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October 31, 2011

The US Sentencing Commission new mega-report on mandatory minimums now available

I am pleased to see that the US Sentencing Commission has succeeded in releasing its massive new report on mandatory minimums, which has the formal (and oh-so-exciting) title "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System."  This official press release provides the basics on this important report:

Today the United States Sentencing Commission submitted to Congress its 645-page report assessing the impact of statutory mandatory minimum penalties on federal sentencing.

Judge Patti B. Saris, chair of the Commission stated, “While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984.”

In the report, the Commission recommends with respect to drug offenses that Congress reassess certain statutory recidivist provisions, and consider possible tailoring of the “safety valve” relief mechanism to other low-level, non-violent offenders convicted of other offenses carrying mandatory minimum penalties. It also recommends that Congress examine and reevaluate the “stacking” of mandatory minimum penalties for certain federal firearms offenses as the penalties that may result can be excessively severe and unjust, particularly in circumstances where there is no physical harm or threat of physical harm.

The Commission also addresses the overcrowding in the federal Bureau of Prisons, which is over-capacity by 37 percent. Saris noted, “The number of federal prisoners has tripled in the last 20 years. Although the Commission recognizes that mandatory minimum penalties are only one of the factors that have contributed to the increased capacity and cost of inmates in federal custody (an increase in immigration cases is another), the Commission recommends that Congress request prison impact analyses from the Commission as early as possible in the legislative process when Congress considers enacting or amending federal criminal penalties.”

The report was undertaken pursuant to a directive from Congress to examine mandatory minimum penalties, particularly in light of the Supreme Court’s 2005 decision in Booker v. United States, which rendered the federal sentencing guidelines advisory. The comprehensive report contains the most up-to-date data and findings on federal sentencing and the application of mandatory minimum penalties compiled since the Commission released its 1991 report. The Commission reviewed 73,239 cases from fiscal year 2010 as well as its data sets from previous fiscal years to conduct the data analyses in the report and support the findings and conclusions set forth.

Here are some of the report's key findings that are noted in the press release (with my emphasis added to spotlight data I found especially interesting and important):

The full 645-page(!) report is linked from this USSC webpage, and a 25-page executive summary is available at this link.  Lots and lots of posts about this report and the mass amount of data and analysis it reflects will follow through the days and weeks ahead.

October 31, 2011 at 04:38 PM | Permalink


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"The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984."

Then the Commission should get in gear to help Congress restore the "strong and effective system" we had pre-Booker, rather than the apply-them-if-you-like system we have now.

When the Supreme Court has told sentencing judges that they may not regard a within-guidelines sentence as EVEN REASONABLE, much less correct (Rita, Spears, Nelson), it's impossible to characterize what's going on now as "strong and effective."

The Commission simply doesn't care about the main purpose for which Congress established it in the SRA of 1984. As long as that attitude continues, there will be no such thing as "strong and effective" guidelines.

Posted by: Bill Otis | Oct 31, 2011 6:05:31 PM

The real problem, Bill, is that DOJ has never wanted (under either Bush or Obama) a mandatory system with Apprendi/Blakely rights. They did not seek this remedy in Booker, nor sought it when Rs controlled Congress, nor when Ds controlled Congress. That is one reason, I assume, DOJ was not even asked to testify at the House hearing two weeks ago. I suspect many, if not most, of the USSC members would embrace such a system (it makes the USSC that much more important), but DOJ opposition has made this largely a non-starter.

Posted by: Doug B. | Oct 31, 2011 8:31:50 PM

Doug --

One thing that should have happened when Mistretta took the USSC out of the executive branch and put it in the judicial branch is that it should have become more resisitant to political pressure, which is what we rightly expect of the judicial branch.

And, in fact, the USSC can resist DOJ pressure -- when it wants to. It did when it recommended total equalization of crack and powder, and it could do so here. It just doesn't want to.

Posted by: Bill Otis | Oct 31, 2011 9:06:40 PM

Kafka, Alice in Wonderland, Dickensian (Jarndyce, not Oliver Twist), call it what you will, but when 46% of convicted offenders get a sentence less than the "mandatory minimum," maybe we shouldn't use the phrase "mandatory minimum." I suggest "lower end of the advisory Congressional-guidelines range."

Posted by: Mark Pickrell | Oct 31, 2011 11:54:56 PM

The best and only constitutional way to have a "strong and effective" guidelines system is for the Commission to act like the expert body it was created to be. It has begun to act in that manner, thanks to the light that judicial decisions shine on the unsound guidelines wracked up over the 20 years when there was no transparency and DOJ controlled the Commission's work, behind the scenes and through its allies in Congress when necessary. As bad guidelines are fixed, judges follow them more often, as shown by the 2011 data. The Commission now wants to retreat to an unconstitutional system in which the guidelines have "substantial weight," judicial input is suppressed, there is less pressure to fix or explain the guidelines, and last but not least, we have another round of litigation that ends up in the Supreme Court. If the guidelines were made mandatory with jury factfinding, as Bill Otis argues they should be, there would be no Sentencing Commission, as some members of Congress have already recognized (and as Otis has argued), and the "guidelines" would be statutes, totally driven by politics. The Commission either does or should recognize that. DOJ does not support that system because line prosecutors believe the current system is working just fine, and they are right. The Commission has painted a misleading picture of the current system, and in doing so, has provided the "evidence" to enact the Commission-free system Otis advocates. There is a lot of fuzzy thinking and fear mongering going on, and it is a waste of time better spent elsewhere.

Posted by: ABE | Nov 1, 2011 9:08:22 AM


Did the folks who asked you to testify at the House hearing say why they weren't asking DOJ or FPD to testify?

Posted by: curious | Nov 1, 2011 12:49:18 PM

ABE --

"If the guidelines were made mandatory with jury factfinding, as Bill Otis argues they should be..."

Bill Otis along with Stevens and Souter -- real prosecution shills, wouldn't you say?

Posted by: Bill Otis | Nov 1, 2011 2:14:44 PM

curious --

Whatever reasons they had were not shared with me.

Posted by: Bill Otis | Nov 1, 2011 2:16:00 PM

Bill --


Posted by: curious | Nov 1, 2011 3:08:30 PM

my brother is in federal prison has done 1 year to be released in 2014 for intent to deliver marijuana he is in a federal camp and am wondering if there is any information on the release of other inmates or just inmates convicted of crack

Posted by: eva calderon | Nov 1, 2011 8:55:34 PM

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