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: