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June 5, 2008

The Federal Sentencing Guidelines are dead, long live the federal sentencing guidelines!

I just received these medical notices from the Sentencing Inquirer (a little-known, long-dormant publication from the Kane estate):

OBITUARY:  After an extended illness, the rigid Federal Sentencing Guidelines were taken off life-support on June 4, 2008 by the First Circuit and Fifth Circuit.  Astute diagnosis revealed a Sixth Amendment illness in 2000, and the Guidelines appeared doomed when taking a turn for the worse in summer 2004.  Radical reconstructive surgery in early 2005 by an active-liberty doctor (who had previously help birth the Guidelines), along with extensive nursing by federal circuit courts, enabled the rigid Guidelines to have nearly three more years of life.  But near-fatal blows suffered in late 2007 put the Guidelines on life support, and decisions by courts that had previously been energetic nursemaids prompted this official death notice.

The rigid Guidelines were born in 1987 long after progressive reformers urged their conception, led by the advocacy of sentencing godfather Marvin Frankel.  Though Democratic Senator Ted Kennedy spent a decade trying to give life to a new federal sentencing system, the rigid Guidelines only became possible when various Republican Senators agreed to tough-on-crime insemination in 1984.  A long painful pregnancy within the US Sentencing Commission resulted in the Guidelines emerging in 1987; they arrived much larger and tougher than had been anticipated by many interested observers. 

Soon after the rigid Guidelines were born, federal district judges diagnosed a set of potentially fatal structural constitutional ailments.  A team of eight pragmatic supreme doctors were able to resolve these structural problems in early 1989, and the rigid Guidelines we cleared to play outside with lawyers, probation officers and judges.

The rigid Guidelines had an exciting but difficult childhood, in part because many judicial playmates did not enjoy the elaborate word and math games that the Guidelines always wanted to play.  Fortunately for the rigid Guidelines, probation officers and the Justice Department and Congress and circuit courts were thoughtful and energetic guardians.  These guardians, along with the US Sentencing Commission, made sure district judges played nice with the rigid Guidelines; they also helped the Guidelines grow bigger and stronger and more rigid through the 1990s.

In 1996, the Supreme Court encouraged judges and the rigid Guidelines to play nice together.  But the Justice Department and Congress in 2003 ordered judges to stop playing some of their favorite games with the Guidelines.  This stern order may have aggravated the Sixth Amendment illness diagnosed in 2000 and perhaps indirectly sped the ultimate demise of the rigid Guidelines.

The rigid Guidelines leave behind many friends (and enemies), as well as its stepmother 3553(a).  Encouragingly, doctors have managed to rescue a new sentencing entity that had been growing within the rigid Guidelines since 2005. In lieu of flowers, the stepmother urges lawyers to contribute thoughtful sentencing research and analysis to help this new sentencing entity grow and prosper.

BIRTH ANNOUNCEMENT:  Born from the life force of the dying rigid Federal Sentencing Guidelines, a new flexible federal sentencing guidelines took a major step toward living on its own through a ruling by the First Circuit on June 4, 2008.  Conceived in a controversial severance laboratory as doctors tried to preserve life in her father in 2005, the flexible guidelines were subject to some neglect as circuit court nurses and prosecutors utilized an array of creative techniques to try to keep her father alive.  But in late 2007, a team of doctors finally clarified that nurses should focus their energies on the teachings of 3553(a); these doctors helped ensure that flexible guidelines could be fully loved and nurtured, and the full product of such nuturing started to show itself by mid 2008.

The health and future of the flexible guidelines will depend greatly upon whether she is well-fed by 3553(a) with the help of guardians providing sound sentencing research and effective common-law analysis.  In addition, the political forces which produced and shaped her father's development (and also engendered her many crazy mandatory minimum uncles) may prompt Congress and the Justice Department to seek ways to convince her to act more like her rigid father as she develops.

June 5, 2008 at 02:41 PM | Permalink


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I suppose that makes Justice Breyer like the pet store owner in the Monty Python Dead Parrot sketch.


Posted by: anonymous | Jun 5, 2008 4:06:49 PM


Posted by: Doug B. | Jun 5, 2008 6:17:54 PM

Okay, so what exactly does this mean (in the 1st and 5th Circuits)?

Posted by: | Jun 5, 2008 6:21:02 PM

A person of interest was recently sentenced to 15 years in Federal Court. My question is does a person serving a federal sentence have the opportunity to gain early release thru time off for good behavior, etc?

Posted by: ERIC Long | Oct 16, 2008 2:44:47 PM

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