The Austin Chronicle

Judges Seek Alternatives to Incarceration

By Jordan Smith, November 27, 2009, News

At a meeting of the U.S. Sentencing Commission last week, Judge William K. Sessions III (r) said that federal judges are interested in seeing more alternatives to incarceration included in federal sentencing guidelines. "There is real interest in alternatives," said Sessions, who chairs the commission, "especially for low-level, nonviolent drug offenders."

The commission was in Austin Nov. 19-20 for the sixth of seven meetings to hear from stakeholders – prosecutors, defense attorneys, and judges – on the relevance of federal sentencing guidelines a quarter-century after they were created and four years after the U.S. Supreme Court ruled that they could no longer be taken as mandatory. In 1984, Congress passed the federal Sentencing Reform Act, which created the commission and tasked it with writing guidelines on the range of sentencing options available to judges for every type of federal crime. In 2005, the supremes ruled that those guidelines could no longer be considered mandatory – they must be advisory, returning to federal judges the discretion to consider the circumstances of individual defendants when deciding what punishment to mete out.

That ruling has created some difficulty within the system – including a resurgence of disparate sentences, said Chief Judge Edith Jones of the 5th Circuit Court of Appeals. The 5th Circuit, which includes Texas, carries 25% of the entire federal appellate docket, Jones noted, and "therefore we can see the products of the guidelines." Still, said 5th Circuit Judge Fortunato Benavides, the guidelines are working: "I think you get uniformity as an ideal, but there's got to be room for discretion."

Nonetheless, the guidelines currently contain few alternatives to incarceration, such as options for home confinement and intermittent confinement; judges "in particular" are saying that those should be expanded, said Sessions. Practitioners within the federal system say treatment programs have been "very successful," he said, including reducing recidivism. The various available alternatives need "further exploration" before they're made part of the guidelines – which are written by the commission and then adopted whole unless changed by Congress – but Sessions said that the commission intends to take a "real leadership role in looking at these kinds of programs" and evolving the guidelines as needed. (Sessions said the commission will also soon be tackling questions about the use of mandatory minimums in federal sentencing; a report on the topic is due next October.)

Testimony from the two-day hearing can be found at

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