16 October 2009

U.S. Sentencing Commission in Denver Oct 20-21

The U.S. Sentencing Commission writes the sentencing guidelines that used to be mandatory in federal criminal sentencing, and now are merely advisory due to U.S. Supreme Court intervention. They set the guidelines after holding hearings like the one planned for Denver, Colorado this month. The Official Notice of Public Hearing states:


October 20 - 21, 2009

Pursuant to Rule 3.4 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing is scheduled for October 20-21, 2009 in Denver, Colorado. On October 20, the public hearing will commence at 8:30 a.m. and will conclude at approximately 4:30 p.m. The public hearing will reconvene on October 21 at 9:00 a.m. and will conclude at approximately 11:45 a.m.

The public hearing will be held in Mineral Hall (Rooms F & G, 3rd floor) at the Hyatt Regency Denver, 650 15th Street, Denver, Colorado, 80202.

As detailed in the agenda, the purpose of the October 20-21, 2009, public hearing is for the Commission to solicit information from invited witnesses regarding federal sentencing policy.

The lengthier agenda makes clear that most of the testimony will be invited and pre-scripted:

October 20, 2009
8:30 a.m. - 4:30 p.m.

Opening Remarks (8:30 a.m.)

Panel I. View from the Appellate Bench (8:45 a.m. - 10:00 a.m.)

Honorable James B. Loken
Chief Circuit Judge
Eighth Circuit Court of Appeals

Honorable Deanell Reece Tacha
Circuit Judge
Tenth Circuit Court of Appeals

Honorable Harris Hartz
Circuit Judge
Tenth Circuit Court of Appeals

Panel II. View from the District Court Bench (10:15 a.m. - 11:30 a.m.)

Honorable Alan B. Johnson (invited)
District Judge
District of Wyoming

Honorable John Thomas Marten
District Judge
District of Kansas

Honorable John L. Kane
Senior District Judge
District of Colorado

Panel III. View from the Probation Office (11:45 a.m. - 12:15 p.m.)

Kevin Lowry
Chief United States Probation Officer
District of Minnesota

Ronald Schweer
Chief United States Probation Officer
District of Kansas


Panel IV. View from the Executive Branch (1:45 p.m. - 3:00 p.m.)

David M. Gaouette
United States Attorney
District of Colorado

B. Todd Jones
United States Attorney
District of Minnesota

Panel V. Community Impact (3:15 p.m. - 4:30 p.m.)

Diane Humetewa
Principal, Public Advocacy
Squire, Sanders & Dempsey L.L.P.
Phoenix, Arizona

Paul Cassell
Ronald N. Boyce Presidential Professor of Criminal Law
S.J. Quinney College of Law, University of Utah
Salt Lake City, Utah

Ernie Allen
President and Chief Executive Officer
National Center for Missing and Exploited Children
Washington, D.C.

October 21, 2009
9:00 a.m. - 11:45 a.m.

Reconvene & Opening Remarks (9:00 a.m.)

Panel VI. View from the District Court Bench (9:00 a.m. - 10:15 a.m.)

Honorable Robert W. Pratt
Chief District Judge
Southern District of Iowa

Honorable Fernando Gaitan, Jr.
Chief District Judge
Western District of Missouri

Honorable Joan Ericksen
District Judge
District of Minnesota

Panel VII. View from the Defense Bar (10:30 a.m. - 11:45 a.m.)

Raymond P. Moore
Federal Public Defender
Districts of Colorado and Wyoming

Nick Drees
Federal Public Defender
Northern and Southern Districts of Iowa

Thomas Telthorst
Kansas City, Kansas

Adjourn (11:45 a.m.)

In other words, it is a public hearing in the sense that the public is free to listen to interesting expert testimony presented there, rather than a public hearing, in the sense of a hearing at which public input is genuinely solicited.

Judge Kane (now on senior judge status) has been one of the most outspoken critics of the way the Sentencing Guidelines work, and his testimony on the late morning of October 20th is likely to be on of the highlights of the hearing.


When people talk about concepts like the banality of evil, they are talking about institutions like the U.S. Sentencing Guidelines system.

While the concept of the Commission seems benign and scientific, in practice, the first set of guidelines, together with statutory mandatory minimum sentences, that were being enacted at the same time, were set in a way that led to insanely long sentences for drug crimes, particularly those associated with crack cocaine, and to much longer sentences for a variety of other offenses, such as white collar crimes.

Judges were disempowered at the expense of prosecutors who were encouraged to overcharge cases. Once set, the guidelines are, in practice, difficult to amend. Even provisions like the crack guidelines that have been widely condemned almost since their inception, remain on the books.

On the other hand, the Sentencing Guidelines have tended to be more lenient with regard to serious violent crimes, which often end up in federal court because they arise on Indian Reservations, than comparable state law sentences.

The guidelines embody, almost in their entirety, the screwed up priorities of the federal criminal justice system.

The guidelines also have profound procedural flaws. While the guidelines do not permit the maximum sentence of the crime of conviction to be exceeded, the sentence for a crime doesn't have to be based upon the conduct giving rise to that conviction that was established at trial. Judges may consider conduct a jury acquitted a defendant of at trial, and alleged criminal conduct by a defendant that was never charged. Determinations that aquitted or uncharged crimes were committed do not have to be made based upon the evidentiary standards that apply at even a civil trial to the judge. This makes a mockery of the federal constitutional right to a jury trial and any common sense standard of justice.

Some non-binding state sentencing guidelines have had much greater success. But, the federal system is sentencing guidelines is arguably one of the most dismal failures in modern criminal sentencing practice, and remain a strong force in federal sentencing because guideline sentences must still be calculated and are presumed reasonable, so appellate relief for a guideline sentence is just short of impossible to obtain. The best thing that the U.S. Sentencing Commission could do would be to immediately scrap all of the guidelines and start over from scratch, even though there would be no guidelines for an interim period.

I'd eat my hat if that actually happened, but that is really what is called for at this point in time, because the foundation that the existing guidelines provide is fundamentally flawed.

1 comment:

Anonymous said...

Excellent piece. The Sentencing Commission and the entire DOJ are wonderful examples of the banality of evil. Hanna Arednt would have a field day with these people.