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July 8, 2010

Judge Bright makes pitch for sentencing councils to deal with post-Booker disparities

A number of helpful readers have alerted me to the intriguing little concurrence penned by Judge Bright in US v. Ayala, No. 09-2123 (8th Cir. July 8, 2010) (available here).  Here are snippets from an interesting read:

Sentencing discretion should not become the justification for federal courts’ acceptance of disparity between similarly situated defendants. Disparity erodes public confidence in the fair administration of our criminal justice system....

If we can agree with Justice Jackson that disparity based on the identity of the sentencing judge has pernicious effects, how, in this age of discretion, can the federal judiciary address sentencing disparity? I suggest that federal sentencing judges, particularly those in multi-judge districts, examine and institute sentencing councils similar to those that existed before the guidelines....

Although sentencing councils did not eliminate sentencing disparity, they did reduce disparity. Importantly, councils provided a means for sentencing judges to receive valuable feedback on the type of sentence being contemplated.

Although needing substantial revision, the advisory guidelines may be helpful in reducing improper disparity. However, a guideline sentence often may not be appropriate and a judge should consider and analyze the statutory factors, see 18 U.S.C. § 3553(a), to arrive at a fair and reasonable result. Sentencing councils would assist federal judges in fashioning sentences in accordance with section 3553(a) and alert judges to situations where their personal viewpoints may result in a disparate sentence.

Moreover, because of our nation’s technological advances, today’s councils could include the viewpoints of judges from various geographical areas.  The recommendations of councils might be shared easily among the federal judiciary.

The judiciary’s work is not finished so long as sentencing in federal courts is affected by the fortuitous vel non circumstances described by Justice Jackson. Judges in the federal district courts as well as federal appellate judges need to address and reduce disparity in sentencing similar criminal offenders.  Otherwise, a sentence may largely reflect the ideology or viewpoint of the sentencing judge rather than the nature of the crime and history and characteristics of the offender.

July 8, 2010 at 12:48 PM | Permalink


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I have been researching the issue of sentencing disparity and very much appreciated Judge Bright's concurrence.

Posted by: Elaine Mittleman | Jul 12, 2010 12:26:11 AM

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