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January 19, 2012

In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"

As detailed in this official notice, I have the honor of being in Washington DC this afternoon to participate in an ACS/ACLU event on federal sentencing.  Here is the set-up by the hosts:

On Thursday, January 19, 2012, at 1:30 p.m., ACS and the ACLU will host The Relevancy and Reach of the U.S. Sentencing Commission.  During the height of the War on Drugs, in 1984, the U.S. Sentencing Commission was created.  The intent behind the Commission was to provide uniformity to the sentences –- many of them drug sentences -- that were imposed upon federal criminal offenders.  However, instead of eliminating racial and other disparities as intended, the mandatory guidelines perpetuated disparities and took away judicial discretion.  Judges’ hands were tied, with many of them forced to render sentences that they felt were unfair and unjust, especially when it came to sentencing for crimes associated with crack cocaine.

In 2005, the U.S. Supreme Court deemed these federal sentencing guidelines in violation of the Sixth Amendment in U.S. v. Booker.  While the Commission could continue to advise on proper sentencing, the guidelines would be advisory. In the years that have followed, the Commission has continued to play a prominent role in sentencing, most recently generating attention for its decision this past summer to make federal crack cocaine sentencing guidelines retroactive after the enactment of the Fair Sentencing Act.  In the wake of this controversial decision, questions surround the Commission, namely, does the Commission remain valid and legitimate in purpose today?

And here is a rough sketch of what I am planning to say on the panel:

The US Sentencing Commission remains quite valid and legitimate, but it should, at this important moment in federal sentencing law and policy, shift its focus to worrying much, much more about unwarranted sentencing severity while worrying much, much less about unwarranted sentencing disparity. Indeed, evidence of sentencing disparity is always contestable and often contested, and efforts to reduce disparities through new sentencing rules often will produce unintended consequences (in part because modern prosecutorial discretion likely impacts disparities much more than judicial discretion). Moreover, and perhaps most importantly, unwarranted sentencing severity is usually the root cause of unwarranted sentencing disparity: white-collar, drug and child porn sentencings are the settings where, because the guidelines can often suggest crazy high prison terms, different judges make different judgments about whether and how much to vary below the applicable guideline range. As a practical matter, reducing unwarranted sentencing severity is probably going to be the most effective way to reduce unwarranted sentencing disparity.

January 19, 2012 at 11:57 AM | Permalink


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Prof. B:

Your position is so sensible, yet so rarely voiced. It needs to be shouted from the rooftops. Thanks.

Posted by: common sense | Jan 19, 2012 12:08:19 PM

Thanks Doug - Congress needs this message also.

Posted by: beth | Jan 19, 2012 2:56:07 PM

No participant to speak on behalf of the V word. Only rent seeking lawyer interests are represented. I doubt any one even wants to admit, the sole mature and effective goal of the criminal law is incapacitation. A biased, pro-criminal, left wing gabfest with the validity of a witches' coven. Perhaps, they can think of more registries to start.

Posted by: Supremacy Claus | Jan 20, 2012 4:49:51 AM

Arguable,if not reasonable, points. But is that a realistic goal for the already politically weak US Sentencing Commission?

Posted by: Realism? | Jan 23, 2012 2:00:27 PM

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