Sentencing Commission Urged to Give Judges More Flexibility

By Kari Lydersen
Washington Post Staff Writer
Friday, September 11, 2009

CHICAGO, Sept. 10 -- Advocates for added flexibility in criminal sentencing took their appeal to the U.S. Sentencing Commission, which heard testimony here Wednesday and Thursday as part of the agency's first nationwide series of public hearings since federal sentencing guidelines took effect 22 years ago.

Criminal justice reform proponents have long pushed the federal government to back alternatives to incarceration and more flexible sentencing for drug, child pornography and other convictions. While past critics of federal guidelines criticized them for removing judges' discretion, others in law enforcement and advocacy want to use the guidelines to promote alternative sentencing. They said they think the commission is increasingly receptive to that idea.

Kentucky Justice and Public Safety Cabinet Secretary J. Michael Brown, who called the commission "the NASA of sentencing stuff," lamented states passing strict laws targeting "the drug du jour" only to end up "with prison systems bursting at the seams with people who aren't the most dangerous to society."

David Kennedy, director of the Center for Crime Prevention and Control at John Jay College of Criminal Justice, urged the commission to promote new strategies for dealing with gangs, including an approach wherein judges and prosecutors are more lenient if gangs cease their activities, but "bank" charges for later punishment if crime continues. Kennedy sees his invitation to testify as part of a new direction for the commission.

"The Sentencing Commission appears to me to be thinking about its role more broadly and is interested in different points of view," he said.

Kennedy said judges are "enormously influenced" by the guidelines, even though they are not mandates.

Judges and lawyers testifying at the hearing bemoaned the fact that sentences often differ considerably from the federal guidelines. Judge Jeffrey S. Sutton of the U.S. Court of Appeals for the 6th Circuit said federal guidelines might recommend a 70-month prison sentence for child pornography, "but you get a one-day sentence. To me that's disrespecting the commission."

The guidelines have their origin in mandatory minimum prison terms that were meant to end sentencing disparities among districts. A 2005 Supreme Court decision relegated them to recommendations.

Now the commission, an independent, bipartisan agency, is holding seven hearings throughout the country to gauge the impact of the guidelines. Alternative sentencing, cocaine and child pornography policies, and the guidelines' relevance to human rights offenses such as torture and war crimes were among its priorities this year.

"This is a time to hear from individuals who don't contact us in Washington but who definitely have concerns -- law enforcement, victims rights groups, judges, professors, parole officers," said commission Chairman Ricardo H. Hinojosa, a federal court judge in Texas. He said the hearings aim to draw out regional differences in opinions or priorities. "By the border, there might be more immigration, drug and firearm cases. In other parts of the country, there might be more fraud or child pornography."

Since February, hearings have also been held in Atlanta, New York and Palo Alto, Calif., and they are scheduled for Denver, Austin and Phoenix through January 2010. In March the commission will hold public hearings in Washington on proposed amendments to the guidelines, as it does every year.

When the commission makes recommendations to change the guidelines, they become law within 180 days if Congress does not act on them. More than 700 amendments have passed this way; only one recommendation, a 1995 measure that would have equalized penalties for crack and powder cocaine, was rejected.

The federal sentencing guidelines are distinct from mandatory minimum sentencing laws, including the controversial law governing sentences for crack cocaine possession.

Patrick J. Fitzgerald, U.S. attorney for the Northern District of Illinois, said the Supreme Court decision making the guidelines advisory has greatly changed their impact. Prosecutors often decide to press charges that trigger mandatory minimum sentences because they fear judges will otherwise give lighter sentences than the guidelines indicate, he said. And defense attorneys are less inclined to work out agreements with prosecutors, preferring to appeal directly to judges for leniency, Fitzgerald said, adding that the Supreme Court decision has resulted in lighter punishments for white-collar criminals.

"I venture to say that [the decision] has reintroduced into federal sentencing both substantial district-to-district variations and substantial judge-to-judge variations," he said.

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