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November 7, 2011

"Guidelines Gone Awry"

The title of this post is the headline of this notable new commentary by Alan Vinegrad and Jason Levine. It appears in today's New York Law Journal and gets started this way:

On Oct. 12, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security held its first hearing on federal sentencing since March 2006.  The title — "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years After U.S. v. Booker" — apparently reflects the subcommittee majority's views on post-Booker1 sentencing.  Representative James Sensenbrenner, chairman of the subcommittee, stated that he is "deeply concerned" with federal sentencing due to the "increasing frequency of downward departures."  Those who commit child pornography or fraud offenses "are in luck," he added, explaining that these crimes have seen particularly high rates of below-guideline sentences.

Proposals to address these concerns have run the gamut.  One witness recommended that the Sentencing Reform Act be repealed and the Sentencing Commission abolished.  Another proposed that sentencing guidelines once again be presumptively applicable, circumventing Booker by relying on juries to make findings on aggravating factors.   And Judge Patti Saris, chair of the Sentencing Commission and Massachusetts district judge, testified about the problems sentencing courts have encountered in the post-Booker sentencing regime and recommended a more robust system of appellate review.

The commission's proposals, although understandable, did not address the real culprit — the guidelines themselves.  In several areas, the guidelines, primarily as a result of congressional directives, no longer fairly reflect the varied purposes for which they were created.

Some recent related posts about the House Booker hearing: 

November 7, 2011 at 10:15 AM | Permalink

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Comments

I'd like Sensenbrenner to say he is lucky whenever he gets charged with fraud or child pornography. That comment alone shows how divorced policymakers are from the reality of the criminal "justice" system.

Posted by: F. Valcarcel | Nov 7, 2011 10:21:49 AM

how true!

what this statement tells me!

"Representative James Sensenbrenner, chairman of the subcommittee, stated that he is "deeply concerned" with federal sentencing due to the "increasing frequency of downward departures."

is that maybe the majority of the judges think like the rest of us senator! you boys were talking out of your rears when you set the guidelines!

Posted by: rodsmith | Nov 7, 2011 10:58:44 AM

"The commission's proposals, although understandable, did not address the real culprit — the guidelines themselves. In several areas, the guidelines, primarily as a result of congressional directives, no longer fairly reflect the varied purposes for which they were created."

It would seem the authors have forgotten that the principal purpose by far for which the guidelines were created was to replace freewheeling discretion with the much more cabined discretion of mandatory standards. The legislative history, outlined by Justice Stevens, makes this clear beyond rational argument.

Posted by: Bill Otis | Nov 7, 2011 12:22:35 PM

'Those who commit child pornography'... huh, what's that???

Posted by: . | Nov 7, 2011 4:04:14 PM

Bill:

Not to offend you because I value your comments and intend no insult or slight, if I were to argue that a certain Sentencing Guideline Mandatory Minimum applied in a certain case was a Crock of S--t, that would mean that you are calling me irrational.

I object, but I will not hide.

Posted by: albeed | Nov 11, 2011 6:45:42 PM

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