Monday To-Do List: Revise Federal Sentencing Laws

Post from Ron:
Ah, Monday morning. Time to survey the wreckage on the desktop from last week, clear a little new space, draft a fresh To Do List: "(1) answer email, (2) revise draft article, (3) rewrite federal sentencing system in light of Blakely."

I've got good news for you on this last task. Larry Kupers, a former assistant federal public defender in the Northern District of California, formerly the Federal Public Defenders’ visiting counsel to the United States Sentencing Commission, currently completing a temporary duty assignment with the Office of Defender Services of the Administrative Office of the United States Courts, has drafted a short article proposing a long-term vision for a restructured system. Larry is willing to share his current draft through this blog, so you can find the link below.

The ideas in this draft are subtle and interesting. This is not a stop-gap repair, but a new system that would take significant legislative effort. It goes beyond the idea that the guidelines should remain advisory within the broader statutory ranges.

Instead, the system that Kupers envisions involves several interlocking elements that do not resemble current law very closely at all:

(1) The Sentencing Commission (not the Congress) should select a "base guideline range" within the statutory minimum and maximum, a fairly wide "base range" that will determine the outcome for a majority of cases based only on the charge of conviction.
(2) The judge can depart down from this range, based on reasons that can be reviewed for reasonableness on appeal.
(3) The judge can depart up based on a limited number of statutory "enhancements" (Kupers suggests 10), to be alleged in the indictment and proven at trial, much in the manner of current firearms enhancements.
(4) The Sentencing Commission should issue truly voluntary guidance to the courts on how to select sentences within the broad base guideline range, and how much to depart.

What can we anticipate would happen to various pieces of this proposal as it works through the legislative mill?

Download Kupers.pdf