Sentencing Guideline and Mandatory Minimum Fixes

By Jeralyn, Section Booker/Blakely
Posted on Thu Feb 10, 2005 at 05:01:24 AM EST
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In the last post I wrote about today's Congressional hearing on Booker and FanFan and possible fixes to the sentencing guidelines. I also mentioned that next week the U.S. Sentencing Commission will hold a similar hearing and Law Prof Doug Berman of Sentencing Law and Policy will be a witness (pdf).

That got me thinking about the time I was a witness at a Sentencing Commission hearing--in August, 1996--and how much I complained about both the federal sentencing statutes and guidelines. Here is the hearing transcript , my testimony begins at page 60. I told the Commission that our federal sentencing system had become "morally bankrupt." And I submitted a legislative fix--greeted favorably by one Commissioner. The chances of my being asked to speak today, in the Bush era, or speaking that boldly again: probably nil. Here's some of what I said (this is the oral testimony, not the prepared statement, with a few grammatical cleanups.)

As I listen here today to the judges, the defense counsel and the probation officers who have testified, what I'm hearing is we need to find a way to re-empower the Federal judiciary. This system is not working. The system has broken.... it's becoming morally bankrupt.

There is something wrong with a system that unfairly targets minorities, persons of color and women. There is something wrong with a system that allows the use of purchased testimony. There is something wrong with a system that has transferred the power given to judges by the United States Constitution to prosecutors. And we have to do something to fix it.

My purpose in appearing before the Commission was to garner support for a legislative fix to mandatory minimums that I had co-drafted with Boston Attorney Martin Weinberg on behalf of the National Association of Criminal Defense Lawyers. It would have eliminated the requirement that a motion to depart below mandatory minimum sentences be limited to defendants who cooperate with the Government. It would have allowed Courts to depart below mandatory minimums on their own motion, or on motion of the defendant, whereas now these motions have to be initiated by the Government.

One of the things that we have done as part of the legislative work of the National Association of the Criminal Defense lawyers is to draft a proposed piece of legislation that would be an amendment to 18 USC Section 3555 3(E). It has already been endorsed by two members of the Federal judiciary. Judge Hatter from