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January 31, 2012

NPR covers latest debates over post-Booker federal sentencing systems

This new piece featured as part of NPR's show Morning Edition, and given the headlined "GOP Seeks Big Changes In Federal Prison Sentences," effectively reviews some of the recent debates in Congress and elsewhere over the current state of federal sentencing.   Drawn from last year's House hearing and a recent ACS panel (in which I had the honor participating), the piece notes that a few folks are vocally complaining about how advisory guidelines are functioning.  Here is how the piece begins:

Every year, federal judges sentence more than 80,000 criminals. Those punishments are supposed to be fair — and predictable.  But seven years ago, the U.S. Supreme Court threw a wrench into the system by ruling that the guidelines that judges use to figure out a prison sentence are only suggestions.

Republicans in Congress say that's led to a lot of bad results. They're calling for an overhaul of the sentencing system, with tough new mandatory prison terms to bring some order back into the process.  Rep. James Sensenbrenner, a Republican from Wisconsin, brought up the subject at a recent hearing.

"A criminal committing a federal crime should receive similar punishment regardless of whether the crime was committed in Richmond, Va., or Richmond, Calif., and that's why I am deeply concerned about what's happening to federal sentencing," Sensenbrenner said.

As astute readers know, the "wrench" thrown into the federal guideline system by the Supreme Court in Booker just happened to be the protections of the Fifth and Sixth Amendments of the Bill of Rights; we could return to the "old" system of mandatory guidelines if and whenever Congress and prosecutors agreed that factors within the guidelines would have to be proven up consistent with the constitutional requirements.  

Sensenbrenner failed to push forward on such a legislative response in Booker (which has been urged by members of the Supreme Court as diverse as Justices Scalia, Souter, Stevens, and Thomas) throughout 2005 and 2006 when the GOP controlled both houses of Congress and the executive branch.  That reality leads me to view much of the recent criticisms as mostly "big bad wolf" huffing and puffing with just false threats to blow down the post-Booker system.

For a more fulsome review of these issues and the broader debate, the extended ACS discussion from which some of this NPR piece is drawn is available at this link.

Some recent related posts about the House hearing and other post-Booker debates:

January 31, 2012 at 08:44 AM | Permalink

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Comments

Yes, that crazy monkey-wrench Constitution! They also failed to mention (I would have) that Justice Breyer helped create the sentencing guidelines. But they did call you, so I give them a few points for that.

Posted by: Anne | Jan 31, 2012 8:49:01 AM

When Booker came down it wasn't yet apparent whether there was actually going to be a problem. Expecting Congress to act under such circumstances is not particularly realistic. Enough time has now passed for it to become clear that there really is a problem in sentencing disparity and so we will start to see a push to fix some of it. I won't be surprised however if it takes another 20 years for it to become so unbalanced that major reform is passed.

Posted by: Soronel Haetir | Jan 31, 2012 9:26:00 AM

but not my huffing and puffing :)

"fair---and predictible" that is setting an impossible task if we are sentencing individuals, not processing defendants. the mandatory guideliens were pretty good at processing, less so at sentencing.

Posted by: big bad wolf | Jan 31, 2012 10:51:04 AM

The question is not whether there is discretion in sentencing but who exercises it. I trust federal judges over AUSA"s.

Posted by: Steve Prof | Jan 31, 2012 2:48:30 PM

Steve,

I believe the ample evidence that led to the SRA in the first place pretty much destroys any basis for trusting judges with the task.

Posted by: Soronel Haetir | Jan 31, 2012 3:21:48 PM

How about a drastic downsizing of the Federal Criminal Code? Fewer criminals; fewer discrepencies!

Posted by: Ala JD | Jan 31, 2012 3:30:21 PM

If the Supreme Court wanted Congress to address the constitutional problems with a legislative solution, they should have struck down the guidelines and left it at that. It was their own overreaching "remedial" opinion in Booker that preempted Congress and created an inertial situation where it was entirely predictable that Congress would do nothing. In that sense, Anne's comment about J. Breyer helping to create the sentencing guidelines is doubly right! He helped create both the original Congressional legislation, and the subsequent judicial legislation.

Posted by: Anon | Jan 31, 2012 3:41:24 PM

i agree with anon. Last time i looked in cases like this about the legality of a law. You had TWO choices...it's legal therefor that's it!

or

it's ILLEGAL in which case it was GONE! you'r not supposed to sub your thoughs for those who wrote it. They either take their damn time and engage their brains and write and pass a LEGAL law or they can wave good-bye to it when the courts get ahold of it!

What the courts do need to do is start holding politicians ACCOUNTABLE for the crap they now call the laws they pass.

IF they SHOULD have KNOWN it was illegal when they passed it....sorry they comitted the CRIME OF TREASON and VIOLATION of THEIR OATH OF OFFICE when they allowed it to pass.

HAMMER THEM!

Posted by: rodsmith | Jan 31, 2012 4:04:53 PM

Soronel,
But why trust AUSA's over federal judges? If you right then I suppose Congress ought to eliminlate all loweer court Article III judges because they can't be trusted in civil cases either. The post SRA pre-Booker regime had as much or more discretion in it as the current one - but the prosecutors had all the power in charging decisions and how the USSG were applied. For example' many AUSA's would waive 851 enhancements in many districts if the defendant plead while a few districts would not. Is that fair that a defendant in one district gets their MM doubled or even a life sentence while a identically situated defendant in another district gets a much shorter sentence.

Posted by: Steve Prof | Jan 31, 2012 6:01:29 PM

Ala JD --

"How about a drastic downsizing of the Federal Criminal Code? Fewer criminals; fewer discrepencies!"

Why haven't we thought of that before? Indeed, I'll go you one better. How about ENTIRELY ELIMINATING the Criminal Code? Then we'd have no criminals at all!!!

Here it was -- the easy, cost-free answer staring us in the face all along.

Posted by: Bill Otis | Feb 1, 2012 12:51:29 PM

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