The U.S. Sentencing Commission is in the process of determining the issues that it will prioritize 2013. The commission embarks on this process every year and invites the public to suggest what it thinks the commission should concentrate its efforts on for the upcoming year.

While there is nothing new about the commission prioritizing tasks such as drafting sentencing guidelines for newly enacted legislation, what is new this year is that both the ACLU and the Department of Justice (and likely other organizations) have identified the growing crisis of the federal prison population as a priority that the commission should focus attention on.

In our public comments, the ACLU encouraged the Sentencing Commission to prioritize the use of its authority to address this urgent situation that exists in the Federal Bureau of Prisons (BOP). Currently, there are a record 218,000 people in BOP custody who are confined within agency-operated facilities. Estimates project that the population will reach approximately 229,300 by the close of FY 2013. Over the last 30 years, the population of the federal prison system has increased by nearly 800 percent, mostly due to the overrepresentation of those convicted of low-level drug crimes – who committed no violent crime and had very little involvement in the broader drug trade.

Although the BOP is operating at almost 40 percent over capacity and overcrowding has created very dangerous conditions for both corrections staff and inmates, we cannot build ourselves out of this crisis. Building prisons will not reduce the number of people who are being sentenced to lengthy and harsh sentences in federal courts across the country. Many state governments have been forced to recognize this reality in the face of fiscal crises and are making smart investments in alternatives to mass incarceration. These investments have resulted in a reduction in the number of people behind bars while protecting public safety, saving taxpayer dollars and ensuring fairness for all.

The Department of Justice recognizes the critical nature of the exploding prison population and has said that “the surging, unsustainable federal prison population be addressed,” lest it “engulf the Justice Department’s budgetary resources.” Last week, Lanny Breuer, the Assistant Attorney General for the Criminal Division acknowledged in DOJ’s recommendations to the Sentencing Commission that “[t]he federal prison system is a product of federal sentencing in its size and scope. . . prisons are essential for public safety. But maximizing public safety can be achieved without maximizing prison spending.”

For 2013, we encouraged the Commission to prioritize policies that will change the course of unrestrained incarceration, and turn its attention to viable and fiscally sound sentencing policies that will make prison a punishment of last resort.