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May 2005

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This article is in the news archives --- for current news go to the Third Branch News.


Drug Bill Would Make Sentencing Guidelines Mandatory

A House bill now being considered in Congress to amend the Controlled Substances Act would, in effect, convert some advisory sentencing guidelines into mandatory minimum sentences. The Judicial Conference has written to House Judiciary Committee Chairman, Representative F. James Sensenbrenner (R-WI) expressing its concerns regarding these sentencing provisions. Believing the legislation also may be a reaction to the Supreme Court’s recent Booker decision that left the U.S. Sentencing Guidelines advisory in nature, the Conference is urging Congress to make no immediate legislative response to the decision. By creating mandatory minimums, Congress would effectively negate the current advisory nature of the guidelines.

As chair of the Judicial Conference Criminal Law Committee, Judge Sim Lake, wrote to Sensenbrenner regarding provisions of H.R. 1528, the “Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005.” The bill has been approved by the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security and awaits mark-up by the full Judiciary Committee.

“The Judicial Conference has long opposed mandatory minimum sentences,” Lake wrote. “Since passage of the Sentencing Reform Act, the Conference has expressed concern that mandatory minimum sentences subvert the sentencing scheme of the Sentencing Reform Act.”

Lake noted that provisions of H.R. 1528 would essentially convert the floors of the now-advisory guideline ranges into mandatory minimum sentences. The provisions, he said, would “preclude judges from considering 36 factors concerning the history and characteristics of defendants that judges have historically regarded as appropriate in making sentencing decisions.” The new legislation would only allow consideration of those factors as a basis for increasing a sentence from the bottom of the guideline range to a point within or above the range.

“As a practical matter,” wrote Lake, sentences below the guideline range “would be available only if the government filed a substantial assistance motion, or pursuant to an Attorney General-approved early disposition (or fast-track) program.”

The provisions also would eliminate from a judge’s sentencing any consideration of the defendant’s need for educational or vocational training, medical care, or other correctional treatment.

Several sections of H.R. 1528 would expand the use of mandatory minimum sentences by creating new penalties, increasing existing penalties, expanding the scope of offenses that expose defendants to such sentences, and creating new offenses with mandatory minimum sentences.

“We therefore urge the Judiciary Committee to delete these provisions from the bill,” he wrote.

Other provisions either directly amend the sentencing guidelines or impose specific directions upon the U.S. Sentencing Commission (USSC).

Instead, the Judicial Conference recommends that these provisions be revised to direct the USSC to study the amendment of specified guidelines. The Conference has historically opposed direct congressional amendment of the sentencing guidelines because the USSC is best suited to develop and refine such guidelines.

Finally, Lake warned that provisions of H.R. 1528 would diminish the availability of the statutory safety valve provision, enacted by Congress to ameliorate some of the harshest results of mandatory minimums. The safety valve allows judges to apply the sentencing guidelines instead of the statutory minimum sentences in cases of certain first-time, non-violent drug offenders.

Judge Lake’s letter can be read in its entirety at www.uscourts.gov/ttb/may05ttb/lake.pdf