Prisoners I Lose Sleep Over

Sentencing guidelines forced me to send them away for a long time. Now there's a chance to make things right.

The Senate Judiciary Committee approved the "Smarter Sentencing Act" by a bipartisan vote of 13-5 on Jan. 30, sending it to the Senate floor. The legislation is excellent and its passage would mean a long overdue correction of a misguided sentencing regime that Americans—including federal judges like me—have struggled with for more than two decades.

I've been on the federal bench for 30 years, having served 10 years as a magistrate judge and 20 as a U.S. district judge. My pride in our constitutional system runs bone deep: No system of law has ever existed that tries so hard to be truly fair. I can take scant pride, however, in the dark epoch our criminal sentencing laws have passed through during my decades handling felony cases.

In 1984, at the start of my career, 188 people were imprisoned for every 100,000 inhabitants of the United States. Other Western industrialized countries had roughly equal numbers. By 2010 that figure had skyrocketed to 497 people imprisoned in the U.S. for every 100,000 inhabitants. Today, we imprison more of our people than any other country in the world.

How did "the land of the free and the home of the brave" become the world's biggest prison ward? The U.S. now houses 5% of the world's population and 25% of its prisoners. Either our fellow Americans are far more dangerous than the citizens of any other country, or something is seriously out of whack in the criminal-justice system.

The capricious evolution of federal sentencing law makes the moral implications of this mass incarceration especially appalling. In 1987, all federal sentencing became subject to sentencing guidelines designed to smooth out disparities among sentences of different judges. This move was not in itself a bad thing; sentences for similarly situated offenders obviously ought to be roughly the same. The problem was that the appellate courts interpreted these guidelines so rigidly that judges like me were often forced to ignore individual circumstances and hit defendants with excessive—sometimes grossly excessive—sentences.

Then, in 2005, in a series of cases starting with United States v. Booker, the Supreme Court ruled that this lock-step interpretation of the sentencing guidelines was unconstitutional. The "application of the Federal Sentencing Guidelines," the court held in Booker, "violated the Sixth Amendment." To comply with the right to a jury trial in the Bill of Rights, the Supreme Court went on to say, the guidelines had to be deemed no more than advisory. After more than 15 years in a sentencing-guidelines straitjacket, judges were now empowered to do what was appropriate in light of the particular defendant's conduct and circumstances.

Consider the implications. Right now, scores of men and women remain in prison at huge cost serving excessive sentences that I was compelled to impose, often against my better judgment, under an interpretation of the sentencing guidelines now recognized as unconstitutional. But Booker and its subsequent sister cases were not deemed to have retroactive effect. So there my defendants sit, and there they will continue to sit, serving out prison terms that were imposed in a manner that violated the law.

A similar pattern followed with the Fair Sentencing Act, adopted in 2010 to reduce minimum-mandatory terms for dealers of crack cocaine. For years, I could recite the mandatory terms for crack in my sleep: five years for five grams, 10 years for 50 grams, 20 years for 50 grams with one prior conviction, life without parole for 50 grams with two priors—no discretion, no consideration of specific circumstances. These mandatory terms (unless the defendant cooperated by implicating others) were the same for low-level couriers, called mules, as for high-echelon drug lords.

By passing the Fair Sentencing Act, Congress recognized that this system of mandatory sentences, in addition to being unjust, was to some extent racially skewed since black drug users tend to favor crack, while whites prefer much less harshly penalized powder cocaine. Yet defendants sentenced before the act was passed still languish today, serving out sentences that virtually all members of Congress now recognize as excessive. And there is not a darn thing anyone can do about it. If you're the one doing the sentencing, this reality will keep you awake at night, believe me.

The Smarter Sentencing Act would reduce 20-year mandatory sentences to 10, 10-year sentences to five, and five-year sentences to two years. Increased numbers of offenders with very modest criminal records would not face mandatory sentences at all. If adopted, the law would also permit thousands of prisoners to seek reduction of their prison terms to bring them in line with the Fair Sentencing Act. None of these changes would reduce the power of judges to slam the really bad actors. But they would permit judges to do what they are paid to do: use their judgment.

Our vast prison apparatus is too costly, but more important, it is unworthy of us as a free people. This new statute is well named—now is the time for smarter sentencing.

Mr. Ponsor is a senior U.S. district judge in Springfield, Mass. He is the author of the novel "The Hanging Judge" (Open Road Media, 2013).