Threats to Non-Mandatory Federal Sentencing Guidelines

Both NPR and the ACLU have recently ran news stories of concern to many federal practitioners: the Republican party's movement in Congress to return to mandatory federal sentencing schemes. In 2005, the United States Supreme Court held that mandatory federal guidelines were unconstitutional in United States v. Booker. Since that time, federal judges have been able to consider more than just numbers in a chart to determine an appropriate sentence. However, some critics have said that the post-Booker sentencing universe leads to disparity in sentencing. At a recent hearing, Rep. James Sensenbrenner, a Republican from Wisconsin, stated:

"A criminal committing a federal crime should receive similar punishment regardless of whether the crime was committed in Richmond, Va., or Richmond, Calif., and that's why I am deeply concerned about what's happening to federal sentencing."

On the other hand, proponents of the advisory guideline sentencing guidelines can point to issues as the financially crippling and soaring incarceration rates, the reduction in crime rates overall, and the fact that sentencing is now subject to more "fact based" inquiry as reasons to keep the advisory system intact. The ACLU and the American Constitution Society held a panel discussion on the issue that can be watched here.