3661 (2006).
161. See, e.g., Marc Mauer, Sentencing Reform: Amid Mass Incarceration-Guarded Optimism, A. B. A. CRIM. JUST. MAG., no. I, Spring 2011, at 27, 32 (stating that federal sentencing has placed restrictive limitations on a judge's ability to consider personal characteristics of a defendant at sentencing, while state sentencing systems generally afford judges greater sentencing discretion).
162. See FED. R. CRIM. P. 32 (c) - (d) (detailing information required in presentence report, including guideline calculations of offense level and criminal history, factors relevant to appropriate sentence, "defendant's history and characteristics", victim information, and non-prison resources available to the defendant).
163. Pepper v. United States, 131 S. Ct. 1229, 1240(2011)
164. (quoting Williams v. New York, 337 U. S. 241, 247(1949)).
165. (quoting Williams, 337 U. S. at 246).
166. (quoting Williams, 337 U. S. at 247).
167. (quoting 18 U. S. C. § 3577 (1970)).
168. Compare 18 U. S. C. §3661 (2006)
169. with U. S. SENTENCING GUIDELINES MANUAL § 1B1. 4 (2010). The only firm limitations on the court's discretion to consider information are those imposed by constitutional constraints, so a court cannot consider the defendant's race, nationality, or gender.
170. Pepper, 131 S. Ct. at 1240 n. 8;
171. Carissa Byrne Hessick, Race and Gender as Explicit Sentencing Factors, 14 J. GENDER RACE & JUST. 127, 127(2010).
172. See 18 U. S. C. § 3553 (a) (2006);
173. MANDATORY MINIMUM, supra note 2, at 1.
174. Pepper, 131 S. Ct. at 1240
175. (quoting Williams, 337 U. S. at 247).
176. 18 U. S. C. § 3553 (a).
177. See Bullington v. Missouri, 451 U. S. 430, 443 n. 16 (1981) ("Sentencing and parole release decisions in this country have largely been left to the unfettered discretion of the officials involved. Legislatures have traditionally set high maximum penalties within which judges must choose specific sentences, but generally have provided little guidance for the exercise of this choice-In effect, sentencing policymaking has traditionally been delegated to a multitude of independent judges to be exercised in the context of individual cases"
178. (quoting Peter B. Hoffman & Michael A. Stover, Reform in the Determination of Prison Terms: Equity, Determinacy, and the Parole Release Function, 7 HOFSTRA L. REV. 89, 96(1978) (footnotes omitted))).
179. (quoting Sanford H. Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 HARV. L. REV. 904, 916(1962)).
180. Bullington, 451 U. S. at 443 n. 16.
181. Carissa Byrne Hessick & F. Andrew Hessick, Appellate Review of Sentencing Decisions, 60 ALA. L. REV. 1, 4(2008) ("For the greater part of American history, appellate review of federal criminal sentences was non-existent in most cases.").
182. See 18 U. S. C. §§ 3551-53 (2006).
183. See U. S. SENTENCING GUIDELINES MANUAL, supra note 179, § 1B1.1.
184. See 18 U. S. C. § 3553 (b)
185. see also United States v. Booker, 543 U. S. 220, 234(2005) (observing that the statute required courts to impose a sentence within the applicable guidelines range).
186. See 18 U. S. C. § 3742 (a);
187. see also Booker, 543 U. S. at 233.
188. Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, § 401, 117 Stat. 650, 667-75 (2003).
189. See MANDATORY MINIMUM, supra note 2, at 9-10 (finding that, in 2008, 82.5% of persons convicted under a mandatory minimum statute were convicted of drug offenses). Among these was the controversial 100-to-1 crack-cocaine disparity contained in the Anti-Drug Abuse Act of 1086, which imposed harsh mandatory minimum sentences for distribution of crack: five years for five grains, ten years for fifty grams.
190. 21 U. S. C. § 841 (b) (2006). This disparity was decreased in 2010.
191. Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372 (2010) (reducing the crack-cocaine disparity from 100:1 to 18:1, so that 28 grams (not 5 grams) triggers a five-year minimum prison term and 280 grams (not 50 grams) triggers a ten-year minimum prison term) The Act eliminated a mandatory minimum prison term for simple possession of less than 5 grams of crack cocaine.
192. See MANDATORY MINIMUM, supra note 2, at 1 (finding that, in 2008, the Sentencing Commission identified 171 individual mandatory minimum provisions and, out of a total group of 73497 cases, in 21, 023 cases (28.6%) the person was convicted under a mandatory minimum statute).
193. (finding that, in 2008, 55.9% of drug offenders convicted under a statute carrying a mandatory minimum were eligible to be sentenced without regard to and below the mandatory minimum based on substantial assistance to the government under 18 U. S. C. § 3553 (e), or under the "safety valve", § 3553 (0. which applies to the least culpable drug offenders).
194. Booker, 543 U. S. at 259-60.
195. (invalidating 18 U. S. C. §§ 3553 (b) (1) and 3742 (e)).
196. See Pepper v. United States, 131 S. Ct. 1229, 1241(2011).
197. See Richard S. Frase, Punishment Purposes, 58 STAN. L. REV. 67, 68(2005).
198. Kimbrough v. Unites States, 552 U. S. 85, 101(2007).
199. Dillon v. United States, 130 S. Ct. 2683, 2699(2010) (Stevens, J., dissenting).
200. Gall v. United States, 552 U. S. 38, 49(2007). The Guidelines are seen to "secure nationwide consistency", and are listed among the factors to be weighed at sentencing.
201. see 18 U. S. C. § 3553 (a) (4) - (5) (2006).
202. See 18 U. S. C. § 3553 (a).
203. Gall, 552 U. S. at 51 (explaining that the appellate court, under the abuse of discretion standard, can presume that a Guidelines sentence is reasonable, but cannot presume that a non-Guidelines sentence is unreasonable).
204. See Spears v. United States, 555 U. S. 261, 265-66 (2009) (per curiam) (explaining that district courts could reject crack-cocaine Guidelines categorically on policy grounds, even in a mine-run case, without "individualized, case-specific reasons");
205. Gall, 552 U. S. at 46, 50-51 (requiring sufficient justification for non-Guidelines sentence based on facts presented in a particular case).
206. See Kimbrough v. United States, 552 U. S. 85, 92, 95(2007) (explaining that the drug statute uses the weight of the drugs involved as the sole proxy to identify major and serious dealers);
207. see also Spears, 555 U. S. at 265-66 ("[W]e now clarify that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.");
208. Kimbrough, 552 U. S. at 109-10 (explaining how drug Guidelines were based on statute, not "empirical data and national experience").
209. Carissa B. Hessick, Appellate Review of Sentencing Policy After Kimbrough, 93 MARQ. L. REV. 717, 726, 731-32 (2010).
210. Gall, 552 U. S. at 53-56 (2007).
211. See 18 U. S. C. § 3553 (a) (2006).
212. See United States v. Samas, 561 F.3d 108, 110 (2d Cir. 2009).
213. See 8 U. S. C. §3553 (a) (1) - (7)
214. Pepper v. United States, 131 S. Ct. 1229, 1240(2011) ("[T]he punishment should fit the offender and not merely the crime"
215. (quoting Williams v. New York, 337 U. S. 241, 247(1949))).
216. See 18 U. S. C. § 3553 (a) (1).
217. United States v. Tapia, 131 S. Ct. 2382, 2387(2011) (describing four purposes of sentencing: retribution, deterrence, incapacitation, and rehabilitation).
218. 18 U. S. C. § 3553 (a) (2) (A).
219. Gall v. United States, 552 U. S. 38, 54(2007) (quoting the district court, which sentenced the defendant to a term of probation for a drug offense: "[A] sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing.").
220. Ewing v. California, 538 U. S. 11, 24(2003);
221. Atkins v. Virginia, 536 U. S. 304, 320(2002) ("The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct.");
222. Ewing, 538 U. S. at 25 (observing that the California Legislature, in enacting the three strikes law, "made a judgment that protecting the public safety requires incapacitating criminals", and that "[s]tates have a valid interest in deterring and segregating habitual criminals").
223. Brown v. Plata, 131 S. Ct. 1910, 1954(2010). In Brown, the lower court was required under the Prison Litigation Reform Act to "give substantial weight to any adverse impact on public safety" caused by court-ordered relief.
224. (quoting 18 U. S. C. § 3626 (a) (1) (A) (2006)). The district court in Brown found "clear" evidence that prison overcrowding would "perpetuate a criminogenic prison system that itself threatens public safety", "rejected] the testimony that inmates released early from prison would commit additional new crimes", and found that "shortening the length of stay through earned credits would give inmates incentives to participate in programming designed to lower recidivism", that "slowing the flow of technical parole violators to prison, thereby substantially reducing the churning of parolees, would by itself improve both the prison and parole systems, and public safety", that "the diversion of offenders to community correctional programs has significant beneficial effects on public safety", and that "additional rehabilitative programming would result in a significant population reduction while improving public safety"
225. See Mark A. R. Kleiman & Kelsey R. Hollander, Reducing Crime by Shrinking the Prison Headcount, 9 OHIO ST. J. CRIM. L. 89, 97-102 (2011) (critiquing the effectiveness of community corrections).
226. Tapia v. United States, 131 S. Ct. 2382, 2388-89 (2011)
227. (citing 28 U. S. C. § 3582 (a) (2006) and stating that rehabilitation cannot be considered in determining whether to imprison an offender or the length of term to give him).
228. See 18 U. S. C. § 3553 (a) (6) (D).
229. Gall v. United States, 552 U. S. 38, 52 n. 7 ("District judges sentence, on average, 117 defendants every year.").
230. Koon v. United States, 518 U. S. 81, 98(1996).
231. See United States v. Booker, 543 U. S. 220, 259(2005)
232. (severing 18 U. S. C. § 3742 (e)
233. which applied a de novo standard of appellate review to non-Guidelines sentences, as specified in the PROTECT Act, Pub. L. No. 108-21, § 401, 117 Stat. 650, 670-74 (2003));
234. Gall, 552 U. S. at 46-47.
235. 18 U. S. C. § 3553 (a) (6).
236. United States v. Haynes, 557 F. Supp. 2d 200, 201-02 (D. Mass. 2008).
237. Haynes, 557 F. Supp 2d at 203.
238. (listing violations of 21 U. S. C. § 841 (a) (2006) (distributing controlled substances)
239. 21 U. S. C. § 860 (a) (distributing controlled substances within 1000 feet of a public housing facility)
240. and 18 U. S. C. § 2 (aiding and abetting)).
241. But see MANDATORY MINIMUM, supra note 2 (noting the 2010 increase in crack quantity triggering five-year mandatory minimum).
242. MANDATORY MINIMUM, supra note 2, at 5-6.
243. See John Ruch, FBI, Police Charge 23 in Drug Bust, JAMAICA PLAIN GAZETTE, Oct. 20, 2006 (listing the addresses of arrestees and noting that eleven of the defendants had been banned from the development for trespassing).
244. Kimbrough v. United States, 552 U. S. 85, 98(2007).
245. United States v. Haynes, 557 F. Supp. 2d 200, 202 (D. Mass. 2008).
246. See Sentencing Memorandum, supra note 29, at 5.
247. Haynes, 557 F. Supp. 2d at 203-04.
248. See Sentencing Memorandum, supra note 29, at 6.
249. U. S. SENTENCING GUIDEUNES MANUAL, supra note 179, §§ 5H1.2, 5H1.5.
250. Haynes, 557 F. Supp. 2d at 205 (describing how the Guidelines rely on drug quantity as a "proxy for culpability" even though the Guidelines do not explain how drug quantity is supposed to measure the seriousness of an offense).
251. See generally Carissa Byrne Hessick, Why Are Only Bad Acts Good Sentencing Factors?, 88 B. U. L. REV. 1109 (2008) (describing how the Guidelines use bad acts as aggravating sentencing factors, but fail to credit good acts as mitigating sentencing factors).
252. Haynes, 557 F. Supp. 2d at 201
253. (referring to 21 U. S. C. § 860 (a) (2006), which applies to drug distribution within 1000 feet of a public housing facility).
254. (citing U. S. SENTENCING GUIDELINES MANUAL, supra note 179, §§ 2D1.1 (c) (10), 2D1.2 (a), 3E1.1 (a) - (b)) (in order: drug table, two-level increase for drug distribution involving a protected location, and up to a three-level reduction for pleading guilty). The district court reduced his range to twenty-seven to thirty-three months because he was a minor participant in the crime.
255. (citing U. S. SENTENCING GUIDELINES MANUAL, supra note 179, § 3B1.2).
256. 28 U. S. C. § 994 (e) (2006) ("The Commission shall assure that the guidelines and policy statements, in recommending a term of imprisonment or length of a term of imprisonment, reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant.").
257. See U. S. SENTENCING GUIDELINES MANUAL, supra note 179, § 5H1.1 introductory cmt.
258. see also Dan Markel, Jennifer M. Collins & Ethan J. Leib, Criminal Justice and the Challenge of Family Ties, 2007 U. ILL. L. REV. 1147, 1198 n. 283 (2007) (suggesting that the harsh impacts of criminal laws on families could be redressed by policy changes, for example in drug enforcement statutes and sentencing policies that do not turn on family status). After Booker, courts have reviewed departures based on family ties for abuse of discretion.
259. See United States v. Menyweather, 447 F.3d 625, 633 (9th Cir. 2006).
260. See U. S. SENTENCING GUIDELINES MANUAL, supra note 179, § 5111. 2, 1.5.
261. Gall v. United States, 552 U. S. 38, 49(2007) (stating that the Guidelines are seen to secure nationwide consistency and are listed among the factors to be weighed at sentencing).
262. See J. Nancy Gertner, From Omnipotence to Impotence: American Judges and Sentencing, 4 OHIO ST. J. CRIM. L. 523, 535(2007);
263. see also Birte Englich & Thomas Mussweiler, Sentencing Under Uncertainty: Anchoring Effects in the Courtroom, 31 J. APPLIED SOC. PSYCHOL. 1535, 1536(2001).
264. Gall, 552 U. S. at 46, 50 (suggesting that a major departure requires more justification than a minor one). The district court's failure to properly calculate the applicable Guidelines may be reversible error.
265. Gall, 552 U. S. at 46.
266. Pepper v. United States, 131 S. Ct. 1229, 1249 ("At root, amicus effectively invites us to elevate two § 3553 (a) factors above all others. We reject that invitation. ").
267. See 18 U. S. C. § 3553 (a) (1) (2006);
268. Pepper, 131 S. Ct. at 1239-40.
269. See 18 U. S. C. § 3553 (a) (2).
270. See Gall, 552 U. S. at 49 (noting that the Guidelines are seen to "secure nationwide consistency").
271. See UNITED STATES SENTENCING COMM'N, POST-Kimbrough/Gall PATA REPORT (2008).
272. Gall, 552 U. S. at 55-56.
273. United States v. Haynes, 557 F. Supp. 2d 200, 206-08 (D. Mass. 2008).
274. See generally Erica J. Hashimoto, Class Matters, 101 J. CRIM. L. & CRIMINOLOGY 31 (2011) (explaining that no complete data have been collected on the economic status of defendants in state or federal courts).
275. See Haynes, 557 F. Supp. 2d at 206-08.
276. See, e.g., Federal Crime Victims' Rights Act, 18 U. S. C. § 3771 (a) (4) (2000) (providing the right of a crime victim to be "reasonably heard" at sentencing);
277. see also Douglas E. Beloof, Constitutional Implications of Crime Victims as Participants, 88 CORNELL L. REV. 282, 299-305 (2003) (identifying state laws that permit victims to testify at sentencing).
278. See generally Sarah Abramowicz, Rethinking Parental Incarceration, 82 U. COLO. L. REV. 793 (2011);
279. Myrna S. Raeder, A Primer on Gender-Related Issues That Affect Female Offenders, CRIM. JUST., Spring 2005, at 4;
280. Haynes, 557 F. Supp. 2d at 207 n. 12 (noting that in 2004, approximately 1.5 million children in the United States had a parent in prison)
281. (citing JEREMY TRAVIS, BUT THEY ALL COME BACK 119 (2005)).
282. Haynes, 557 F. Supp. 2d at 207-08 (prohibiting Haynes from returning to Bromley-Heath during his six-year supervised release).
283. United States v. Garrison, 560 F. Supp. 2d 83, 84-85 (D. Mass. 2008).
284. See Ryan W. Scott, Inter-Judge Sentencing Disparity After Booker: A First Look, 63 STAN. L. REV. 1, 21-22 (2010) (analyzing inter-judge sentencing disparities from 2001 to 2008, based on sentencing data from the District of Massachusetts).
285. Haynes, 557 F. Supp. 2d at 204-05.
286. Haynes, 557 F. Supp. 2d at 201 (noting that one of Haynes's co-defendants had been sentenced, but not the other).
287. See United States v. Garrison, 560 F. Supp. 2d 83, 83 (D. Mass. 2008) (stating that in another drug trafficking sweep in the District of Massachusetts involving twenty-one federal defendants, the defendant was the sole defendant named in the indictment, and in the part of the presentencing report listing "related cases", the probation officer wrote "none.").
288. See J. Michael, A. Wolff, Evidence-Based Judicial Discretion: Promoting Public Safety Through State Sentencing Reform, 83 N. Y. U. L. REV. 1389, 1412-15 (2008);
289. United States v. Haynes, 557 F. Supp. 2d 200, 202-04 (D. Mass. 2008).