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February 28, 2007

A ugly amendment reality showcased in the USSC annual report

As noted here yesterday, the  US Sentencing Commission has recently released its 2006 Annual Report and the 2006 Statistical Sourcebook.  There are lots on lots of interesting Booker-related stories to be found within these materials, my first review led me to notice an ugly and telling reality about the FY 2006 guideline amendments discussed by the USSC in Chapter 2 of its Annual Report. 

As shown though bullet points on pp. 7, 11-13 of the Annual Report, the USSC promulgated 17 sets of guideline amendments in FY 2006.  And, based on a quick review, it appears that perhaps as many as 16 of those 17 amendment sets may functionally operate to increase federal sentences.  Perhaps the USSC should be renamed the United States Sentencing-Increase Commission.

February 28, 2007 at 06:11 PM | Permalink


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The trend is most apparent when you compare the original 1994 guidelines with the current ones. Most crimes have a higher level than they did originally. In addition, the list of potential aggravating factors is much longer than it was in 1994. By contrast, only a very small number of mitigators have been added.

Posted by: William Jockusch | Mar 1, 2007 12:12:36 AM

At least get the facts straight. The original guidelines were not in 1994, but rather in 1987. In addition, the effects of any changes in the guidelines would not show immediate effect on sentences because of ex post facto issues. You would think a law professor would know this.

Posted by: Kelly Nance | Mar 1, 2007 7:20:20 AM

Kelly: What this law professor knows is that (1) after Booker ex post issues are in flux (see, e.g., Demaree from the 7th Circuit), and (2) my post had nothing to do with the immediate applicability of these sentence-enhancing amendments.

My point is simply that the expert US Sentencing Commission, which is supposed to provide a balanced and sober assessment of federal sentencing realities, seems to have an unfortuate one-way ratchet approach to sentencing reform.

Posted by: Doug B. | Mar 1, 2007 7:44:58 AM

You don't attribute any of that to directives from Congress? Most of what the Commission has done has been because of directives from Congress. Placing the blame at the feet of the Commission is not telling the full story, but it seems that's not the purpose of this blog.

Posted by: Kelly Nance | Mar 1, 2007 7:55:31 AM

I have made this observation before and want to reiterate it here. Both Congress and the USSC use each other for cover. Each side thinks that the other side is giving it a directive, reads that directive as get tougher on crime, and says, don't blame us, the other guys told us to do it. They both read tougher from what they perceive as the American crime policy culture. Every Congress person knows that nobody ever lost an election from being too tough on crime. D.B.'s point is that the USSC also responds to the same message. Commissions generally do.

Posted by: Mike Israel | Mar 1, 2007 1:43:15 PM

Sorry Mr Israel, but you obviously have never read one of the Congressional Directives. They are just that, DIRECTIVES, which TELL the Commission that they must raise penalties for certain crimes. Unless the Commission is willing to break the law, they are painted in a corner.

Posted by: Kelly Nance | Mar 2, 2007 7:09:54 AM

Kelly: Why couldn't and shouldn't the USSC respond to a directive by raising penalties for some crimes but than adding a mitigator for some other crimes? Why the eagerness to make excuses for a Commission that has virtually encouraged an increases in sentences, even after Booker.

Posted by: Doug B. | Mar 3, 2007 11:01:38 AM

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