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March 01, 2012

Sentencing Commission Weighs Changes in Sentencing System

ABA sees no need to jettison advisory guidelines

ABA witness James E. Felman, testifying Feb. 16 before the U.S. Sentencing Commission, maintained that the current system of advisory guidelines is the best means available of achieving the original goals of the 1994 Sentencing Reform Act (SRA) – the elimination of both unwarranted disparity and unwarranted uniformity in sentencing.

The Sentencing Commission hearing focused on the impact of the 2005 Supreme Court decision in U.S. v. Booker, 543 U.S. 220 (2005), in which the court ruled that key elements of the SRA were unconstitutional, effectively rendering the federal sentencing guidelines advisory rather than mandatory. The commission maintains that some adjustments to the current system should be considered by Congress.

Felman, the ABA’s liaison to the commission and a co-chair of the ABA Criminal Justice Section Committee on Sentencing, emphasized that use of advisory guidelines has not resulted in decreased sentence lengths as supporters of mandatory guidelines had feared.

 “While average sentence lengths have not materially decreased as a result of the guidelines’ advisory nature,” Felman said, “what has changed is that courts have been able to be smarter about who goes to jail for how long because of their ability to more meaningfully consider the aggravating and mitigating aspects of the offense and the individual history and characteristics of the defendants.”

Felman noted that there is more work to be done to improve the advisory guidelines, including the gathering and publishing of additional data and acting on the data received. He said the guidelines must be revised over time in light of empirical research and sentencing data.

Felman also testified that the most pressing problem confronting the Sentencing Commission is not disparity of sentences but severity. He expressed ABA concern about the over-reliance on incarceration in American criminal justice policy, explaining that roughly one quarter of all persons imprisoned in the entire world are imprisoned in the United States and that the incarceration explosion over the last 40 years is unmatched by any other society in any historical era.

In response to the commission’s request for comments on whether Congress should increase the use of mandatory minimum statutes, Felman reiterated the ABA’s view that sentencing by mandatory minimums is the “antithesis of rational sentencing policy.”

Also testifying at the hearing was Douglas A, Berman, a professor at Ohio State University Moritz College of Law, who said there has been no serious advocacy coming from either federal prosecutors or the defense bar for any significant structural reforms to the post-Booker federal sentencing system. “Put simply and with folk wisdom in mind,” Berman said, “all of those working most closely with the federal sentencing system think it ain’t broke.”

District Judge William K. Sessions III of the District of Vermont maintained that commission statistics reflect an increase in both inter-judge and demographic disparities in sentencing. He cautioned against expanding the use of mandatory minimum sentences, however, and said that such sentences at severe thresholds increase disrespect for the guidelines system and encourage practitioners to use techniques to circumvent their implementation. Sessions outlined his own proposals that call for presumptive guidelines subject to meaningful appellate review that are simpler than the current guidelines, that afford sentencing judges meaningful discretion with fewer and broader sentencing ranges, and that are subject to few or no mandatory minimum statutes.

Assistant Attorney General Matthew Axelrod testified that the Justice Department will work with the commission and Congress to control prison spending by reducing the total number of years served in the federal prison system, reducing unwarranted sentencing disparities and increasing consistencies in sentencing policy and practice, and reconciling sentencing doctrine around the use of federal characteristics in sentencing decision-making.

Axelrod also noted that there are serious constitutional and policy questions around some of the proposals that have been put forward to improve federal sentencing policy.

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