This section provides manuals, select Commission reports, DOJ documents, legislative testimony, and other resources that may be helpful in arguing for a non-guidelines sentence under 18 U.S.C. §3553(a).
- DOJ Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (August 12, 2013)
During his remarks at the August 12, 2013 Annual Meeting of the ABA's House of Delegates, Attorney General Eric Holder announced new policies to limit the charging of mandatory minimums in drug cases, including for prior convictions under 21 U.S.C. 851, to encourage prosecutors not to charge minor offenses federally, and to encourage prosecutors to move for variances when the guideline range exceeds a mandatory minimum. On August 29, 2013 Holder issued a memo on Retroactive Application of Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases, stating that the new charging policy must be applied in cases where the defendant has not yet been convicted and may be applied in cases where the defendant has not yet been sentenced.
- Memo of Attorney General Eric Holder Regarding DOJ Policy on Charging and Sentencing (May 19, 2010)
- Five Things About Deterrence (July 2014)
National Institute of Justice
This DOJ publication confirms that longer sentences do not deter crime.
- The Growth of Incarceration in the United States: Exploring Causes and Consequences
National Research Council
This report concludes that given the minimal impact of long prison sentences on crime prevention and the negative social consequences and burdensome financial costs of U.S. incarceration rates, which have more than quadrupled in the last four decades, the nation should revise current criminal justice policies to significantly reduce imprisonment rates.
- Using Social Science at Sentencing
by Denise C. Barrett and Laura E. Mate, Sentencing Resource Counsel Project
Recent research in criminology and other related social and behavioral sciences provides empirical evidence relevant to the purposes of sentencing. This document provides a sampling of some of this research.
- Fighting Fiction with Fact to Attain Lower Sentences
by Laura E. Mate, Denise C. Barrett, and Anne E. Blanchard, Sentencing Resource Counsel Project
(Listing research that practitioners can use to debunk common sentencing myths.)
- United States Sentencing Commission's Interactive Sourcebook of Federal Sentencing Statistics
- Federal Public Defender’s Office Sentencing Resource Manual: Using Statistics and Studies to Redefine the Purposes of Sentencing (last updated September 2008)
Edited by Jennifer Coffin, Research & Writing Specialist, Federal Public Defender's Office, M.D. TN;
Sarah Gannett, Research & Writing Specialist, Federal Public Defender's Office, D. MD; Molly Roth, Assistant Federal Public Defender, W.D. TX
A compilation of useful resources that federal defense attorneys can consult when drafting sentencing memoranda and making oral arguments for sentences below the advisory guideline range.
- 3553(a) Allocution Pleading and The Story Behind the Allocution Pleading
developed by Tony Lacy, Assistant Federal Public Defender, W.D. OK
This Allocution Pleading sets forth a series of questions based on the 3553(a) factors. Practitioners can present these questions to a client before sentencing, allowing the client to put in his or her own words what facts and circumstances the court should consider in fashioning an appropriate sentence. Answering these questions for the sentencing judge encourages the client to think about the sentencing process, and it provides insight lacking in the Presentence Investigation Report.
- Collateral Consequences Resource List
by Denise Barrett and Sara Silva of the Sentencing Resource Counsel Project
(This resource list is designed to serve as a starting point for exploring the collateral consequences of convictions and imprisonment and for educating your judge about these "invisible punishments.")
- National Inventory of the Collateral Consequences of Conviction
This Inventory, created by the ABA Criminal Justice Section, is the first effort to systematically collect in one place the collateral consequences of conviction that exist in the laws and regulations of every state and in the federal system.
- NACDL Restoration of Rights Project
This resource provides a collection of individual downloadable documents that profile the law and practice in each U.S. jurisdiction relating to relief from the collateral consequences of conviction. The profiles include provisions on loss and restoration of civil rights and firearms privileges, legal mechanisms for overcoming or mitigating collateral consequences, and provisions addressing non-discrimination in employment and licensing. In addition to the 54 jurisdictional profiles, there is a set of 50-state charts that make it possible to see national patterns in restoration laws and policies.
- Video: Mitgation Tools When Arguing for a Better Sentence
- Defender Letter to Lanny Breuer Regarding Speech at the American Lawyer/National Law Journal Summit
By David E. Patton, Executive Director, Federal Defenders of New York, Inc.; Margy Meyers, Federal Public Defender, S.D.TX; and Henry Bemporad, Federal Public Defender, W.D. TX
In this letter, the authors respond to a November 15, 2011 speech by Lanny Breuer, in which he stated, "In short, many prosecutors, defense lawyers, and judges agree that more and more, the length of a defendant's sentence depends primarily on the identity of the judge assigned to the case, and the district in which he or she is in." The authors demonstrate that sentencing "disparities have far more to do with the types of cases that arise in each district, and the prosecution policies that local federal prosecutors have chosen to address these cases" than the identity of the sentencing judge.
- Supplementary Report on the Initial Sentencing Guidelines and Policy Statements (1987)
United States Sentencing Commission
This publication was issued by the Commission in 1987, shortly after the first edition of the guidelines was submitted to Congress. It is a primary source for "legislative history" of the guidelines. It supplements and further explains the guidelines, policy statements and commentary, and includes the results of the Commission's "past practice study" mentioned by Justice Breyer in Rita v. United States, 127 S. Ct. 2456, 2464 (2007).
- An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories: Part I & Part II (February 4, 1994)
(U.S. Department of Justice) (finding that a substantial number of minor role drug offenders with minimal criminal histories "are much less likely than high-level defendants to re-offend" and "a short prison sentence is just as likely to deter them from future offending as a long prison sentence.")
- Your Client Will Not Get Mental Health Treatment in Prison: A Primer on How to Back Up That Claim
by James Tibensky, Mitigation Specialist, Federal Defender Program of Chicago
This article sets forth data to support an argument that a client should receive a non-prison sentence based on lack of access to mental health treatment through the Bureau of Prisons.
- Testimony from Joint Economic Committee Hearing on Negative Impacts of Mass Incarceration
On October 4, 2007, the joint House and Senate Economic Committee held a hearing to "examine why the United States has such a disproportionate share of the world's prison population, as well as ways to address this issue that responsibly balance public safety and the high social and economic costs of imprisonment." The testimony and data from this hearing provide valuable information that may help you create or support sentencing arguments.