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Vol. 35, Number 11—November 2003 Sentencing Debate Continues "The debate over the goals of sentencing is a difficult one," Justice Anthony M. Kennedy told members of the American Bar Association at their annual meeting in August, "but we should not cease to conduct it." The most recent voice heard was that of the General Accounting Office, which earlier this month issued a report on departures from the U.S. Sentencing Guidelines. While the GAO found some variations from court to court, it concluded that "Finally, it is important to note the departure differences among circuits and districts that we found may not, in and of themselves, indicate unwarranted sentencing departures or misapplications of the guidelines. Empirical data on all factors that could influence sentencing were not available, and so an analysis that could fully explain why sentences varied was not possible." In a letter published as part of the GAO report, Judge Simeon Lake III (S.D. Tex.), chair of the Judicial Conference Criminal Law Committee, said, "The results of the GAO study verify that the percentage of downward departures made over the objection of the government is very low. Moreover, less than one half of one percent of these cases between 1999-2001 have been appealed by the government." In his letter, Lake went on to state that the current way of reporting sentencing data "has resulted in confusion, misinformation, and misuse by some who mistakenly infer that all 'other downward' departures are attributable to judges. This misinterpretation of the facts may have prompted the enactment of the PROTECT Act." At its September 2003 session, the Judicial Conference voted to endorse legislation that would repeal provisions in the PROTECT Act that limit the ability of judges to depart from the Sentencing Guidelines and also require reports to Congress when any judge does depart. (See October 2003 The Third Branch.) Also, on October 8, 2003, the U.S. Sentencing Commission (USSC) voted to implement a package of amendments designed to reduce the frequency with which judges may sentence offenders below the Guidelines. The PROTECT Act required the USSC to prepare this report. (See October 2003 The Third Branch or visit www.ussc.gov). Meanwhile, the ABA has acted on Kennedy's call to re-examine a system in which "our resources are misspent, our punishments too severe, our sentences too long." ABA President Dennis W. Archer has formed a commission to study and make recommendations on:
Chief Judge Deanell R. Tacha (10th Cir.), chair of the Judicial Conference Committee on the Judicial Branch, is expected to testify at the Commission's first public hearing this month. The Commission's report and recommendations will be considered by the ABA House of Delegates at its annual meeting in August 2004. Also participating in the dialogue will be the Ninth Circuit, which is forming its own task force to study reform of the sentencing guidelines. The task force will include federal judges, prosecutors, defense lawyers, probation and pretrial services officers, legal researchers, penal system representatives, and others. In a speech to the Northern California chapter of the Federal Bar Association, Ninth Circuit Chief Judge Mary Schroeder said, "What we want to do is harness the very best thinking on sentencing, including what is going on in some of the states that are very advanced in using guidelines sentencing." The task force will coordinate with a similar project of the American Law Institute. |
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