- Bipartisan Support Increasing for Reform of Mandatory Minimum Sentencing: Congress is now considering two bi-partisan bills, the Smarter Sentencing Act (S. 1410) and the Justice Safety Valve Act (HR 1695 and S 619). If enacted, the Smarter Sentencing Act would: provide for retroactive application of the 2010 Fair Sentencing Act, which reduced excessive penalties for federal crack cocaine offenses; reduce the five-, 10-, and 20-year mandatory minimum sentences for many federal drug crimes to two-, five-, and 10-year terms, respectively; and expand the existing “safety valve” exception for drug offenses to apply to people who fall into Criminal History Categories I or II under the U.S. Sentencing Guidelines (rather than just Criminal History Category I, as is currently the case). The Smarter Sentencing Act would give federal courts more discretion to depart from any mandatory minimum sentence. In light of the pending legislation, practitioners may want to consider postponements for defendants facing mandatory minimum sentences that could be impacted by any of the bills. See this Sentencing Law and Policy Blog post, Order Granting Motion to Continue, and Order Vacating Sentencing Hearing.
- Sentencing Resource Counsel Rebut Commission's Booker Report: In December 2012 the Commission issued its Report on the Continuing Impact of United States v. Booker on Federal Sentencing. In the following articles and fact sheets, Sentencing Resource Counsel have rebutted various claims made in the Commission's Report:
For more on the Commission's legislative efforts, see below on this page.
- Federal Defenders, ABA, FAMM, ACLU, NACDL and the Constitution Project Oppose Proposals by the Commission and Others to Make the Guidelines More Mandatory: On October 12, 2011, a hearing entitled “Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker,” was held in the House Subcommittee on Crime, Terrorism and Homeland Security. Two of the witnesses had institutional affiliations, Judge Saris, the Chair of the Sentencing Commission, called by the majority, and Jim Felman on behalf of the American Bar Association, called by the minority. The majority’s other two witnesses were Bill Otis, an adjunct professor and former federal prosecutor, and Matthew Miner, a partner at a law firm and former Republican staffer in the Senate. Neither DOJ nor a representative of the Judiciary testified. (See hearing video.)
Mr. Otis proposed that the Commission be abolished and that Congress legislate sentencing rules to be charged and subject to jury factfinding. Mr. Miner agreed that the guidelines should be made mandatory with jury factfinding, but that in the meantime, Congress should adopt a standard of review to more strictly enforce the guidelines.
Jim Felman provided an accurate description of the current advisory guidelines system, and convincingly argued that no change should be made. (See Felman testimony.)
The Commission urged six proposals that alone and together would give “substantial weight” to the guidelines, and would suppress judicial variances and feedback about problems with the guidelines. The Commission’s proposed presumptive guidelines system is unlikely to be constitutional. In support of its proposal, the Commission cited three “weaknesses” in the advisory guidelines system: (1) judges are increasingly sentencing outside the guideline range; (2) increased judicial discretion has resulted in racial disparity; and (3) there are differences in rates of judicial variances among districts. (See Saris testimony
The Federal Public and Community Defenders were invited to comment, and provided a letter agreeing with the vast majority of judges that the advisory guidelines system best achieves the purposes of sentencing, and claiming that the Commission’s account of the current system is inaccurate and incomplete. (See Defender letter
.) In particular:
- Rates of below-range sentences increased after Booker because the guidelines were amended in a one-way upward ratchet during the mandatory guidelines era, consist of numerous aggravating factors, and exclude, discourage and prohibit most relevant mitigating factors.
- Courts now provide sentencing data and reasons that the Commission can use, and has used, to revise the guidelines to better achieve the purposes of sentencing.
- The rate of judicial variances has begun to drop concurrent with amendment of unsound guidelines.
- Sentence lengths remain high and the extent of decrease when judges depart or vary is small.
- The Commission’s claim of racial disparity rests on a study that omits many relevant factors that judges legitimately consider at sentencing, omissions that make its results unreliable. A different study by the Commission found the greatest disparity when the guidelines were mandatory, and its most recent study shows that sentence length disparity has decreased since March 2010. The Commission’s study has been refuted by a different study finding that "racial and gender sentence length disparities are less today, under advisory Guidelines, than they were when the Guidelines were arguably their most rigid and constraining." Differences in rates of judicial below-guideline sentences among districts stem from many legitimate sources, none of which the Commission addresses. Research performed by others shows that variation in sentence length among districts has decreased after Booker.
Defenders have also prepared Fact Sheets demonstrating that the advisory guidelines and current standard of review best achieve the purposes of sentencing; that the Commission's claims of race and inter-district disparity are unfounded; and that the Commission's proposals would radically change current practice, result in disruptive litigation, and likely be struck down by the Supreme Court.
Families Against Mandatory Minimums, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, and the Constitution Project also submitted letters supporting the advisory guidelines system and opposing a Booker fix. (See FAMM letter; ACLU letter; NACDL letter; Constitution Project letter.)