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July 01, 2013

ABA expresses support for proposed sentencing priorities

The ABA expressed support this month for several tentative  priorities proposed by the U.S. Sentencing Commission for the 2013-14 amendment cycle, during which the commission will develop and submit guideline amendments to Congress by May 1, 2014.

The ABA recommendations were based on ABA policies after careful study by the association’s Criminal Justice Section Sentencing Committee, co-chaired by James Felman and Barry Boss. In comments submitted July 8 to Sentencing Commission Chair Patti B. Saris, ABA Governmental Affairs Director Thomas M. Susman highlighted the following commission priorities that the ABA maintains should be included for this year.

     • Continuation of the commission’s work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendation of the commission’s 2011 report for Congress, Mandatory Minimum Penalties in the Federal Criminal Justice System. The ABA has long supported the repeal of statutory mandatory minimum sentencing, Susman said, quoting from the 2004 ABA Justice Kennedy Commission, which recognized that such sentences should be avoided “so that sentencing courts may consider the unique characteristics of offenses and offenders that may warrant an increase or decrease in a sentence.”

     • Continuation of the commission’s work on economic crimes, including a comprehensive multi-year study of §2B1.1 (Theft, Property Destruction and Fraud) and related guidelines. The ABA considers current sentencing for economic crimes to be overly punitive and in dire need of reform and has formed a Special Task Force on the Reform of Federal Sentencing for Economic Crimes to provide input to the commission.

     • Possible consideration of amending the policy statement pertaining to compassionate release, in line with the ABA’s support for adoption of sentence reduction mechanisms to respond to extraordinary changes in a prisoner’s situation that arise after a sentence has become final. Susman pointed out that a recent Justice Department Inspector General report revealed that the existing Bureau of Prisons compassionate release program has been “poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided.”

     • Continuation of work to implement the recommendations in the commission’s December 2012 report to Congress, Federal Child Pornography Offenses, and to develop appropriate guideline amendments. In light of the report, the ABA maintains that child pornography should be a priority for the commission and emphasized ABA policy adopted in 2011. That policy urges the commission to complete a comprehensive assessment of the sentencing guidelines for child pornography offenses, taking into account the severity of each offense and factors pertaining to the current nature of the offenses, offenders, victims and the role of technology in these offenses.

One proposed priority that the ABA does not support, according to Susman, is the implementation of recommendations from the commission’s 2012 report on the continuing impact on federal sentencing of the Supreme Court decision in United States v. Booker, 543 U.S. 220 (2005), which rendered the U.S. Sentencing Guidelines advisory rather than mandatory.

Susman explained that the ABA believes that, rather than focusing on recommendations to eliminate sentencing disparities, the commission should work on the more significant problems of over-reliance on incarceration and excessive periods of incarceration for non-violent offenders.

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