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Abolish the Sentencing Commission and Restore the Rule of Law

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Fifteen years ago, the U.S. Sentencing Commission was the 900 pound gorilla of federal sentencing law. It wrote binding rules, followed by district courts more than 70 percent of the time, all on an annual budget of roughly $8.8 million. Today, the Commission is more like a chimpanzee. It writes "advisory only" sentencing suggestions, followed by the courts about half the time and falling, at roughly twice the annual cost. If, in private enterprise, a business created a diluted product with a shrinking consumer base and continuously rising production costs, how long would that business survive? How long should it survive?
The Commission was created in the 1980's to usher into federal sentencing something that had never been there before -- the rule of law. Its job was to change sentencing from a luck-of-the-draw lottery and make it into a more nearly transparent, consistent and accountable process. Though imperfect, as every reform is, determinate sentencing largely succeeded.

A little more than six years ago, in United States v. Booker, the Supreme Court, in a disastrous 5-4 split, did away with determinate sentencing and, for practical purposes, restored the lottery, which is what we have now.

It's become so bad that even the New York Times has, in its way, complained. 

The Sentencing Commission could have acted quickly in the aftermath of Booker. Indeed, the Court all but invited it to do so. Instead, it has cheerfully acquiesced in the destruction of the principal purpose for which Congress created it. It has done so while spending additional millions of taxpayer funding on cross-country "fact-finding" junkets, and recommending a relaxation of crack penalties so radical that the most liberal Congress in decades turned it aside in favor of a more sensible, Reagan-era proposal.

The time has come for Congress to save the taxpayers their money, put the Commission out of its misery, and -- by far most important -- restore the rule of law in sentencing. My article in the current edition of the Federal Sentencing Reporter is here, with the whole sad, sorry story -- and prescriptions for getting federal sentencing back on sound footing.

5 Comments

It's true. The Sentencing Commission's raison d'etre is gone.

“A little more than six years ago, in "United States v. Booker", the Supreme Court, in a disastrous 5-4 split, did away with determinate sentencing…”

Does anyone believe that Clarence Thomas and Antonin Scalia would now vote to overturn "United States v. Booker"?

Do you have any views on whether determinate sentencing is preferable to luck-of-the-draw sentencing? If so, what are they, and what is the reasoning behind them?

Do you have any experience as a practicioner in federal sentencing? If so, are there any lessons from that experience, relevant to the subject matter of this entry, that you think would add to the discussion?

I have read United States v. Booker, and I believe that it was a sloppy and judicially activist decision that must be overturned.

I am fully in favor of determinate sentencing due to its comprehensible and non-arbitrary nature.

In any event, it is improper for the federal courts to second guess congressional judgment on this matter.

Thank you for your substantive response.

"I am fully in favor of determinate sentencing due to its comprehensible and non-arbitrary nature."

Then we are in agreement.

"In any event, it is improper for the federal courts to second guess congressional judgment on this matter."

And even it were proper, the actual second guessing that got done was grossly incorrect, as Justice Stevens shows in his dissent (with three other Justices) from the remedial portion of Booker. As the dissent notes, Congress considered and deliberately rejected the advisory system the majority created.

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