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August 13, 2004

The ABA Report's Lucky Timing

Post from Ron:
I promised earlier that I would comment on the substance of the ABA Justice Kennedy Commission report (background here). It seems to me that this report proves the power of good timing. The fact that it arrived now, rather than six months ago, or one year from now, gives the report a power it might otherwise have lacked.

The report paints with broad brush strokes. During the year-long study and drafting process, I thought that a more focused approach would be more effective, because I believed that the chances of any fundamental rethinking of federal sentencing were slim. At the time, I concluded that the best chance of getting any changes at all would be to focus tightly on specific injustices (such as crack cocaine sentences) built into the current structure.

All of those calculations failed to calculate for Blakely. The Supreme Court has now made it highly likely that Congress will reconsider some of the fundamentals of federal sentencing law, and in such an environment a broader set of pronouncements can have a real effect. On the whole, I am now more positive about the impact ABA Report on public debate.

That's not to say that the report sets out my ideal set of working principles for a sentencing system, and the report pretty clearly does not embody any broad-based consensus about how to design a system. Such a consensus might not exist. But there is a lot of positive here, and I do favor the general emphasis of the report on allowing for individual differences in sentences and maintaining a transparent and accountable role for the sentencing judge. The repeal of the 25% rule, restoration of a looser appellate review standard, and more delegation to the Sentencing Commission would all be happy outcomes, in my opinion.

The report's condemnation of mandatory minimum sentences is currently getting the most attention, and I will post separately about that.

August 13, 2004 at 09:56 AM | Permalink


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