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October 21, 2009

Report on start of US Sentencing Commission regional hearing in Denver

The Denver Post has this new article, headlined "U.S. Sentencing Commission hears from judges, prosecutors in Denver," reporting on the start of the USSC's latest regional hearing. Here are some of the details:

A federal judge in Denver told the U.S. Sentencing Commission he is concerned about the treatment of war veterans in the criminal court system and the fairness of sentencing in some child-pornography cases.

The commission solicited testimony Tuesday from federal judges, prosecutors, probation officers and community groups during a public hearing at the Hyatt Regency hotel in downtown Denver. The hearing continues today with testimony from federal public defenders and more district judges....

U.S. Senior District Judge John L. Kane asked the commission for more clarity about why the federal sentencing guidelines are set to certain terms for various offenses. The judge said he has asked lawyers and probation officers why a particular sentence needs to be applied and often hears, "because the guidelines say so."

"It's not a matter of logic or a matter of reason," Kane said. "None of them could answer the following question — 'Why do the guidelines recommend that particular range?' "If, as a sentencing judge, I am to consider the advice of the guidelines and follow it, then the reason for the guidelines must be considered," Kane said. "Sometimes a reasoned argument can change a judge's mind, but otherwise what we have is an ideological food fight."

Colorado U.S. Attorney David Gaouette testified he is concerned judges are inconsistent in following the commission's sentencing guidelines. "Of the six federal judges in our district, three follow the guidelines, one sometimes does and two do not use the guidelines," he said. "One judge has told one of my (prosecutors) that the sentencing guidelines are arbitrary and would not be followed."

October 21, 2009 at 10:26 AM | Permalink

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Comments

"Of the six federal judges in our district, three follow the guidelines, one sometimes does and two do not use the guidelines," he said. "One judge has told one of my (prosecutors) that the sentencing guidelines are arbitrary and would not be followed."

The Guidelines are not nearly as arbitrary as a system where the sentence will follow the Guidelines or not based solely on the random selection of the judge to be assigned to the case.

Posted by: Kent Scheidegger | Oct 21, 2009 11:06:18 AM

Pick your poison, an arbitrary "thinking" judge trying to point out the inequities in the system or the judge to lazy to think for himself and challenge a bureaucratic mess that no one, including congress, despite studies and hearings up the kazoo, has the guts to change.

Posted by: Just Saying | Oct 21, 2009 1:14:23 PM

I think Just Saying wins this round on points, Kent. As you surely know, application of the death penalty often depends on the "random" selection of the jury. Would you prefer a system of "Guidelines" that provide that nobody can get death (or even LWOP) for their first killing?

You, Kent, should appreciate that it is folks who truly want no death penalty who so often complain about disparity in its application. You thus should realize that folks who complain about disparity in federal sentencing often have another agenda.

Posted by: Doug B. | Oct 21, 2009 6:35:25 PM

I wouldn't mind a system of mandatory "guidelines" for the death penalty, but not as narrow as you suggest. However, the Supreme Court said we can't in Woodson (but see Justice White's dissent), so we go with what is left.

The fact that *some* of the people making an argument have another agenda does not mean that everyone making it does or that the argument is not valid.

As for federal noncapital sentencing, I do not have an agenda to make it tougher overall, and in some cases I agree it is excessive. My concern about disparity from the differing opinions of individual judges is just that.

Posted by: Kent Scheidegger | Oct 21, 2009 7:23:06 PM

Doug B.

I am surprised you would endorse an implication that the sentencing guidelines are arbitrary.

I am also disappointed you would impugn those who have rightful concerns about disparity as having some other, sinister agenda.


Posted by: mjs | Oct 21, 2009 8:40:21 PM

Concern about disparity from the differing opinions of individual judges is exaggerated. The advisory Guideline system is working. It results in more just sentences, and gives feedback to the Commission so it can create better Guidelines. Variances are not "arbitrary," but must be based on reason.

Further, it's probable that Mr. Gaouette's description of the judges in Colorado is hyperbolic. If judges didn't calculate and consider, or "use" the Guidelines, it's an easy reversal. What he likely dislikes is that some judges truly consider 3553(a) and conduct an indepedent analysis, as instructed by the Supreme Court.

Posted by: DEJ | Oct 21, 2009 9:01:43 PM

The lawyer forgets the aim of the criminal law is to protect the public, and nothing else matters. All other aims are immature, worthless, to the owner and funder of the system, the taxpayer. The aim is not to provide lawyer jobs.

We have an off-on-off, naturalistic, human experiment going. It is run by a bunch of incompetent dumbasses (a lawyer term of art, not an epithet), playing with the lives of the public. If making guideline discretionary (off) results in higher crime rates because of less incapacitation, that outcome validates making them mandatory (on).

Posted by: Supremacy Claus | Oct 22, 2009 5:06:20 AM

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