Advice for the U.S. Sentencing Commissioners

Six years after the Supreme Court ruled that federal judges need no longer adhere to the U.S. Sentencing Guidelines, the U.S. Sentencing Commission faces complex challenges including how to keep the guidelines relevant. Several of the commentaries from judges, lawyers, academics, and other sentencing practitioners in the April issue discuss the ongoing concern of sentencing discrepancies depending on which federal judge presides over the case. Others examine the guidelines' loss of credibility or suggest steps the commission can take as it continues to oversee and reform the federal sentencing system.

Editor's Observations

Lots of Advice on Lots of Topics for the New (Post-Booker) U.S. Sentencing Commission
Douglas A. Berman, FSR editor and Robert J. Watkins/Procter & Gamble Professor of Law, the Ohio State University Moritz College of Law

Featured Article

Follow the Evidence: Integrate Risk Assessment into Sentencing
Jordan M. Hyatt, senior research coordinator, Jerry Lee Center of Criminology, University of Pennsylvania; Research Associate, Pennsylvania Commission on Sentencing
Mark H. Bergstrom, executive director, Pennsylvania Commission on Sentencing; Senior Lecturer, Crime, Law & Justice, The Pennsylvania State University; Adjunct Faculty, Villanova School of Law
Steven L. Chanenson, associate dean for Faculty Research and Professor of Law, Villanova University School of Law; member, Pennsylvania Commission on Sentencing; managing editor, Federal Sentencing Reporter

Summary
Many states are reforming their sentencing and corrections policies by implementing evidence-based practices, including assessments that measure the risk of individual defendants reoffending in the future. Although common in parole release decisions, risk assessments are used less often in sentencing. The authors, all members of the Pennsylvania Commission on Sentencing, encourage the U.S. Sentencing Commission to follow the lead of Virginia, Missouri, and Pennsylvania by incorporating actuarial risk assessments into the routine application of sentencing guidelines. Even though using such a tool at sentencing is controversial (some view it as punishing a person based on his or her potential to reoffend), they argue that risk assessments surface information that judges can use to provide more appropriate sentences as well as narrowly tailored conditions of supervision. The authors write that risk assessments at the federal level should not replace a judge’s discretion, but they can provide useful information that will help the judge make the important sentencing decision.  

Other articles in this issue

(available through University of California Press) 

• Stop Wagging the Dog: A Plea for the New Commission to Incorporate Due Process and Higher Standards of Proof into the Sentencing Hearing
  Mark H. Allenbaugh, partner, Allenbaugh Samini Ghosheh LLP, Irvine, CA
   
• Federal Prosecutors, Not Judges, Decide Whether Defendants Serve a Five-Year Mandatory Minimum in Certain Child Pornography Prosecutions: Further Cause for Repeal and Reform
  The author is a lawyer currently under suspension who practiced for 21 years on the East Coast. He recently pleaded guilty to one count under 18 U.S.C. 2252A(a)(2) and received a five-and-a-half-year sentence. He has requested that his article be published anonymously.
   
• Make Probation a Real Option at Sentencing
  Ellen C. Brotman, partner, Montgomery, McCraken, Walker & Rhoads, Philadelphia
   
• Communicating Substance
  Jelani Jefferson Exum, visiting associate professor, University of Michigan Law School; associate professor of law, University of Kansas.
   
• Comments on Sentencing Procedures
  Eric Hicks, Reg. No. 15426-016, FCI Schuylkill, Minersville, PA
   
• Fix the Broken Illegal Reentry Guideline
  Doug Keller, teaching fellow and supervising attorney, Georgetown University Law Center Appellate Litigation Clinic