Advisory Guidelines v. Mandatory Guidelines
3/17/06
The debate on advisory versus mandatory sentencing guidelines rages on. Some say the advisory system is broken and must be “fixed” by returning to a system of mandatory sentencing guidelines. Among them is, William Mercer, the associate deputy attorney general who testified in support of mandatory guidelines at a hearing held by the Crime, Terrorism and Homeland Security subcommittee of the House Judiciary Committee..
The system Mercer described would give the low-end of the guideline range “the force of law” while allowing the upper end to be flexible, without a top . Under this “topless” system, it would be difficult and frequently impossible for judges to sentence below the guideline sentence, while ensuring that judges could increase the sentences all the way to the statutory maximum if desired.
Relying on selective statistics and ignoring the overall trends in sentencing, Mercer signaled the Department of Justice’s (DOJ) decision to throw its weight behind a proposal that many have criticized as unfair and certain to invite vigorous litigation from defendants eager to challenge its constitutionality.
Before the hearing, the subcommittee chair, Rep. F. James Sensenbrenner (R-Wis.), echoed Mercer’s concerns and call. Referring to the U.S. Sentencing Commission’s report on a year of sentencing following Booker (see page xx), Rep. Sensenbrenner said that “the data is now in and the picture is not pretty.” He scheduled the hearings, “United States v. Booker: One Year Later – Chaos or Status Quo?,” to review the commission’s report. He has since made clear his determination to introduce legislation that would restructure sentencing along the lines sought by the DOJ.
Reform, not major change
Other witnesses at the hearing, however, described a stable system that could benefit from some reform but nothing as radical and fraught with danger as “topless” guidelines. For example, Judge Paul Cassell of the District of Utah found that the Booker decision had changed little in federal sentences. While recognizing that judges had varied in certain kinds of cases, overall the picture was one of health and a judicial system structured to be self-correcting.
“Even if critics believe that existing data demonstrate a problem in the system, it seems appropriate to wait before recommending dramatic legislative action,” Cassell said. “ . . . Of particular importance is the ability of appellate courts . . . to clarify important aspects of the new sentencing regime.” He especially criticized the government’s proposal to promote topless guidelines, stating they “would run the risk of disrupting the entire federal criminal justice system.”
Topless guidelines would rely on constitutionally questionable grounds, whose foundations “have been so substantially eroded that it no longer remains good law,” Cassell said. Calling them a “gimmick,” he warned Congress against them, predicting that should Congress adopt them and they are subsequently declared unconstitutional, the decision would send a “shockwave” through a sentencing system still reeling from the Booker opinion, implicating tens of thousands of sentencing decisions.
Steps for improvement
Cassell, who chairs the federal judiciary’s Criminal Law Committee, offered a menu of possible reforms for Congress to improve sentencing. They included:
- Reviewing the consistency of the government’s use of substantial assistance departures, noting the “radical inconsistency with how prosecutors handle these motions from district to district.”
- Modifying unjustified mandatory minimums and particularly the irrational “stacking” of sentences mandated by 18 U.S.C. § 924C. Cassell found himself forced to sentence Weldon Angelos, a 24-year-old first offender, to a 55-year sentence because he possessed a firearm during three marijuana sales. (See Winter 2004 FAMMGram, page 10.) The sentence, Judge Cassell pointed out, exceeded that required for a variety of violent crimes.
- Reducing the crack/powder disparity to improve the rationality of the system and reduce perceived and actual racial disparity in federal sentencing.
- Restoring the Bureau of Prison’s authority to use their discretion in selecting the length of time an offender may spend in a halfway house before returning to the community.
Attorney James Felman, former co-chair of the Sentencing Commission’s Practitioners’ Advisory Group, presented a compelling argument that the post-Booker statistics demonstrate a system in status quo, not chaos, and urged Congress to avoid radical changes.
Felman pointed out that the Supreme Court has agreed to review a case concerning a guideline scheme from California that could further the courts’ understanding of the extent to which judges can and should be bound by sentencing systems. Felman said the Supreme Court in Cunningham v. California, would clarify some of the uncertainty regarding the developing constitutional limits in this area. He urged Congress to let the courts do their job: test and clarify sentencing law.
Felman also warned that changing the standard of appellate review could be dangerous. Right now, judges must review sentences for “reasonableness.” One proposal would allow appeals courts to look at sentencing decisions “de novo.” This standard would essentially ignore the findings of the sentencing judge, who is the only judge in the process who “actually see[s] the human being who is going to be punished.” Traditionally, the sentencing judge is considered in the best position to evaluate the appropriateness of a sentence because he has the facts, the law, and the person before him or her.