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July 20, 2006

Federal defender submission to USSC

A great friend of the blog has sent me a copy of a long submission to the Sentencing Commission from the Federal Public and Community Defenders.  The submission, which I cannot seem to uploaded because of crancky on-the-road technology, proposes priorities for the USSC's next amendment cycle.  It presents policy and constitutional critiques, and proposes solutions, on topics such as: (1) unfairness and inaccuracy in factfinding, (2) criminal history, including the career offender guideline, non-violent first offenders, and factors included and excluded from criminal history rules, (3) the use of uncharged, dismissed and acquitted separate offenses, (4) sentences in drug cases, (5) the need for an updated report on mandatory minimums, (6) the need to expand non-prison alternatives, and (7) the illegal re-entry guideline and fast track departures.

The submission includes an Appendix of recent cases sentenced under the guidelines' relevant conduct rules with little or no procedural safeguards.  The cover letter, which summarizes the problems and solutions in the seven areas, concludes with these two paragraphs:

It is time for the Commission to move forward and fix what is broken.  Justice Breyer previously called upon the Commission to act forcefully to reduce the false precision, unfairness, and inefficiency increasingly reflected in the guidelines over time, and to move in the direction of greater judicial discretion, fairness and equity.  While the Commission has amended the guidelines nearly 700 times, only a handful of these amendments sought to reduce sentences.  This cannot be explained away by placing the blame on Congress.

In United States v. Booker, 543 U.S. 220 (2005)

, Justice Breyer invited the Commission to "modify its Guidelines in light of what it learns, thereby encouraging what it finds to be better sentencing practices."  Id. at 263 (emphasis supplied).  The Commission's response to Booker thus far has been to promote a fiction that the guidelines "embody" the purposes and factors set forth in 18 U.S.C. 3553(a) and to denigrate the exercise of judicial discretion as "non-conforming."  This course is not productive. It stands in the way of reform, promotes disrespect for law, and may very well result in another Supreme Court ruling of unconstitutionality.  We urge the Commission to take advantage of Booker to learn, to modify the guidelines accordingly, and to teach Congress what it learns.

I hope to provide a copy of or link to the defenders' submission as soon as technology allows me to do so.

UPDATE: The Fourth Circuit Blog discusses the defender submission here, and provides this link to enable downloading the full document. 

July 20, 2006 at 07:29 AM | Permalink


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