On May 24, the Center on the Administration of Criminal Law (CACL) and the Federal Bar Council co-hosted “Federal Sentencing at a Crossroads: A Call for Leadership” at NYU School of Law. The panel discussion assembled expert attorneys, prosecutors, and judges, including: Professor Rachel Barkow, who is also faculty director at CACL; United States Representative John Conyers, Jr. of Michigan, who is the Chairman of the Committee on the Judiciary in the House of Representatives; John Gleeson, U.S. District Judge for the U.S. District Court for the Eastern District of New York; criminal defense attorney Anthony Ricco; William Sessions, chief judge of U.S. District Court for the District of Vermont and Chair of the U.S. Sentencing Commission; Alan Vinegrad '84, a partner at Covington & Burling and former U.S. Attorney in the Eastern District of New York; and Jonathan Wroblewski, director of the Office of Policy and Legislation in the Criminal Division of the U.S. Department of Justice.

[Jump to video below]

Using non-violent drug sentences as a starting point, moderator and Adjunct Professor Gleeson focused the panel on the issues of excessively punitive sentencing, mandatory minimum sentences, and the sentencing disparity between crack cocaine and powder cocaine offenses (the “100-to-1” ratio calls for the same minimum sentence for possessing one gram of crack as possession of 100 grams of cocaine). “[Non-violent drug sentences are] the one setting in which I believe it can fairly be said that all three institutions that set federal sentencing policy—the Congress, the Commission, the Department of Justice—agree, at least when it comes to crack cocaine, that significant change is needed,” Gleeson said. “But it still eludes us.”

“The criminal justice system is a very sensitive subject—it is the one area of the Committee on the Judiciary’s jurisdiction, excluding the corrections system itself, that is most in need of reform,” Conyers said, adding that he was pleased that the Law School had an entire center devoted to the important topic of  the administration on criminal law. Conyers and Barkow underscored the political barriers that have kept the crack-powder disparity in place for almost 25 years. Partisan politics, Conyers said, have stunted meaningful conversation on the topic. Barkow, meanwhile, wondered if integrating fiscal costs and benefits when considering policies would counter the inherent political strife.

Sessions challenged the sentiment of some critics that the Commission is responsive to only Congress, while giving less attention to the executive and judicial branches. “The role of the Sentencing Commission is most extraordinary in American government,” Sessions said. “We are at the junction of three branches of government, all insisting upon their branch being the determinative one in terms of sentencing policy. …The role of the commission is to reflect all three branches.”

Vinegrad commended the judicial branch for decisions such as United States v. Booker, in which the Supreme Court ruled that the sentencing guidelines should be advisory and invalidated the provisions that made the guidelines mandatory. “To me, it’s the judiciary that has stepped into the breach, and tried to restore some sanity through judges using their experience and wisdom and discretion to impose sentences that have some bearing on reality,” Vinegrad said.

Ricco called for a more personal approach to sentencing. “In the post-Booker era, with the guidelines at a crossroads, what is needed in terms of leadership is courage,” said Ricco. He suggested that this courage take its form in the courtroom: from defense lawyers to learn about and articulate their clients’ lives and circumstances; from judges, to be willing to listen and not pre-judge defendants; and from prosecutors, not to aim just for maximum sentences. “There’s an education process that needs to go on in our country about what we’re doing to people when we’re reconciling the harm that’s done to a victim against the measure of punishment that is necessary in order to bring about the longer goals of Congress,” Ricco said.

Watch the full video (1 hr 49 min):

Posted May 27, 2010