Vol. 37, Number 7—July 2005

Bipartisan Backing
For Sentencing Reform

The federal sentencing system needs reform and simplification, current and former senior Justice Department officials said last month.

Attorney General Alberto Gonzales told participants at a June National Center for Victims of Crime conference that the federal sentencing system works. It works best, however, when judges have some discretion; ". . .discretion that is bounded by mandatory sentencing guidelines created through the legislative process," said Gonzales. Earlier in the month, the Sentencing Initiative, undertaken by the Constitution Project and co-chaired by Edwin Meese III, Attorney General under President Reagan, and Philip Heymann, Deputy Attorney General under President Clinton, backed a sentencing system that also retained the flexibility to account for relevant differences among particular offenses and offenders.

Among its findings, the Initiative determined that the current federal guidelines are overly complex and rigid, and place excessive emphasis on factors such as monetary loss and drug quantity, and not enough on the defendant's role in the criminal conduct.

"This rigidity results from the combination of a complex set of guideline rules and significant legal strictures on judicial departures," the Initiative's bipartisan committee stated in its guiding principles for the reform of federal sentencing guidelines. "It is exacerbated by the interaction of the guidelines with mandatory minimum sentences for some offenses."

In his remarks to the conference, Gonzales said he has an open mind about how to best restore fairness and consistency in sentencing. But while numerous legislative proposals have been suggested, he believes the one that would preserve the protections and principles of the Sentencing Reform Act is the construction of a minimum guideline system. Under such a system, the sentencing court would be bound by the guidelines minimum, similar to the way it was before the Supreme Court decision in U.S. v. Booker. The guidelines maximum, however, would remain advisory, and the court would be bound to consider it, but not to adhere to it.

"The advantages of a minimum guidelines system are many," Gonzales said. "It would preserve the traditional division of responsibility between judges and juries in criminal cases and retain the important function of the U.S. Sentencing Commission in providing guidelines to the courts regarding sentencing. It would also allow judges some flexibility for extraordinary cases." He also noted that a minimum guidelines system would be fully consistent with the Sixth Amendment, as interpreted by the Supreme Court.

In March 2005, the Judicial Conference stated that "the federal Judiciary is committed to a sentencing guideline system that is fair, workable, transparent, predictable and flexible." It also said it would oppose legislation that would respond to the Supreme Court's decision in Booker by raising directly the upper limit of each sentencing guideline range or expand the use of mandatory minimum sentences.

Gonzales pledged the resources of the Department of Justice to work with Congress, the Judiciary, the Sentencing Commission and other organizations to reform the sentencing system. "I have come to the conclusion that the advisory guidelines system we currently have can and must be improved," he said.

The Attorney General's entire speech can be found at www.usdoj.gov/ag/speeches/2005/06212005victimsofcrime.htm.