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August 28, 2009

What should be the US Sentencing Commission's priorities these days?

Remarkably, we are rapidly approaching the five-year anniversary of the Supreme Court's decision to make the federal sentencing guidelines advisory in Booker. Much can be said about what Booker has changed, but what Booker clearly has not changed in the central importance of the work of the US Sentencing Commission to the operation and outcomes of the federal sentencing system.

As detailed in this official notice, this coming Monday afternoon the USSC has a public meeting scheduled at which it will be formally setting its priorities for the 2009-2010 amendment cycle. As noted in this post from June, the USSC set out here a very ambitious set of proposed priorities for this amendment cycle.  Though I am very pleased that the USSC has in mind a robust agenda, I wonder and worry if it risks bitting off more than it can effectively chew, especially since it is still awaiting the Senate confirmation of the new chair and new commissioner nominated by President Obama.

With this background, dear readers, I pose for a Friday afternoon discussion in the comments the basic question that titles this post: What should be the US Sentencing Commission's priorities these days?

August 28, 2009 at 12:55 AM | Permalink


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This may be an outlying point of view, but I would say that the agenda is not robust enough. While Justice Breyer's efforts to save the Guidelines on which he had worked so hard is commendable and understandable, Booker and its progeny have produced even more traps for the unwary than the than in the mandatory-Guideline days. Since the Guidelines are only meant to be a starting point for analysis, then there is no need for them to produce as precise and narrowly scripted result as they do now. Rather, they should be massively simplified to produce only a rough approximation of a defendant’s culpability--the “starting point” from which judges can then produce an individualized result using the 3553(a) factors. I envision a Sentencing Table with only 20 offense levels and four criminal history categories, and correspondingly larger guideline ranges. The majority of one- and two-level enhancements would be eliminated, leaving only basic offense level calculations aimed at producing a rough culpability level.

Moreover, I would argue for the wholesale elimination of Chapter 5 (departures). Having two separate regimes and sets of procedural requirements depending on whether something is a "departure" or "variance" is needlessly complicated, as Irizzary demonstrated. There is no need to set forth specific reasons and procedures to “depart” from Guidelines that are only advisory. Even 5K1.1, once one of the most useful tools in the prosecutor's toolbox, has been considerably dulled by the fact that judges can consider a defendant's cooperation and grant a Booker "variance," even if the prosecution does not move for a 5K1.1 "departure." The government's assessment of a defendant's cooperation will still carry significant weight with judges, even absent the formal 5K1.1 procedure, and the government's ability to make a 3553(f) motion will preserve its leverage in cases involving mandatory minimum sentences.


Posted by: rstacy | Aug 28, 2009 4:12:41 PM

One of the owners of the law here.

The sole priority of any value to this appalling group is public safety. All are dependent for their living on the criminal. They will make sure nothing bad happens to the criminal to in any way discourage or inconvenience the lawyer client.

There is no advocate for physical punishment, quick, cheap, memorable as a deterrent. Instead, further complicated formulas will get proposed. These require specialized lawyers to interpret. They give no notice to the criminal, whose reading level is between the 6th and 8th grades. The criminal has such protection and immunity from the lawyer, that only a mentally disabled criminal will get caught, or one so busy that he accidentally runs into the police.

Posted by: Supremacy Claus | Aug 29, 2009 12:01:51 AM

A wholesale reevaluation by the USSC of our approach to the punishment of federal offenders is in order. I suspect that the USSC is beginning to recognize this in light of the testimony it is receiving at its regional hearings.

The assumptions about the effectivness of incarceration in reducing risk and protecting the public have been shown, over the past 25 years (at least) to be incorrect. Approximately 55% of federal offenders have some type of substance abuse or dependency problem. That is, often, a health issue and not a "crime" issue, so it needs to be treated (literally) that way. Moreover, approximately 27% of federal offenders are non-US citizens and, in most cases, should not be doing time in U.S. prisons. They should be transferred to their home countries and do their time there.

A large number of offenders (drug offenders and white collar offenders)have problems related to "criminal thinking" patterns that must be addressed within the BOP and by U.S. probation through evidence-based cognitive interventions that are responsive to risk and need. In this connection, hopefully, the USSC will take an evidence-based approach to sentencing, as is already occurring with the approach to federal offender supervision by U.S. probation. Hopefully, they will endorse the use of a dynamic risk-prediction instrument that will be the same instrument used by both the BOP and U.S. probation. Hopefully, they will insist that the BOP provide evidence-based interventions that are the same or similar to the ones being provided by U.S. probation to offenders on supervised release so that there can be continuity of treatment, consequences, and rewards throughout the system.
The stovepiping,over-specialization, and incoherence that exists between and among sentencing, incarceration, and supervision must come to an end.

Perhaps, also, the USSC will take a serious look a alternatives to incarceration and restorative justice so that victims, offenders, and communities can be made whole. As Jeremy Travis has said: "They all come back" to our communities, so why doesn't the USSC pursue priorities that will reduce the harm caused by offenders who are returning but who lack the knowledge, skills, and abilities to lead productive, meaningful lives?

Posted by: Mark | Aug 30, 2009 1:27:47 PM

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Posted by: Robot Smith | Sep 15, 2009 8:40:03 AM

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