21 November 2005

Mandatory Minimums Alert.

The Booker case in the United State Supreme Court through out the much hated sentencing guidelines in the federal courts (well, reduced them to mere advisory status anyway), because they had judges rather than juries deciding facts that fixed maximum sentences. Now, according to the Sentencing Law and Policy Blog, there is a great deal of talk about a bill, probably a laundry list of mandatory minimum sentences, being introduced to replace the sentencing guidelines.

Mandatory minimum have been a great failure in the federal sentencing system, and certainly hope that Congress will no go down this road. Among the options being considered is:

The substance of the Booker fix in section 12 of H.R. 1528 is anything but subtle. The bill essentially forbids consideration of three dozen potentially mitigating factors as a basis for sentencing below the applicable guideline range, and it imposes significant procedural restrictions on any possible remaining grounds for downward departure (except based on a prosecutor's motion for substantial assistance or for fast-track treatment).

A related idea is the "Bowman Proposal":

The essence of the proposal is a legislative fix to essentially take the top off the existing guideline ranges -- i.e. "amend the sentencing ranges on the Chapter 5 Sentencing Table to increase the top of each guideline range to the statutory maximum of the offense(s) of conviction." The idea is that then guideline calculations technically become adjustments to only minimums and have no impact on applicable maximums. The current buzz is that this fix is the leading candidate for congressional action in response to Blakely. . . . "the version now receiving most consideration would (a) be sunsetted, and (b) include a right of appellate review on an abuse of discretion standard for any sentence above the guideline minimum, and that one consideration in the abuse of discretion determination would be whether the sentence was 6 months or 25% greater than the minimum."

Given that mandatory minimums were always the main problem with the sentencing guidelines, rather than caps on maximum sentences, this is not a good development either.

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