Stanford expert endorses push for federal prison sentencing reform

Stanford School of Law Professor David Sklansky advocates overhauling federal prison sentencing guidelines that have locked up millions of Americans – many of them young black men – for nonviolent crimes. One big problem is the proliferation of mandatory minimum sentencing laws.

Sakhorn/Shutterstock man in prison

Stanford School of Law Professor David A. Sklansky says momentum in Congress for federal sentencing reform is a step in the right direction.

It is time to fix the flaws of the U.S. justice system, which is bloated, costly and harsh, a Stanford law professor says.

A growing bipartisan consensus in Congress is building for federal criminal justice reform. That is a step in the right direction, according to David A. Sklansky, a Stanford professor of law and a former federal prosecutor. He teaches and researches criminal law and has written extensively on police reform, democracy and law enforcement.

The Stanford News Service recently interviewed Sklansky on the subject:

Why is there a need for federal sentencing reform?

Because we lock up too many people for too long. The only country in the world with an incarceration rate higher than the United States is Seychelles, which is roughly as populous as Redwood City, Calif. No other major nation gives us any serious competition. We've run away with this prize, and it's not one we should want.

Prison is expensive, and it's destructive.  It takes years from the lives of prisoners, of course, and often houses them in deplorable conditions, in part because of rampant overcrowding.  It can damage the families and the communities of prisoners, too – in part by dumping prisoners back into their communities when their sentences are finally completed, hardened and without skills. And prisoners in the U.S. are disproportionately African American and Latino, which means that the families and communities hurt by incarceration are disproportionately families and communities of color.

Some people need to be locked up, of course, precisely to protect their communities. But our system of incarceration has grown well beyond any reasonable bounds. Federal prisons, for example, now have more than 35,000 inmates old enough to join AARP; 10,000 of them are over the age of 60.

Why are the "safety-valve" provisions for judges important?

It's hard for prosecutors to be both zealous advocates and also dispassionate adjudicators. That's why we have judges. But many federal offenses involving drugs or guns carry stiff mandatory minimum prison terms, which means that prosecutors can essentially pick the sentence when they decide what charges to file. However, federal law contains a "safety-valve" provision that waives these mandatory minimum sentences for a very narrowly defined group of offenders.

The safety valve applies only in cases where (a) no one was hurt; (b) the defendant didn't use violence, threaten violence, or have a gun; (c) the defendant had at most a minimal history of prior convictions; (d) the defendant didn't lead or organize others in the offense; and (e) the defendant told the authorities everything he knew about the crime.

Tens of thousands of federal drug defendants have benefited from the safety valve provision since it was adopted 20 years ago, saving taxpayers hundreds of thousands of dollars. But because the provision is so narrow, many defendants still receive mandatory sentences far longer than they need or deserve. Three quarters of federal drug defendants are ineligible for the safety valve, and it's completely inapplicable to mandatory minimum sentences for gun offenses. Lots of people think the safety valve should be expanded.

How do you explain the bipartisan support for such reform?

Part of it is that crime rates have fallen and the recession has taken a toll on government budgets. I think there's also a recognition, across the political spectrum, that we shouldn't be throwing lives away, even those of people who've done bad things.

What's sobering is how long we took to get to this place. Crime rates started to decline two decades ago.

What would you like to see the new law include?

Expanding the safety valve is a good idea, but I'd like to see Congress go further and repeal most – if not all – of the mandatory minimum sentences required by federal law. That would still leave in place the federal sentencing guidelines, which have helped to make sentences more consistent while preserving judges' discretion.

At a minimum, I'd like to see Congress expand the safety valve to gun cases. Gun violence is a terrible plague, and lots of people who use guns to hurt or to threaten others need to be locked up. But federal law requires five years of additional incarceration for any defendant convicted of "using" or "carrying" a firearm "during and in relation" to drug trafficking or a crime of violence. A second violation of that provision carries a mandatory prison term of 25 years.

So, if a defendant has a gun in his backpack during two separate sales of cocaine or two residential burglaries, and the prosecutor decides to charge two violations of the "use or carry" law, that's a mandatory sentence of 30 years – five years for the first carrying offense and 25 for the second one – over and above whatever sentence is imposed for the drug dealing or the burglaries. It doesn't matter if the gun was unloaded, if it didn't work, or if the two crimes happened on the same day and were completely out of keeping with the defendant's character. These penalties are excessive by any reasonable measure, and they place way too much power in the hands of prosecutors.

It's comforting to think we can draw a clear, sharp line between truly dangerous prisoners and people who don't pose any threat – between hardened criminals and, say, people convicted of nonviolent drug offenses. But people are more complicated than that. And, if we want to make serious reductions in our national prison population, we can't focus just on nonviolent, first-time drug offenders.

David A. Sklansky, Stanford Law School: (650) 497-6580,

Clifton B. Parker, Stanford News Service: (650) 725-0224,