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The Guidelines Go Under, As Predicted

The Sentencing Commission has published statistics showing that, for the first time ever, a majority of sentences are now outside the Guidelines range.  No one will be surprised to learn that virtually all the departures are downward, i.e., departures favoring the criminal.

As I pointed out in my article in the Federalist Society's magazine Engage three years ago, if the Sentencing Commission's "advisory" Guidelines are going to be ignored a majority of the time, we might as well just get rid of them. The article was titled, "The Slow, Sad Swoon of the Sentencing Suggestions".  In particular, I wrote (emphasis added):

[T]he public should be told the truth about what, under the present system, the seductive phrase judicial discretion actually means--namely, a one-way street to lower sentences. The most revealing measure of the exercise of so-called discretion is the incidence and direction of departures. As noted previously, a large minority of all sentencing is already outside the range, and the day is soon coming when it will be a majority

And sure enough.

The Guidelines are a charade, and the Commission, though not without some top-notch members, has become more-or-less a front man for the defense bar.  The public has better uses for the millions we're wasting on it.


I tend to agree, Bill. The problem, of course, is that we have now built a tremendous bureaucracy around the Guidelines. So, the Guidelines/USSC will never go away. I'd love to know how much money we spend a year on the USSC. Add that together with all of the money (and time) wasted on calculating the Guidelines range, having sentencing hearings that last days because of battles over Guidelines enhancements, frivolous (yet time-consuming) reasonableness of sentencing appeals, and we are wasting a ton of money on something that doesn't matter in more than 50% of the cases.

May 7 @ 7:19,

Since you are signing in through Yahoo, which does not provide a recognizable user name, could we trouble you to "sign" your comments with a recognizable "handle" in the text? It need not be your real name. It just helps the discussion to see which comments are from the same person. Thanks.

Do you think you would approve of the pattern of sentencing outcomes if SCOTUS said tomorrow that sentencing judges need not even consider the guidelines anymore? Do you think most AUSAs would like that?

"Do you think you would approve of the pattern of sentencing outcomes if SCOTUS said tomorrow that sentencing judges need not even consider the guidelines anymore?"

I think that's pretty much what we have now. The guidelines were, after all, largely, although not in every particular, written to replicate what judges were doing up to the time of their adoption.

"Do you think most AUSAs would like that?"

I think they're already living with it -- what with the wide latitude given by Booker, Gall and Kimbrough -- but would prefer a system more geared toward determinate sentencing, like the one that existed in the pre-Booker days (when, I might add, the federal prison population was less than it is now).

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