Monday, July 07, 2008

Taking Apart the Guidelines, Brick by Brick

Looking for freedom from the Guidelines? Then check out Deconstructing the Guidelines, "a special project undertaken by National Federal Defender Sentencing Resource Counsel" featuring papers that "critically examine the history and basis of the most frequently encountered provisions of the U.S. Sentencing Guidelines." Why do such a thing? Because, in the wake of Rita, Gall, and Kimbrough,
[j]udges are now invited to consider arguments that the guideline itself fails properly to reflect § 3553(a) considerations, reflects an unsound judgment, does not treat defendant characteristics in the proper way, or that a different sentence is appropriate regardless. Judges may vary from Guidelines ranges based solely on policy considerations, including disagreements with the Guidelines, and when they do, the courts of appeals may not grant greater factfinding leeway to the Commission than to the district judge. Whatever respect a guideline may deserve depends on whether the Commission acted in the exercise of its characteristic institutional role. This role has two basic components: (1) reliance on empirical evidence of pre-guidelines sentencing practice, and (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field. Notably, not all of the Guidelines are tied to this empirical evidence. When a guideline is not the product of empirical data and national experience, it is not an abuse of discretion to conclude that it fails to achieve the § 3553(a)'s purposes, even in a mine-run case.

(quotation marks, brackets, and cites omitted). Three papers are available thus far, deconstructing the child pornography, career offender, and relevant conduct guidelines.



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