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August 11, 2020

Can someone send Prez candidate Kanye West the Booker ruling making the federal sentencing guidelines advisory?

Maxresdefault (1)The question in the title of this post is part of my reaction to seeing the criminal justice items appearing on this quirky 10-point platform coming from quirky presidential candidate Kanye West.  Though I am inclined to dismiss West's candidacy as a stunt, i believe he will be appearing on some state ballots.  And so here are two of his platform points addressing criminal justice concerns:

5. Reform the legal system to provide true justice, equitable for all citizens, regardless of race or ability to defend oneself in court.  Recognize the disparity in verdicts and prison sentences, caused by the lack of financial resources or legal assistance.

There will not be differing weights and differing measures.  Proverbs 20:10

6. Reform the approach to policing in a manner that treats all Americans the same, regardless of race, color, or ethnicity.  Refocus police forces on real crime.  Eliminate federal sentencing guidelines that tie the hands of judges, resulting in ridiculous sentences for the most minor offenses.

We will speak for those who cannot speak for themselves.  Proverbs 31:8

If the reference here to "federal sentencing guidelines" was instead to "federal mandatory minimum statutes" it would be accurate to lament how they can "tie the hands of judges, resulting in ridiculous sentences for the most minor offenses."  Recall, for example, the case of Edward Young serving a 15-year mandatory minimum Armed Career Criminal Act sentence for the crime of possessing seven shotgun shells in a drawer.  But, as most readers surely know, since the 2005 Booker ruling made the federal sentencing guidelines advisory, these guidelines no longer formally "tie the hands of judges" (though they certainly still influence lots of judges at sentencing).

August 11, 2020 at 10:30 AM | Permalink

Comments

The guidelines are actually mandatory minimums insofar as there are many entirely justified low sentences that no circuit court would ever uphold as substantively reasonable. They create an anchor that all too often binds the sentencing judge not to go past a certain point away from in case of policy disagreement. That will remain the case so long as appellate courts are allowed to do substantive review. Do we really need to keep in prison possessors, recipients, and sharers of criminal underage material who would never go near a child in real life? Insider traders? Non-violent non-drug felons in possession of a firearm ? Any felons who want to protect themselves with body armor? Stucturers? Debtors who haven't repaid the state for money given to a custodial parent? The list goes on and on, but even when mandatory minimums don't apply, in many cases a sentencing judge could never get away with a non-custodial sentence. Until courts are asked to apply a heavy presumption against prison sentences for anyone who hasn't stolen from the public or caused a direct, tangible, concrete harm to an actually identifiable person, the incarceration problem won't begin to be solved.

Posted by: Poirot | Aug 11, 2020 7:12:18 PM

And sad to say, Kamala Harris wouldn't let any of these people out if given the chance, but Kanye just might.

Posted by: Poirot | Aug 11, 2020 8:10:56 PM

It is a shame you were not consulted, Poirot, on the Kanye platform, as you might have reasonably added to point 5 or point 6 this action item: "Create a heavy presumption against prison sentences for anyone who hasn't stolen from the public or caused a direct, tangible, concrete harm to an actually identifiable person."

Posted by: Douglas A Berman | Aug 12, 2020 9:39:36 AM

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