Rethinking the Guidelines: A Call for Cooperation

• NCJ Number: 138584
• Journal: Yale Law Journal Volume: 101 Issue: 8 Dated: (June 1992) Pages: 1755-1771
• Author(s): D P Lay
• Date Published: 1992
• Length: 17 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article presents Professor Dan Freed's arguments against the Federal sentencing guidelines and critiques amendments currently being considered by the U.S. Sentencing Commission in response to recommendations of the Judicial Conference.

Abstract

Freed concludes that the Federal sentencing guidelines have become unnecessarily rigid and imprisonment policies unduly severe. The courts of appeals have contributed to the rigidity of that process by restricting the authority of judges to depart from the guidelines in appropriate circumstances; the guidelines have undermined the idea of guided discretion by providing mandatory penalties; and the Sentencing Commission has typically not responded to proposals by individual judges and the Judicial Conference for flexibility and moderation. The Commission, however, is apparently considering amendments to the guidelines in response to recommendations of the Judicial Conference. Some of the amendments address the concerns of Professor Freed; for example, amendment 29 would give the district courts greater flexibility to impose sentences other than imprisonment. One of the recommended options would expand the availability of probation and provide for split sentences. Amendment 35(C) requests comment on the issue of whether or not courts should consider conduct for which a defendant has been acquitted in determining the offense level, or whether they should consider such conduct only in determining whether to sentence within a guidelines range. Other amendments would broaden the discretion of the sentencing judge to depart from the guidelines when certain offender characteristics are present. Another amendment would give the sentencing court more authority to consider the nature rather than the number of prior offenses when considering whether or not to depart from the guidelines. The amendments, however, do not adequately address the concept of intermediate punishment. 52 footnotes