Policy Disagreements With The Guidelines

This is a great post from Doug Berman over at Sentencing Law and Policy. As a matter of fact he has several up this week. It is important that we watch what happens with Sentencing Commission Guidelines especially as we start our own commission here.

Most critically, as previously highlighted here, the Government's brief (Gall) repeatedly explains that district courts can vary from the Guidelines "based solely on policy disagreements with the Guidelines." Gov't Brief in Gall at 36; accord id. at 37 n.11 ("sentencing courts may impose non-Guidelines sentences based on policy disagreements with the Sentencing Commission"); see also id. at 32 ("variances need not be justified solely on factual grounds but may ... be based on reasoned policy considerations").

In light of this important concession, I decided to begin a list of "reasoned policy considerations" for disagreeing with certain Guidelines. Notably, as highlighted below, some policy reasons for varying from the Guidelines are suggested by the Commission's own research. For now, I have started this list without detailed explanations, though I may annotate this list in future posts (and readers are encouraged to add to the list in the comments).

Policy Reasons for Variances Suggested by the Commission

1. Crack guidelines are much too harsh relative to powder guidelines, especially for low-level offenders

2. Career offender guidelines are too harsh, especially for offenders with relatively minor prior offenses

3. Criminal history category I may overstate the risk of recidivism for "true" first offenders

Policy Reasons for Variances Suggested by Many Others

4. The guidelines unduly emphasize quantities (like loss calculations and drug weights) and ignore true culpability considerations based on a defendant's mental state

5. The guidelines too readily rely on uncharged (and even acquitted) conduct to greatly increase offense levels

6. The guidelines categorize many minor prior offenses as "crimes of violence" to enhance sentences

7. The guidelines fail to encourage alternatives to incarceration, especially for non-violent first offenders

8. The guidelines fail to incorporate relevant personal circumstances, such as mental conditions, prior good works (like military service), family circumstances, drug dependence

9. The guidelines generally fail to give voice and attention to victims' interests or to the interest of other third parties impacted by the crime and punishment

Sentencing Law and Policy