Many Americans, not just the courts, help shape the meaning of the Constitution in the nation’s life. In this continuing series, Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, explains the actual or potential contributions of these other individuals, groups, or institutions. Today’s Constitution-maker is the U.S. Sentencing Commission – the independent federal agency that makes policy governing the length of prison terms for those convicted of federal crimes. Last week, the Commission adopted a new policy that will help in two ways to serve the goal of the Eighth Amendment – barring “cruel and unusual punishment.”
One part of the Constitution’s Bill of Rights that can mean different things as times change is the Eighth Amendment. That Amendment is one that serves a basic moral goal of respecting the human dignity even of those who commit crimes, including the most serious crimes. It assumes, of course, that criminals do deserve punishment, but it mandates that punishment must stay within limits.
The Amendment declares that “cruel and unusual punishment” may not be “inflicted.” What is cruel and what is unusual are not defined in the basic document, so those words get their actual meaning from what society, from time to time, regards as “excessive.”
Over the years, courts have interpreted the provision to apply in two basic ways.
First, it limits the kind of punishment that can be meted out. Does it allow the death penalty, does it allow some forms of execution but not others, does it allow a sentence of life in prison without parole, does it allow very long sentences? Case by case, society works out what is acceptable, and what is not, usually guided by notions that the punishment should fit the crime and the individual who committed the crime. To give one example: the death penalty may not be imposed on an individual who is insane or who is mentally deficient, no matter how heinous the crime committed.
Second, the Amendment limits the kind of conditions under which a convicted individual can be held in prison. Being sent to prison is, itself, punishing, so day to day life behind the bars must be tolerable even when it is tough. Much discretion is left to prison wardens to run their institutions, but the Eighth Amendment curbs that discretion. To give examples: an inmate cannot be denied the right to practice a religious faith, cannot be denied basic medical care, and should not be held in conditions that add to violence or endanger health – such as serious over-crowding.
Since 1984, the system of punishment for those who commit federal crimes has been governed, at the policy level, by an independent agency, the U.S. Sentencing Commission. It drafts guidelines that are then implemented, case by case, by the courts. Its guidelines used to be mandatory, but the Supreme Court ruled in 2005 in the case of U.S. v. Booker that it is unconstitutional to have those guidelines binding on judges, although the judges must consider them in fixing sentences.
In writing sentencing policy, the Commission is fundamentally guided by both of the mandates of the Eighth Amendment: the guidelines should make the punishment fit the crime and thus not be too harsh, and they must not prolong unduly the exposure to life behind bars. The second mandate has grown increasing important, as a result of serious overcrowding of federal prisons – a condition that, inevitably, makes prison life more punishing.
The Commission has said that federal prisons exceed their design capacity by 32 percent, and that the over-capacity rises to 52 percent at the prisons that hold the most dangerous inmates – that is, the highest security facilities.
As the Commission’s chair, Federal Judge Patti B. Saris, said last week, “Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991.”
She made that comment as the Commission adopted a new policy that potentially could reduce the prison sentences – resulting in earlier release – of as many as 46,000 inmates sent to prison for drug crime convictions. That is nearly half of all federal inmates serving time for drug crimes.
That would be accomplished by making retroactive a policy change the agency had adopted in April, that reduces the guidelines for drug crimes by two statistical levels. The inmates potentially affected by this change were sentenced at a time when the length of time they served was determined by a simple formula, keyed largely to the quantity of drugs involved, that almost always resulted in a lengthier sentence. The change made in April widened the number of factors that have to be taken into account, with the effect that most sentences under that policy would be shorter. The April change affected only sentences that would be imposed from that point on.
Making that change retroactive would give it much wider impact, potentially easing the burden of many long sentences and reducing prison overcrowding. Because of concerns that, if put into effect immediately, retroactive implement could risk releasing many dangerous criminals, the Commission decided to postpone the start of the new system for a year, to give courts and prisons time to adapt. And it ruled that each inmate would have to justify earlier release, case by case, before a federal judge.
“We listened very closely to the law enforcement community,” Judge Saris said, “and the amendment we voted for today seeks to address concerns about public safety.”
Under the law controlling the Commission’s work, Congress has the power to veto the new policy change. But it has only until November 1 to make up its mind. After that, if there is no veto, judges could begin processing the predicted flow of pleas by thousands of federal inmates to reduce their sentences.
If Congress leaves the new approach intact, Judge Saris and her colleagues on the Sentencing Commission will have enhanced their roles as Constitution-makers, for filling in further the meaning of the Eighth Amendment.
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