Three times per week, Colin Fitzpatrick strides into his swampy backyard in Mobile, Alabama ready for a fight. He limbers up with some yoga, tapes his forearms like a boxer, and eyes his opponent. He hefts a sword. What he lacks in training, he makes up for with passion and energy. When he’s ready, he brings down his wooden weapon, repeatedly whaling on a couch-cushion dummy propped up with two-by-fours and expertly tied rope. He’s not a fencer or martial artist. He’s just a frustrated federal public defender who needs to blow off some steam.
The U.S. criminal justice system is one of the largest in the world, comprised of a labyrinth of federal, state, local, and tribal systems. It holds nearly 2 million people in detention facilities at all levels of the system.[i] Colin’s job is to defend people tried for crimes at the highest level of that system, the federal level. As a whole, the system employs roughly 3 million people,[ii] costs at least $182 billion dollars a year, and has the highest incarceration rate in the world. [iii] This is due, in part, to strict sentencing laws requiring long prison sentences.
Some prosecutors see themselves as righteous crusaders against criminals. Former Attorney General Bill Barr said in a 2019 speech, “[law enforcement is] fighting an unrelenting, never-ending fight against criminal predators in our society. While there are battles won and lost each day, there is never a final resolution—a final victory is never in sight.”[iv]
But Colin sees things differently. “The way we enforce laws isn’t making anyone safer. Someone with a criminal record gets caught carrying a gun. They’re not supposed to have it. But what are they supposed to do? They live in a bad neighborhood. Their brother-in-law just got robbed at gunpoint. Their friend’s house got shot up. We’re not dissuading anyone from carrying a gun. We’re just punishing people too poor to have better options.”[v]
When Colin gets assigned a case, it’s often not a question of whether his client will go to prison, but for how long. “I get cases with bad facts. If I was at a poker table, I’d be getting dealt a hand out of a deck with all the face cards removed,” he said.[vi]
Colin says that where state law enforcement is typically reactive, the federal system is proactive. Since most felonies are prosecuted at the state level, federal prosecutors are selective with the cases they try. “They only step in when they have a slam dunk,” he says.[vii] As a result, Colin spends most of his time negotiating the amount of time his clients will spend in prison. These sentencing negotiations are steeped in a complicated history.
The 1970s brought an unprecedented explosion in the size of the criminal justice system. In the wake of the 1960s Civil Rights Movement, racial fears and stereotypes fueled a spate of tough-on-crime legislation that increased law enforcement and enacted stricter sentencing laws.[viii] In 1965, President Lyndon Johnson declared a War on Crime. In his 1968 and 1972 presidential campaigns, Richard Nixon employed rhetoric tying together street crime and civil rights activism. This political tactic, known as the Southern Strategy, set the stage for the mass incarceration movement.[ix]
In 1984, Congress passed the Sentencing Reform Act (SRA),[x] creating the United States Sentencing Commission. The Commission instituted strict sentencing guidelines that judges were required to follow, based on supposedly fair and objective data. In reality, they vastly increased disparities in racial sentencing and the time people convicted of crimes spent in prison. After the guidelines went into effect, the average federal sentence nearly doubled from 28 months to almost 50 months.[xi]
“The system worked under the base assumption that long prison sentences are better,” said Colin. “The paradigm was, and still is, we are going to hand out long prison sentences at the federal level and that’s going to deter crime.”[xii]
The system implemented by the SRA works like a sentencing algorithm. Once a defendant is convicted of a crime, the judge assigns them an offense behavior category (e.g. bank robbery committed with a gun, $2500 taken) and an offender characteristic category (e.g. offender with one prior conviction not resulting in imprisonment). The system gives a range of sentencing lengths based on the two criteria together.[xiii]
The rules transformed the sentencing of people with minor criminal histories. Suddenly, judges were required to send people with mild prior offenses to prison, where they were once given probation. The rules remained mandatory until 2005, when the Supreme Court delivered a decision that changed them to “advisory.” Still, many judges deliver rulings with sentences well within the guidelines.[xiv]
In recent years, activists and lawmakers have advocated successfully for reforms to combat excessively punitive sentencing. In 2018, Congress passed and President Donald Trump signed the First Step Act. The law gave judges more sentencing discretion, reduced some mandatory minimums, and gave federally incarcerated people greater ability to reduce their sentences.
“The First Step Act did a lot of good. It used to be that there wasn’t much ability to reduce federal sentences. You had to do at least 85% of your sentence even with good behavior. Now, you can earn more time and only serve 65% of your sentence,” said Colin.[xv]
The Biden Administration has made further reforms. In November of 2023, The United States Sentencing Commission released sweeping changes to its sentencing guidelines. One of the most important changes eliminated lengthened sentences for offenders on parole at the time of their offense. The changes retroactively reduce sentencing guidelines for an estimated 11,000 federal inmates.[xvi]
Some of these inmates are Colin’s clients. Since the rule changes went into effect, he’s been working to reduce the sentences of as many of his clients as possible. However, his work can feel like a drop in the bucket. “All I can do is throw the single, metaphorical starfish back into the ocean. At an individual human level, every day you’re not in prison counts, and there’s things I can do to minimize that human suffering,” he said.[xvii]
Though the system often feels too big and too destructive to truly tame—even with the recent reforms—Colin has made a sort of peace with his role inside it. “I’ve settled into my little role. I can help the individuals that cross my path. I can make my little empathetic connection with them. I can tend my little garden. Make my little corner of the machinery as bloodless as I can. That’s what I can do. And while I dream of a better system, I’ll smash a dummy with a wooden sword.”[xviii]
[i] Wendy Sawyer and Peter Wagner, “Mass Incarceration: The Whole Pie 2024,” Prison Policy Initiative. accessed November 11, 2024, https://www.prisonpolicy.org/reports/pie2024.html.
[ii] Whiton, Jacob “In Too Many American Communities, Mass Incarceration Has Become a Jobs Program,” Brookings, accessed November 11, 2024, https://www.brookings.edu/articles/in-too-many-american-communities-mass-incarceration-has-become-a-jobs-program/.
[iii] Wendy Sawyer and Peter Wagner, “Mass Incarceration: The Whole Pie 2024,” Prison Policy Initiative. accessed November 11, 2024, https://www.prisonpolicy.org/reports/pie2024.html.
[iv] “Office of Public Affairs | Attorney General William P. Barr Delivers Remarks at the Grand Lodge Fraternal Order of Police’s 64th National Biennial Conference | United States Department of Justice,” August 12, 2019, https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-remarks-grand-lodge-fraternal-order-polices-64th.
[v] Colin Fitzpatrick, interview with author, February 15, 2024.
[vi] Ibid.
[vii] Ibid.
[viii] Delaney, Subramanian, Shames, and Turner. “American History, Race, and Prison.” Vera. October 2018. https://www.vera.org/reimagining-prison-web-report/american-history-race-and-prison.
[ix] “American History, Race, and Prison,” Vera Institute of Justice, accessed February 13, 2024, https://www.vera.org/reimagining-prison-web-report/american-history-race-and-prison.
[x] Deitrich and Adelman. “How Federal Judges Contribute to Mass Incarceration and What They Can Do About It | Judicature,” February 11, 2022, https://judicature.duke.edu/articles/how-federal-judges-contribute-to-mass-incarceration-and-what-they-can-do-about-it/.
[xi] Deitrich and Adelman. HYPERLINK “https://www.zotero.org/google-docs/?QtV0nd”“How Federal Judges Contribute to Mass Incarceration and What They Can Do About It | Judicature.”
[xii] Colin Fitzpatrick, interview with author, February 15, 2024.
[xiii] “Annotated 2021 Chapter 1,” United States Sentencing Commission, October 18, 2021, https://www.ussc.gov/guidelines/guidelines-archive/annotated-2021-chapter-1.
[xiv] Deitrich and Adelman. “How Federal Judges Contribute to Mass Incarceration and What They Can Do About It | Judicature.” https://judicature.duke.edu/articles/how-federal-judges-contribute-to-mass-incarceration-and-what-they-can-do-about-it/.
[xv] Colin Fitzpatrick, interview with author, February 15, 2024.
[xvi] “Significant Amendments to US Sentencing Guidelines Now in Effect,” accessed February 15, 2024, https://news.bloomberglaw.com/litigation/significant-amendments-to-us-sentencing-guidelines-now-in-effect.
[xvii] Colin Fitzpatrick, interview with author, February 15, 2024.
[xviii] Ibid.