Assistant Attorney General Lanny Breuer Gets It (Half) Right

Assistant Attorney General Lanny Breuer has a lot to say on our country’s criminal system – some good, some bad.

That was clear from a speech he made Tuesday to the American Lawyer/National Law Journal Summit that discussed the serious challenges facing sentencing and corrections policy in the United States. In his remarks, Breuer raised concerns about how we help formerly incarcerated individuals become productive members of society, as well as what he understands to be disparities in how people are sentenced in the federal system.

First and foremost, AAG Breuer is entirely correct when he says that a person’s story is not finished once he or she is sentenced to prison. Simply locking people up and forgetting about them is both immoral and irresponsible. In order to keep our communities safe and reduce crime, we must provide incarcerated individuals with the tools to turn their lives around once they are released.

As Attorney General Eric Holder put it, “We must use every tool at our disposal to tear down the unnecessary barriers to economic opportunities and independence so that formerly incarcerated individuals can serve as productive members of their communities.”

It was this belief that led Congress to pass the Second Chance Act in 2008, which provides funding for employment assistance, substance abuse treatment, mentoring, victims support and other services geared at reducing recidivism. Unfortunately, our current fiscal situation has put all government spending on the chopping block – including the Second Chance Act. Nonetheless, the ACLU is pleased to hear that the Justice Department considers Second Chance Act programs to be succeeding and hopes the Department will urge Congress to continue fully funding these indispensable initiatives.

While AAG’s Breuer’s comments about the need for robust re-entry programs are very encouraging, he went on to make a problematic assertion: that sentencing disparities have increased since the Supreme Court’s decisions in U.S. v. Booker and Gall v. U.S., which ended mandatory sentencing and implemented an advisory guideline system. Although the ACLU and others have already addressed the flaws contained in this belief, it appears to have turned into a zombie claim that keeps coming back from the dead.

The truth is, while racial disparities are rife in our criminal justice system, the change from mandatory to advisory sentencing guidelines is not a contributor to this deeply troubling reality.

The source of this confusion is a March 2010 report by the U.S. Sentencing Commission, which showed an increase in sentencing differences between black and white male offenders between 2005 and 2009 (the period following the implementation of our current advisory sentencing system). But this assertion is misleading: in fact, the Commission's report conceded that under a more expansive analysis spanning between 1999 and 2009, the greatest difference in the length of sentences between black and white offenders occurred in 1999, when sentencing was mandatory. And further, researchers at Pennsylvania State University analyzed the Commission's data sets with different methodology and found “racial and gender sentence length disparities are less today, under advisory Guidelines, than they were when the Guidelines were arguably their most rigid and constraining.”

Despite his misguided assertion about sentencing disparities, AAG Breuer’s statement is an essential part of an important and ongoing dialogue. With ballooning prison populations and shrinking budgets, now is the time for serious thought about how we sentence individuals and how we treat those people once they are sentenced.

If we want to reduce recidivism, ensure public safety and give those who are incarcerated the opportunity for redemption, we must continue funding the Second Chance Act and similar rehabilitation and education initiatives. If we want to reduce the uncontrollable cost of incarceration, we cannot go back to the days when judges had no discretion in how long a sentence a person would receive in their courtroom.

CORRECTION: A previous version of this post stated that AAG Breuer gave the speech on Wednesday. That was incorrect. It was Tuesday.

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