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Threat to Current Sentencing Law Looms: Are We Headed Back to Mandatory Guidelines?

Sandhya Bathija,
Washington Legislative Office
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February 3, 2012

The debate over sentencing guidelines is about to heat up in Congress, according to a recent report by NPR. In a story that ran on Tuesday’s Morning Edition, Carrie Johnson reports that some GOP members of Congress aren’t happy with the current state of federal sentencing guidelines.

For decades, mandatory sentencing guidelines forced judges to hand down harsh and unfair sentences that did not always fit the offender and unnecessarily flooded our prisons. This included the mandatory sentencing scheme that unequally punished comparable offenses involving crack and powder cocaine at a ratio of 100:1 and resulted in racially biased sentencing.

But in 2005, the Supreme Court ruled in U.S. v. Booker that the sentencing guidelines were advisory, not mandatory. While judges were required to consult the guidelines, they had flexibility to take into account other factors and ensure that sentences were not greater than necessary. The ACLU applauded this decision as a step toward fairness and more sensible sentencing.

The U.S. Sentencing Commission, which developed the original mandatory guidelines, continues to play a critical role in shaping sentencing guidelines. Last year, the commission recommended that the new, fairer sentencing guidelines for crack cocaine offenses established by the Fair Sentencing Act (FSA) should be applied retroactively to people sentenced before the FSA was passed. The FSA reduced the sentencing disparity between crack and powder cocaine offenses — two forms of the same drug — from 100:1 to 18:1 (an improvement, although the fairest guidelines would be 1:1).

Despite the fact that FSA retroactivity brought desperately needed improvements to federal sentences, the commission’s decision wasn’t well-received by all. In October, in response to the decision, the House Judiciary Committee held an ironic hearing: whether the fairer sentencing system is fair and what role the commission should play in it.

Some legislators now falsely argue that the post-Booker scheme has led to more unwarranted disparity in sentencing, and called for a return to mandatory sentencing guidelines. Some called for an end to the commission all together.

The ACLU submitted a statement at the October hearing arguing that the current system and the commission have resulted in and continue to encourage more fairness in sentencing. In fact, the Booker decision still requires judges to use the guidelines as a starting point, and judges have handed out within-guidelines sentences in the majority of cases since Booker.

To continue the discussion on the issue, in late January, the ACLU and the American Constitution Society held a panel that can be watched in full here. “The Relevancy and Reach of the U.S. Sentencing Commission” was moderated by Jesselyn McCurdy, ACLU senior legislative counsel, and the panelists included the Honorable Patti B. Saris, U.S. District Court for the District of Massachusetts and Chair of the U.S. Sentencing Commission; Amy Baron-Evans, Sentencing Resource Counsel, Federal Public and Community Defenders; Douglas A. Berman, law professor at The Ohio State University Moritz College of Law; and Michael Volkov, partner at the law firm Mayer Brown.

In recent years, we have finally gotten closer to finding the right balance between the concepts of consistency and fairness in sentencing. Both the advisory guidelines and the U.S. Sentencing Commission have been responsible for achieving this balance.

The commission serves a vital role in improving federal sentencing laws to make individual sentences fair and works to educate judges and practitioners on improved sentencing practices. Returning to mandatory guidelines and abolishing the commission would be a disastrous step backward and would only lead to America maintaining its position as the world’s largest incarcerator.

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