Rethinking Sentencing

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In August 2003, after U.S. Supreme Court Justice Anthony Kennedy’s challenge to the Amer­ican Bar Association to start a new national dialogue on sentencing and prison systems, then-President Dennis W. Archer appointed the ABA Justice Kennedy Commission. It examined what Kennedy termed as the “inadequacies–and the injustices–in our prison and correctional systems.”

The commission members did the yeoman’s task of cataloging some of the shortcomings of the federal sentencing guidelines, which have been widely criticized for being too complex and mechanistic. Their conclusions were that the guidelines are too rigid, that they unnecessarily restrict judicial discretion, and that they do nothing to encourage alternatives to incarceration.

The Kennedy commission was prescient in its call for Congress to revisit the federal sentencing guidelines with an eye toward learning from the states’ experiences with guideline systems. Now, in Blakely v. Washington and U.S. v. Booker, the Supreme Court may well have provided Con­gress with this unique opportunity.

In 2000, Ralph Howard Blakely Jr. pleaded guilty to the crime of second-degree kidnapping involving a firearm, an offense that carries a sentence of 49 to 53 months under Washington state law. But the sentencing judge gave Blakely a term of 90 months, citing a Washington statute that permitted him to determine that Blakely had acted with “deliberate cruelty.” Thus began one of the most important and far-reaching debates in criminal law since the Miranda v. Arizona ruling in 1966.

The Supreme Court’s decision in Blakely v. Washington struck down the provisions of Washington state’s sentencing guideline system, which permitted a judge instead of a jury to determine aggravating factors that increase a defendant’s sentence. It also called into question the constitutionality of federal sentencing guidelines, which are similar to Washington state’s system, thereby sending shock waves throughout the criminal justice system.

The court was ultimately compelled to address the federal sentencing guidelines when the Justice Department brought U.S. v. Booker for expedited consideration. In finding the federal guidelines unconstitutional, the court ruled that judges should consider the guideline ranges but are permitted to tailor sentences in light of other factors, subject to judicial review for reasonableness.

Go For The Quick Fix?

Together, Booker and Blakely present a special op­por­tunity for the public and Congress to revisit our federal sentencing policies and goals. Some in Congress have called for a quick fix to respond to the sentencing “crisis” created by the court, claiming that making the guidelines advisory rather than mandatory would bring us back to the pre-guideline days of unbridled judicial discretion. Others have argued that the court’s remedy makes good sense, particularly when coupled with appellate review of sentences under the court’s reasonableness standard.

The ABA is keenly interested in the outcome of this debate and is working to get the organized bar focused on re-examining some of the fundamental issues that arise daily in our criminal justice system–including problems that in many cases have been present for decades. In fact, our involvement in this debate and our efforts to improve the administration of sentencing and correctional systems stretch back more than 25 years.

For example, the ABA Standards for Criminal Justice have long recognized that sentencing should be considered an integral part of the criminal justice system, not just the last phase. The standards support the implementation of sentencing guidelines as a constructive means for guiding judicial discretion and reducing unwarranted sentencing disparity. We envision a guidelines system that combines certainty and fairness in meeting the purposes of sentencing yet maintains enough flexibility to permit individualized justice consistent with our nation’s traditions. The proper function of sentencing guidelines is to shape and structure judicial discretion, not to replace it with mechanical rules.

As we have in the past, the ABA looks forward to assisting Congress during this critical examination of our criminal justice system.

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