14 February 2006

The Sentencing Guidelines Are Too Harsh

The year 2005 is notable for being the year that sentencing guidelines were no longer mandatory in the federal criminal justice system. What have we learned from this experience? Professor Frank Bowman offered these observations:

[C]onsider four facts about 2005. First, in 2005, the majority of all federal judges were appointed by Republican presidents and the United States Department of Justice was in the hands of a Republican Administration. Second, in 2005, prosecutors initiated sentences below the guideline range twice as often as did judges. Third, in 2005, prosecutors as well as judges sought sentences below the guideline range more often than they had in 2004. Fourth, during 2005, in an advisory sentencing guidelines system operated by a predominantly Republican judiciary and a markedly conservative Republican Justice Department, almost forty percent of all sentences were outside the guideline range and the ratio of sentences below the applicable guideline range to those above it was roughly 22-to-1.

The United States Sentencing Guidelines, while in theory, a potentially worthwhile reform, ended up as a draconian failure. They need to be scraped in their entirety and we need to insert more reasonable judgments into the sentencing federal sentencing structure to replace them (and mandatory minimum sentences, which are also a draconian legacy of a failed war on drugs).

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