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April 30, 2010

Why the proposed new federal guideline amendments are symbolically important

There are lots of practical and technical reasons why the proposed new federal guideline amendments released today by the US Sentencing Commission (basics here) are quite important and potentially very consequential for the day-to-day work of litigants and judges in the federal sentencing system.  But, the ivory-tower academic in me cannot help but suggest that folks note and reflect upon the symbolic importance of these new amendments.  Let me explain.

First, these amendments are really the first set of changes to the US Sentencing Guidelines that fully and formally reflect the import and impact of the Supreme Court's decision in Booker.  It is pretty crazy and sad that it has taken the USSC more than five years to fully deal with Booker as the law of the land, but it is also quite significant and telling that the Commission is now making sure that the guidelines expressly take account of post-Booker realities.

Second, and even of greater symbolic import, virtually all of the Commission-driven proposed amendments in this cycle are intended to (and are likely to) reduce applicable sentencing ranges and the overall severity of the guidelines.  Through the first 20+ years of guideline sentencing, the vast majority of proposed amendments have called for increases in applicable sentencing ranges and the overall severity of the guidelines.  This set of amendments thus reflects a quite tangible (and perhaps enduring) change in focus and direction of the Commission's on-going guideline-revision work.

This second point, critically, also prompts an important practical and technical issue (assuming Congress allows these new proposed guideline to become effective): will the US Sentencing Commission later this year vote to make any of its new guideline-reducing amendments retroactive for the benefit of already-sentenced defendants now in federal prison?

April 30, 2010 at 02:59 PM | Permalink

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Comments

I believe only Amendment 5, which deletes the "recency" criminal history provision, could have retroactive application. Certainly, most of the other amendments have the potential to help defendants. But only Amendment 5 has the potential to lower the calculation of an imprisonment Guideline range, as is required by 3582(c)(2).

Posted by: DEJ | Apr 30, 2010 3:59:20 PM

Although I dont support guidelines at ALL, I have to say, this is a step in the right direction. Even though it did take 5 years after Booker to get it right, they did at least get it right.

Lets just hope for some more amendments like this.

Posted by: N/A | Apr 30, 2010 4:04:54 PM

Say, one spends a lot of time studying sentencing. Can anyone understand, let alone get guidance from this document? It is inscrutable lawyer gibberish, and vague. Daubert applies to criminal procedure. These amendments should be challenged as garbage science and basically subjective standards meant to eliminate any functioning guideline.

Posted by: Supremacy Claus | May 1, 2010 6:55:13 AM

Amendments notwithstanding, the guidelines will continue to foster the illusion of consistency, having replaced as they did the moral art of judging unique individuals and complex offenses with a Rube Goldberg justice dispenser.

They'll still mask the micromanagement and subjugation of the courts by a panel of politically unaccountable, mostly arch-conservative bureaucrats.

They're still rigid and severe enough to permit prosecutors to leverage plea agreements from citizens who otherwise might opt for trials.

They'll continue to indulge a national sissy complex that compels leaders to feign toughness by packing prisons with inmates serving excessively long sentences.

Posted by: John K | May 1, 2010 12:21:21 PM

lthough I dont support guidelines at ALL, I have to say, this is a step in the right direction. Even though it did take 5 years after Booker to get it right, they did at least get it right.

Posted by: thomas sabo | Aug 19, 2011 1:40:30 AM

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