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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
“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)
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
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