Wednesday, November 18, 2015

Guideline sentence = loss

"A guideline sentence is a loss." One of the Defenders testified to this (paraphrased) before the Cardone Commission this week. There are always exceptions. But the general principle is spot on -- if we cannot do better than the guideline at sentencing, we probably lost.

Over half of the 75,000-plus federal sentences last year were below the calculated guideline range, according to the Sentencing Commission's Overview of Federal Criminal Cases: FY 2014. Some were cooperation or fast track cases; at least 40% are not.

As for the trial penalty: almost half of the defendants who lost a trial still received a below-guideline sentence.

Immigration and drug cases each took about 30%  of the sentencing real estate. Over 50% of people sentenced in federal court last year were Hispanic. Yet Hispanics account for only about 17% of the United States population.

Crack cocaine is still draws the harshest drug penalties, with an average sentence of 93 months. This has decreased over the last few years, but the racial disparity persists. For the most harshly penalized drug, 82.9% of those convicted were black.

More numbers: almost 20% of drug cases involved a mitigating role adjustment. Only 5% of crack cocaine cases received an adjustment.

The guidelines are flawed in many ways, from  inception. But now courts are free to disagree with the guidelines as a matter of policy, independent from the individual case. Many guidelines are not empirically based (2D1.1 drug valuation) or antiquated (2G2.2(b)(6), adding two levels for using a computer to possess child porn). There are many reasons that a guideline sentence does not fit within the 3553(a) factors.

The Court has said that "the Guidelines should be the starting point and the initial benchmark." But the starting point should not also be the ending point.

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