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June 18, 2009

Lots and lots of notable new proposed priorities from US Sentencing Commission

The US Sentencing Commission has now posted here its "notice of proposed priorities and request for public comment ... for the amendment cycle ending May 1, 2010."  Unlike in prior years in which the USSC seemed to be acting as if Booker never happened, this latest set of proposed priorities is much more modern.  Federal sentencing fans should check out all the proposed priorities, but these proposals seem especially notable and valuable:

Continuation of its work on federal sentencing policy with the congressional, executive, and judicial branches of the government, and other interested parties, in light of United States v. Booker and subsequent Supreme Court decisions, possibly including (A) an evaluation of the impact of those decisions on the federal sentencing guideline system; (B) development of amendments to the federal sentencing guidelines; (C) development of recommendations for legislation regarding federal sentencing policy; (D) a study of, and possible report to Congress on, statutory mandatory minimum penalties, including a review of the operation of the “safety valve” provision at 18 U.S.C. § 3553(e); and (E) a study and report on the appellate standard of review applicable to post-Booker federal sentencing decisions.

A review of departures within the guidelines, including (A) a review of the extent to which pertinent statutory provisions prohibit, discourage, or encourage certain factors as forming the basis for departure from the guideline sentence; and (B) possible revisions to the departure provisions in the Guidelines Manual, including in Chapter Two and in Parts H and K of Chapter Five, in light of that review and any other information coming to the Commission’s attention, as well as potential technical and conforming amendments to the Guidelines Manual to facilitate ease of use....

Continuation of its multi-year study of the statutory and guideline definitions of "crime of violence", "aggravated felony", "violent felony", and "drug trafficking crime", including an examination of relevant circuit conflicts regarding whether any offense is categorically a "crime of violence", "aggravated felony", "violent felony", or "drug trafficking crime" for purposes of triggering an enhanced sentence under certain federal statutes and guidelines.  This study may culminate in guideline amendments and/or a report to Congress recommending statutory changes....

Review of child pornography offenses, and possible promulgation of guideline amendments and/or a report to Congress as a result of such review. It is anticipated that any such report would include (A) a review of the incidence of, and reasons for, departures and variances from the guideline sentence; (B) a compilation of studies on, and analysis of, recidivism by child pornography offenders; and (C) recommendations to Congress on any statutory changes that may be appropriate.

Wow, that is a lot of plans, and I have left out a good number of other priorities.  Though I am very pleased to see all the activity and ambition now coming from the USSC, I hope that the USSC is not risking biting off more than it can effectively chew.  But the USSC gets big-time kudos from me for even starting to make such a huge effort.

June 18, 2009 at 10:41 PM | Permalink


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The first priority should be making it understandable. People are not deterred by what they can't understand. I thought I got it once but read how another sentence was calculated. No way that calculation was a deterrent even if the result could be. Using months instead of years doesn't help either. People understand years much better.

Posted by: George | Jun 19, 2009 3:32:50 AM

George: The argument against Plain English in the law is Precision of English. The arguments favoring Plain English are Procedural Due Process right to notice, and the legality principle.

Any legal utterance written above the sixth grade reading level should be voidable in the law, and void in the criminal law. Make Plain English not just nice, but mandatory.

The math level cannot exceed that of the 4th grade. Above that, you would lose not just the criminals in their understanding, but the lawyers, too.

Posted by: Supremacy Claus | Jun 19, 2009 6:59:25 AM

Their work is only personal opinion, of no importance to the real world of criminal lover judges.

However, they have an opportunity to teach.

Assign a measure of physical harm to each crime addressed. If the crime is theft, every penny of value represents human labor and time taken from a life. At $6million a constructive economic life has been taken, and the death penalty is justified. One may use fractions of this amount to guide sentence lengths.

The above is a screening method. If a crime has very low level of harm, it should be decriminalized (no mala prohibitum in prison sentencing) or get token sentences to register disapproval.

Once a crime is deemed harmful, then look at the person, and forget the crime. There are no specialists. So the shop lifter is a rapist. The burglar is a serial killer. The sentence should protect the public from the person. This is not the future forecast which is a supernatural power. This is a look at the past, a synonym for character. If the defendant cannot learn, has no empathy, is cruel, and is fearless, he should never be allowed out, even if there on a shoplifting beef. A murderer who is a normal person, and not a threat to the public may go home after a brief period of observation in prison to verify normalcy.

That is their job, protect the public. It is not to generate lawyer jobs with impenetrable formulas, unproven pro-criminal bias from Booker, nor to increase crime victimization. They have a duty to block the Supreme Court criminal lover decision, which have no legal, policy, nor moral validity. If they had legal validity, they would have been discovered 100 years ago. They were pulled from the bias end of the Justices' rent seeking organ.

Posted by: Supremacy Claus | Jun 19, 2009 11:06:47 PM

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