« Notable new pot legalization poll numbers from two states | Main | Another SCOTUS summary reversal again stresses AEDPA deference »

December 12, 2011

"No Change in Sight for Sentencing Guidelines"

The title of this post is the headline of this recent piece by Professor (and former federal prosecutor) Wes Porter appearing in the legal newspaper The Recorder.  Here are excerpts:

The past decade has brought dramatic and progressive change to criminal sentencing in federal court. The continued utility of the United States Sentencing Commission and its sentencing guidelines miraculously survived this change.  The Supreme Court, in its 2005 decision in U.S. v. Booker, rescued the guidelines from obscurity in order to continue to promote the sentencing policy goals of uniformity and proportionality.  However, the next important change needed is the least likely to occur — the Sentencing Commission itself must steward the "evolution" of its guidelines.

District judges routinely reject certain provisions of the guidelines as unhelpful.  The Sentencing Commission must reinvent itself by reshaping its guidelines post-Booker.  To start, the commission should remove the provisions in the guidelines that courts regularly exercise their discretion to disregard.  And examples of routinely disregarded guideline provisions are not hard to find.

For example, the guidelines still require district judges to calculate and consult artificially enhanced punishments based upon often uncharged — and sometimes acquitted — conduct called "relevant conduct."  The guidelines still require courts to consult its recidivism (re-)classifications such as the "career offender" provision.  Here, the judge has all the details of the defendant's criminal history and resulting (already severe) sentencing range, yet the guidelines require the court to consider a more severe sentence because of its recidivism label.  The guidelines still require parties to litigate, and judges to find, whether conduct qualifies for other guideline-created labels, such as whether it is "serious," "violent" or "sophisticated."...

[Since] Booker, district judges generally have embraced the sentencing policy goals, consulted the guidelines and imposed "reasonable" sentences.  Congress fortunately has not attempted to legislate a fix to a sentencing process that is not yet broken.  The federal sentencing process has played out as intended by the Supreme Court and as well as could have been expected for the Sentencing Commission.  Yet, with respect to these unhelpful guideline provisions, district judges are required to make findings about them and consult the resulting calculation, but they then may exercise their discretion to ignore the provisions when imposing a sentence....

Many provisions in the guidelines do not provide any helpful information to the court at sentencing.  Only the resulting calculation is helpful to the court as an "anchoring" reference for its sentence....

There are many explanations for the lower sentences since Booker.  Many believe that the guidelines were skewed too high. Others argue that district judges, particularly guideline-era judges, have gained greater comfort with sentencing discretion and accounting for individual circumstances. The explanation, however, also may reflect the district judges' exercise of their discretion to disregard unhelpful provisions in the guidelines.  The sentencing commission should review these trends and remove generally disregarded provisions of the guidelines to promote continued uniformity and proportionality....

Many provisions in the guidelines involve wholly unhelpful manipulations and recategorizations of information already available to the court.  In fact, certain problematic provisions skew the "anchoring" guideline calculation and mislead the district court's sentencing decision. The Sentencing Commission should endeavor to weed these provisions out of the guidelines....

The Sentencing Commission should appreciate that only a meaningful guideline calculation assists the court when exercising its discretion, and that only a meaningful anchoring reference continues to promote uniform and proportional sentences in federal court.  The anchoring guideline calculation could have sustained meaning in the post-Booker sentencing process if the Sentencing Commission evaluated trends and trimmed the guidelines back.  Without a dramatic change, the post-Booker sentencing process will become increasingly inefficient and largely a waste of time and resources.

December 12, 2011 at 10:11 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e20162fdb62c35970d

Listed below are links to weblogs that reference "No Change in Sight for Sentencing Guidelines":

Comments

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB