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February 20, 2012

Brief reflections on federal sentencing policy, practice and politics after USSC hearings

I have many intricate "micro" observations about last week's two US Sentencing Commission hearings, but I fear I will not soon be able to find time to write up (m)any of them for this space.  But I think I can quickly here articulate and briefly explain my "macro" take away from both hearings: federal sentencing laws and their prospects for reform still suffer greatly from (and may always suffer from?) harmful disconnects between sound sentencing policies and practices and sound-bite sentencing politics.  Let me (too briefly) explain what I mean:

1.  There was a rough consensus from the written testimony submitted on the first hearing day concerning penalties for child pornography offenses (still available via links in this official agenda) that, as a matter of policy and practice, federal sentencing law in this area is functioning quite poorly.  (This is hardly surprising: the potential dysfunction of the existing CP guidelines has been stressed by courts and commentators for many years now.)  But I suspect and fear it will prove very challenging for the US Sentencing Commission or the Justice Department to engineer any quick and/or sound fix because the sound-bite politics of this issue make it almost impossible to propose lower sentences for anyone who downloads kiddie porn, even the most mitigated of offenders who already faces many years in prison under existing law.  (This is the same sad political reality that prevented any real change to the 100-1 crack/powder ratio for more than a decade after essentially everyone agreed that ratio was terribly misguided and racially unjust.)

2.  There was a rough consensus, at least coming from all the judges, prosecutors, defense attorneys and public policy groups (whose written testimony is still linked via this official agenda here), that the broader post-Booker sentencing structure is, as a matter of policy and practice, functioning reasonably well all things considerd.   But I suspect and fear the US Sentencing Commission and the Justice Department will feel very pressured to urge fixes to the post-Booker system because powerful Republican voices in Congress seem to relish the sound-bite politics of complaining about the possible unwarranted and/or racial disparities in federal sentencing.  (But, tellingly, these same Republican voices were often disturbingly silent for years concerning proposed crack sentence reductions that the USSC long said were clearly needed to reduce unwarranted and racial sentencing disparities.)

3.  Rigorous quantitative analysis of the post-Booker sentencing system done by both the US Sentencing Commission and outside researchers are already playing a large role in the policy and political debates.  But I fear that even the best quantitative research (like the Commission's own data runs) too often fails to break down categories of cases/regions for analysis in order to assess the impact of sets of outliers.  For example, the case-processing data differences in the CP cases and the larceny cases are profound in all sorts of ways, as are the difference in even the three judicial districts of North Carolina, but so much of the research and reporting necessarily has to lump many of these "local" stories together.  For this reason (and many others), I think the USSC and outside researchers ought to be devoting a lot more time to sophisticated qualitative research with a focus on particularly important "local" stories.

I could go on (and may in future posts), but for now I hope lots of thoughtful folks — whether following the USSC hearing closely or not — will share comments on my numbered observations above OR more generally about what they see in the future for federal sentencing reform debates.

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February 20, 2012 at 01:36 PM | Permalink

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Comments

Regarding Door #3, I want to recommend to readers the Defenders' qualitative and quantitative analysis of racial fairness in sentencing after Booker, which includes favorable statistics the Commission does not talk about, problems with its study that it does not talk about, and some stories about real human beings. See pp. 14-30 of this Tetimony by Federal Public Defender Ray Moore. http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20120215-16/Testimony_16_Moore.pdf.

Posted by: ABE | Feb 20, 2012 7:30:19 PM

Neither victims nor defendants were represented. So the self-evident is missing from the discussions above. Sentencing is a money making operation, and any decrease will result in losing money and jobs. No internal force will suffice to get more rational shorter sentences. Only massive external forces or a catastrophe will result in any change.

Posted by: Supremacy Claus | Feb 20, 2012 10:02:29 PM

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