Monday, June 14, 2010

New Proposed Sentencing Guidelines

The New Federal Sentencing guidelines will give more latitude to Federal judges at sentencing.  Currently, It is not within the purview of the guidelines to consider to consider the offender’s personal history and personal characteristics.

The new rules will also allow for judges to send non-violent drug offenders to drug or alcohol abuse treatment centers instead of prison.

The Commission studying the guidelines received a lot of feedback from all sectors of the Federal criminal justice system highlighting “a great need for alternatives to incarceration” according to William K. Sessions, the Commission’s chairman.

The Commission now seems to be looking at the individual offender away from the assembly line approach

There are lots of practical and technical reasons why the proposed new federal guideline amendments released today by the US Sentencing Commission  (USSC) are quite important and potentially very consequential for the day-to-day work of litigants and judges in the federal sentencing system.

These amendments are really the first set of changes to the US Sentencing Guidelines that fully and formally reflect the import and impact of the Supreme Court's decision in Booker.  It is astounding that it has taken the USSC more than five years to fully deal with Booker as the law of the land, but it is also quite significant and telling that the Commission is now making sure that the guidelines expressly take account of post-Booker realities.

Of even greater importance, virtually all of the Commission-driven proposed amendments are intended to (and are likely to) reduce applicable sentencing ranges and the overall severity of the guidelines.  Through the first 20+ years of guideline sentencing, the vast majority of proposed amendments have called for increases in applicable sentencing ranges and the overall severity of the guidelines.  This set of amendments thus reflects a quite tangible (and perhaps enduring) change in focus and direction of the Commission's on-going guideline-revision work.

Another point also prompts an important practical and technical issue: will the US Sentencing Commission later this year vote to make any of its new guideline-reducing amendments retroactive for the benefit of already-sentenced defendants now in federal prison?

If a guideline amendment reduces sentences and the Commission votes to make that amendment retroactive, the guidelines have a policy statement (U.S.S.G. § 1B1.10) that discusses the scope, limitations, and authority for granting sentence reductions. That policy statement also includes a list of all the guideline amendments that have been made retroactive. A prisoner who wants a sentence reduction based on a retroactive guideline must file a motion under 18 U.S.C. §3582(c)(2). The motion is filed in the federal court where the defendant was sentenced. The court may or may not appoint a lawyer to help the defendant with the motion. The prosecution is given a chance to oppose the defendant’s request for a sentence reduction. Then, the court makes the final decision to grant or deny a sentence reduction. The court does not have to give the defendant a sentence reduction – rather, the court has to consider the guidelines’ purposes of sentencing and any relevant policy statements about the amendment and sentence reductions. For example, the policy statement at § 1B1.10 bans the courts from reducing a sentence unless the Commission has made the amendment that allows for that reduction retroactive. If the court denies the defendant’s motion for a sentence reduction, the defendant may appeal that decision. If the court grants the defendant’s motion, the defendant’s sentence will be adjusted accordingly.

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