When the decision in Miller v. Alabama * (1) was announced, my colleagues and 1 at Families Against Mandatory Minimums (FAMM) cheered its ringing endorsement of proportionality and individualized sentencing. FAMM, after all, was formed in 1991 to champion sentencing discretion and work to eliminate laws and policies that require judges to impose pre-set minimum sentences. In its earliest days, FAMM found its unique voice by gathering, distilling, and telling the stories of individuals who received disproportionate sentences because of mandatory sentencing laws. Part of our job to this day, more than twenty-two years later, remains to tell anyone who will listen, and especially lawmakers, that a defendant facing sentencing deserves to be seen as more than the crime for which he or she was convicted. An essential part of our work is giving a voice to people who were, for all intents and purposes, silenced at sentencing.
In this Article, I make the case that, while the robust proportionality principles informing Miller and similar cases are unlikely to translate into the end of mandatory minimum sentencing by way of the Eighth Amendment (at least anytime soon), embracing sentencing proportionality is the key for lawmakers who are--or should be--addressing the unsustainable growth in the federal prison population as a distinct threat to public safety. Politicians who support mandatory minimums have been immune over the years to the many reasoned arguments about how unjust those sentences are and what costs they pose to families and communities. Mandatory minimum sentences have been touted as necessary to keep the public safe, and support for these sentences has been seen as politically expedient. Even empirical arguments demonstrating that getting rid of mandatory sentencing will not harm public safety have fallen on deaf ears. We grew a criminal justice system addicted to solving social and public safety problems with incarceration and we combined that system with a long-simmering distrust of the judiciary, thereby creating mandatory minimums that dominate the sentencing field, directly and indirectly, through their sentencing guideline proxies.
However, today federal lawmakers face a new challenge: the burgeoning prison population consumes an ever-growing portion of the budget of the Department of Justice (DOJ). (2) This threatens the budgets for the DOJ's other components, including those directly responsible for public safety, such as the FBI, and those that fund grants to state and local law enforcement. A number of states--including conservative states--for which the problem of over-incarceration surfaced with greater urgency over the last seven years initiated measures to stabilize their prison populations, if not reduce them. (3) Those states were laboratories for change and caught the attention of traditional supporters of harsh sentencing policies: conservative lawmakers and opinion leaders who are speaking out about mass incarceration, the influence of sentencing, and even mandatory minimums. Some of these conservative politicians and opinion leaders even made common cause with their liberal counterparts to take a look at over-criminalization, over-federalization, and even early release mechanisms.
In this Article, I draw a connection between mandatory minimum sentencing and the growth of the federal prison population; mandatory minimums have required and influenced unduly lengthy sentences that are neither individualized nor proportionate. Proportionate sentencing, on the other hand, results in lower sentences, not to mention bed and cost savings. While "back-end" reforms to encourage the earlier release of prisoners are commendable, front-end reforms that result in lower sentences are essential if we are to make a lasting impact on the size of the federal prison population. Sentencing policies that embrace proportionality are key to stabilizing and reducing overcrowding. …