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Federal Sentencing Guidelines: Should They Be Abolished?

August 15, 2009 /24-7PressRelease/ — Federal Sentencing Guidelines: Should They Be Abolished?

Article provided by The Crowley Law Firm
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Outside of the ongoing healthcare debate, arguably the most controversial issue facing the 111th Congress stems from federal sentencing guidelines. Much maligned for their disproportionate impact on minorities and the poor, mandatory minimum sentences are facing increased scrutiny in light of state budget shortfalls, federal deficits, and changing policy on crime and punishment in America.

This article highlights the history of federal sentencing guidelines, the number of reforms implemented as well as the current state of sentencing policy. It also explores the steps Congress is taking to address ambiguities and improper sentences.

History and Background

Today’s sentencing guidelines are a product of the United States Sentencing Guidelines Commission. Created through the Sentencing Reform Act of 1984, the commission was charged with making precise and uniform sentences that would be applicable across all federal districts. In following the Guidelines, federal judges would determine sentences based on a point system matrix that considered offense behavior, offender characteristics and other relevant factors in a particular case.

The sentencing commission envisioned modest increases in costs and incarcerations when the new guidelines were implemented. However, the federal prison population quadrupled over the next 20 years, and costs ballooned 925% to $5.4 billion in 2007.

Moreover, federal prosecutors and defense attorneys have had continual difficulties defining offender behavior and determining how they fit into guideline sentences. This was especially troubling in light of the Anti-Drug Abuse Act of 1986. Passed by Congress in the wake of Len Bias’ death, the Act was meant to be a tough stance on the burgeoning drug crisis, specifically the crack epidemic plaguing major American cities. Legislators relied on testimony suggesting that crack was much more addictive than powder cocaine, accounted for more violent crime and was ultimately a threat to national security. As such, convictions for five grams of crack cocaine would yield the same five-year minimum sentence as 500 grams of powder cocaine; essentially a 100 to 1 sentencing disparity.

These sentences led to huge increases in the prison population based on drug crime convictions, but it did little to curb the crime the Act was meant to prevent.

Sentencing Reform Efforts

The Guidelines have seen a number of challenges, most commonly on Sixth Amendment grounds. Defendants continually alleged that the Guidelines violated their Sixth Amendment right to trial. In 2000, the U.S. Supreme Court in Apprendi v. New Jersey determined that Sixth Amendment required federal judges to base sentences solely on facts reflected in a jury verdict or admitted by the defendant, and not simply upon sentencing guidelines. The Court rendered a similar decision in Blakely v. Washington in 2004. In 2005, through U.S. v. Booker, the Court made a fundamental change in how federal judges would apply the Guidelines; making them “advisory” instead of mandatory.

This marked the start of a continuing departure from the Guidelines. Federal judges were allowed discretion in determining sentences for unique circumstances. Sentencing Commission data shows that defendants sentenced within the Guidelines has decreased since U.S. v. Booker. However, controversy has followed this practice as well. In U.S. v. Farley, U.S. District Court Judge Beverly Martin ruled Congress’ mandatory minimum 30 year sentence for pedophiles unconstitutional in sentencing a man convicted in a sting operation where FBI agents posed as a minor over the Internet.

In her ruling, Judge Martin reasoned that “Congress requires the same minimum mandatory 30-year term for someone who actually engages in sex with a child.” She noted that no actual harm was suffered in the present case, “because the child was a creation of law enforcement and no real child exists.” Her decision also noted that the maximum penalty for crossing state lines with the intent to kill someone is 10 years in prison; 20 years if the victim is physically harmed. As such, her sentence of 19 years and seven months for Mr. Farley was appropriate given the circumstances, even though it was less than the mandatory minimum imposed by statute.

This has also led to the reconsideration of many drug conviction sentences. In December 2007, the Sentencing Commission made changes to the quantity guidelines that control sentencing for crack cocaine convictions. These were made retroactive to convictions made under the previous guidelines. A number of defendants have petitioned appeals courts to have their sentences reconsidered in light of U.S. v. Booker and the 2007 guideline changes.

Latest Developments

On July 29, 2009, the House Judiciary Committee passed legislation designed to equalize federal sentences for offenses involving crack and powder cocaine. The Fairness in Cocaine Sentencing Act of 2009 is sponsored by Rep. Robert “Bobby” Scott (D-Va.), chairman of the Subcommittee on Crime, Terrorism and Homeland Security. The bill would reset the sentencing trigger at 500 grams for both crack and powder cocaine and eliminate the mandatory minimum sentence attached to possessing crack.

In the Senate, Majority Whip Richard J. Durbin, (D-Ill.), is expected to introduce similar legislation, which is expected to receive bipartisan support from Senate Judiciary Committee members. It is conceivable that more sentencing reform acts will emerge from Congress to combat disproportionate sentences and allow judges to hand down proper sentences despite deviations from the Guidelines.

In sum, as sentencing policy continues to change, judges will gradually gain more flexibility in sentencing to account for unique circumstances not considered by statute.