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May 7, 2010

Have the new (proposed) amended federal guidelines had any ripple effect yet?

During the terrific sentencing panel yesterday at the Sixth Circuit judicial conference festivities (basics here), I suggested that the new federal guideline amendments released last Friday by the US Sentencing Commission (basics here) could be like a pebble in a pond with important and highly consequential ripple effects on federal sentencing law and policy.  I stressed my view that the size and significance of this ripple effect would depend greatly on just how practitioners and district judges interpret and give effect to the changes (and especially the vague and open-ended language in changes to the offender circumstances policy statements).

Of course, as discussed in this prior post, Formally, the proposed amended guidelines do not become legally effective until November 1, 2010, and thus I probably should not be looking for any big ripples from the new guidelines until this fall.  But, as explained before, because  the Commission has now formally and functionally indicated its view the provisions of 3553(a) are better served by sentencing in accord with its amended guidelines, a district court could right now probably feel free, and maybe even should feel an obligation, to sentence in accord with this new proposed guidelines ASAP.  Thus, I am using this post to ask for early reports from those in the field about whether any practitioners and/or district judges are seeing or feeling the new (proposed) amended federal guidelines having any ripple effect yet

May 7, 2010 at 12:23 PM | Permalink

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Comments

Doug,

In the recently passed health care reform legisaltion, Congress directed the Sentencing Commission to increase guideline penalties for health care fraud offenses. Do you think that because Congress "has now formally and functionally indicated its view the provisions of 3553(a) are better served by sentencing in accord with amended guidelines, a district court could right now probably feel free, and maybe even should feel an obligation, to sentence in accord with" the higher penalties called for by the legislation; and to do so ASAP?

Posted by: ??? | May 7, 2010 2:12:34 PM

Couple of responses to your good question, ???.

1. The Ex Post Facto clause provides a constitutional restriction on giving effect to sentence-enhancing legislation/law that post-dates the commission of the offense. Consequently, there may be a constitutional problem with giving ASAP effect to law that increases sentences, and thus I am not sure district judges can/should "feel free" in this distinct setting.

2. I do think that the new legislation serves as an important statement by Congress that it fears that the existing guidelines may be too low to serve 3553(a) goals, and thus I am sure that district judges can/should "feel and obligation" to incorporate into their application of 3553(a) these new developments.

3. In my view, all new legal changes/developments can/should get operationalized through the a sentencing judge's 3553(a) sentencing responsibilities, aided by the work of counsel in giving the judge the latest information about the offense and offender and societal needs for punishment in light of specific case facts. In other words, I think sentencing judges always should be attentive to new relevant sentencing information coming from whatever reliable source to craft, consistent with constitutional norms, a sentence that is "sufficient but not greater than necessary" to achieve statutory sentencing goals. In lots of cases in which the law is rapidly evolving, this can be quite challenging, but responsible sentencing always is.

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