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November 01, 2011

Advisory Sentencing Guidelines Working, ABA Says

Ken Cohen, general counsel for the U.S. Sentencing Commission, chatted with ABA witness James E. Felman before the Oct. 12 hearing.

The ABA, in testimony last month before a House Judiciary subcommittee, maintained that there is no need to fundamentally overhaul the current advisory sentencing guidelines system.

“With continued commitment by the Sentencing Commission to the promulgation and revision of guidelines based on empirical data and research, I believe advisory guidelines can best advance the purposes of sentencing and reduce both unwarranted disparity and its equally problematic inverse, unwarranted uniformity,” ABA witness James E. Felman, co-chair of the Criminal Justice Section’s Committee on Sentencing, told the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security.

Felman, who also serves as the association’s liaison to the Sentencing Commission, appeared on a panel before the subcommittee Oct. 12 to discuss the impact of the 2005 Supreme Court decision in U.S. v. Booker, 543 U.S. 220 (2005), which ruled that key elements of the Sentencing Reform Act of 1984 (SRA) were unconstitutional, effectively rendering the federal sentencing guidelines advisory. The court struck down, as a violation of the Sixth Amendment, provisions in the act that made it mandatory for district courts to impose sentences according to the sentencing guidelines.

Felman explained that the primary goal of the SRA was the elimination of unwarranted disparity by bringing consistency and rationality to the federal sentencing system through guidelines promulgated by a Sentencing Commission established by the act. He emphasized that the SRA was not intended to eliminate consideration of offender characteristics by a judge at sentencing and explained that the act directed the Sentencing Commission to provide “sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.”

Felman also noted that since the Booker decision advisory guidelines have not resulted in decreased sentence lengths and that the courts have been able to be smarter about who goes to jail and the length of their sentences based on important individual circumstances of the defendants. He acknowledged that, although the big picture data show an advisory system that has improved upon the mandatory regime, there is more work to be done to improve the advisory guidelines through greater and more targeted data collection, further use of judicial feedback and continuing empirical research.

In his statement, Felman also urged Congress to repeal laws requiring mandatory minimum sentences, which he said “blind the courts to the defendant’s role in the offense and his or her acceptance of responsibility.”  The ABA has opposed mandatory minimums for more than 40 years, maintaining that persons with legitimate mitigating factors based on degree of culpability, role in the offense, personal circumstances and background frequently unfairly receive the same punishment as kingpins and hardened criminals.

During the Oct. 12 hearing, Judge Patti B. Saris, Sentencing Commission chair, testified that the commission believes that some adjustments to the current federal sentencing system should be considered by Congress. She recommended that Congress enact a more robust appellate review standard that requires appellate courts to apply a presumption of reasonableness to sentences within the properly calculated guidelines range. She also suggested that Congress clarify statutory directives to the commission and the courts that are “in tension.”

Saris emphasized the commission’s role in providing research and analyses on short- and long-term guidelines and highlighted the release of the first comprehensive review since 1991 of statutory mandatory minimum penalties.

The 645-page report, issued Oct. 31, concluded that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The report recommends that Congress reassess certain statutory recidivist provisions regarding drug offenses and examine and reevaluate the “stacking” of mandatory minimum penalties for certain federal firearms offenses. Such stacking may result in penalties that are excessively severe and unjust, according to the report, particularly in circumstances where there is no physical harm or threat of physical harm.

Noting the overcrowding of prisons, the report also recommends that Congress request prison impact analyses from the Sentencing Commission early in the legislative process when Congress is considering enacting or amending federal criminal penalties.

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