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April 19, 2010

New USSC amendments expanding prison alternatives and addressing certain offender characteristics

As detailed in this just posted official press release, the United States Sentencing Commission has "voted to promulgate sentencing guideline amendments that expand the availability of alternatives to incarceration and address the relevance of certain specific offender characteristics in sentencing."  Here's more of the details from the press release:

The Commission also voted to promulgate guideline amendments on additional topics including hate crimes, the calculation of a defendant’s criminal history, and sentencing corporate offenders.

The amendment on sentencing alternatives has several key components.  First it informs courts that departures from the guidelines may be warranted in situations where an offender’s criminal activity is related to a treatment issue such as drug or alcohol abuse or significant mental illness and sentencing options such as home or community confinement or intermittent confinement would serve a specific treatment purpose.  The Commission also recommends in a new application note that courts take into consideration the effectiveness of residential treatment programs as part of their decision to impose community confinement. Second, the Commission voted to increase the availability of alternative sentencing options by expanding by one offense level Zones B and C in the guidelines’ sentencing table.  According to the guidelines, offenders in Zones B and C are eligible, in the court’s discretion and subject to statutory limitations, for alternatives to straight imprisonment such as split sentences, home or community confinement....

The Commission also voted to amend guideline policy statements regarding age, mental and emotional conditions, physical condition, and military service recognizing that these factors may be relevant to the sentencing process courts undertake.  Previously, these factors were deemed as “not ordinarily relevant” in determining whether a sentence outside the guidelines was warranted. The amended policy statement provides that these factors may be relevant if they are relevant to an unusual degree and distinguish the case from the typical case.  This amendment reflects the Commission’s extensive review of offender characteristics that included reviewing case law and relevant literature, receiving public comment and hearing testimony, and conducting extensive data analyses....

Any amendments made by the Commission to the guidelines must be submitted to Congress on or before May 1 of each year and become effective on November 1 if not disapproved by Congress.

Kudos to the USSC for moving on these important federal sentencing fronts.  Though I want to see the exact language of the amendments to figure out if mondo-kudos are meritted, the Commission is to be complimented for (finally!) taking a more dynamic approach to some key issues that called for additional attention in the wake of Booker.

April 19, 2010 at 11:31 AM | Permalink


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I agree that this is a very positive sign. The commission may have finally emerged from its view of itself as an enforcer of uniformity at all costs that it did under the mandatory guidelines. I hope they will now take a look at some of the most criticized specific offense charateristics guidelines. (for me child porn, and the enhancements for prior crimes of violence and drug crimes in 2k2.1 and 2L1.2 the gun and illegal reentry guidelines).

Posted by: KRG def attny | Apr 19, 2010 11:57:33 AM

Well, after 20 years, maybe somebody finally gave the Sentencing Commission a copy of "171 Easy Mitigating Factors."

Posted by: Michael R. Levine | Apr 19, 2010 12:27:05 PM

Not sure I understand what changes the Commission is making regarding military service and other personal characteristics. I know that the Guidelines labeled these characteristics are "not ordinarily relevant," but as the Supreme Court explained in Koon a sentencing court may rely on a such a factor “only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present."
How is this different from the Commission's new language that "these factors may be relevant if they are relevant to an unusual degree and distinguish the case from the typical case"?

Posted by: CBHessick | Apr 19, 2010 1:14:54 PM

My vote would be to dump the 1000ft enhancement. It doesn't make children any safer. Must be on premises or have true violence or a gun offense occur to get the enhancement..

Restore goodtime days HR1475. Save a 1 $billion 678 million each year. $71/day * 120 days * 197K inmates with a release date. Hard to argue that one.

Ratio of psuedo/ephedrine to Meth is 5 to 1. That is ridiculous. Psuedo converts to 10 kg of marihuana and meth converts to 2 kg. Crystal is 20 k. Meth is to whites as crack is to blacks. Need an immediate retroactive 2 level drop for Meth offenders..

Acquitted Conduct, favorite case is Duck hunter gets 30 yrs, with his Remington 870.

3 strikes and your out, Drug offenders get a life sentence...Nobody should get life for drugs, unless your driving a Winnebago chucked full...

In general the Federal system WAREHOUSES offenders about 2-3 times longer than similar state crimes. You can't adjust that with a pipe wrench.. Does depend upon part of the country for sure.

Federal system is in need of a total overhaul. States are shrinking the inmate population, while the Federal system, just keeps right on growing oblivious..Its unkchecked with no controls....

Posted by: Goodyr | Apr 19, 2010 3:05:04 PM

This is great news. Finally after 30 year's the USSC actually stopped increasing the sentence, and finally made less?

Posted by: N/A | Apr 19, 2010 5:33:59 PM

Can someone tell me what is "171 Easy Mitigating Factors" to which Mr. Levine refers?

Posted by: joey | Apr 19, 2010 9:16:51 PM

Tell me if misunderstand. A military trained former sniper with 90 confirmed kills in Afghanistan, paranoid schizophrenic, who often hits the bottle, and gets maudlin and depressed will get even more coddled by the lawyer criminal lover dumbass, than now for any violent crime he commits.

Posted by: Supremacy Claus | Apr 19, 2010 10:14:22 PM

joey, "171 Easy Mitigating Factors" is a compilation of arguments and cases I have published over the years that support reductions in sentences. For more information go to the web at www.levinemchenry.com and follow the link or e-mail me directly.

Posted by: Michael R. Levine | Apr 20, 2010 12:45:41 PM

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