The Real Cost of Prisons Weblog

Posted 1/13/05---FAMM
Understanding Booker and Fanfan:
The U.S. Supreme Court issued a 5-4 ruling on January 12 in two eagerly awaited cases, United States v. Booker and United States v. Fanfan. The Court stated that the rule announced in Blakely applies to federal sentencing guidelines and that sentencing guidelines violate the U.S. Constitution to the extent that they require a judge to impose a sentence using facts beyond those admitted by the defendant or found by a jury beyond a reasonable doubt.

The Court then struck down the part of the 1987 Sentencing Reform Act that makes the guidelines mandatory. Though the guidelines are no longer binding on judges at sentencing, the Court directed judges to consult the guidelines before imposing sentence. This decision makes the federal sentencing guidelines effectively advisory, requiring a judge to consider the guideline ranges but permitting him or her to increase or decrease a guideline sentence so long as the sentence is reasonable.

This is an historic day for federal sentencing, said Mary Price, general counsel of FAMM. Essentially, this decision will permit judges, who have decried the harshness of the guidelines, more room to do justice by weighing role in the offense, the severity of the offense, and other factors, such as drug addiction, age or the impact of incarceration on families. However, it provides little protection for defendants facing harsh sentencing judges. They must face them without the Sixth Amendment protections many had hoped for, said Price.

WHAT IS NEXT?

In his opinion, Justice Breyer signaled the next big thing for sentencing reform. ?Ours, of course, is not the last word: The ball now lies in Congress' court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice, wrote Breyer.

Challenges lie ahead. Congress may try to move quickly to reform federal sentencing. This opinion provides guidance to courts to conduct sentencing while Congress considers the options. Federal lawmakers have a tremendous opportunity to reform federal sentencing laws but we urge them to proceed not with haste but with care, said Price. Quick fixes will create unforeseen problems, and it is critical that Congress take the time to hear from and consider the views of the judiciary, criminal justice practitioners, scholars, the Sentencing Commission and the public.
Federal Sentencing Laws
There are two types of federal sentencing laws: mandatory minimum sentencing laws, enacted by Congress, and the sentencing guidelines, enacted by the United States Sentencing Commission.
Mandatory minimum sentences have existed at various times in U.S. history, but the current laws FAMM is fighting were mostly enacted in a 1986 anti-drug bill. Members of Congress believed that stiff penalties would deter people from engaging in illegal drug activity and would incapacitate for long periods those who sold drugs. Many of these penalties are mandatory - that is, judges may not impose a penalty less than the number of years chosen by Congress. The most common mandatory sentences are for five and 10 years, and are based on the weight of the drug or the presence of a firearm. These laws prevent judges from considering other relevant factors, such as the defendant's role in the offense or likelihood of committing a future offense.

The sentencing guideline system started in 1987. Congress established the sentencing commission and directed it to write guidelines to combat unjustified sentencing disparity from judge to judge across the country. The guidelines require the sentencing judge to consider various facts about the crime and the defendant. Consideration of these facts leads to a "guideline range," for example: 18 to 24 months. While judges must generally impose a sentence within the range, they have discretion to choose a sentence anywhere within the range, and in unusual cases they may choose a sentence above or below the range if they explain their reasons for doing so.
Mandatory minimum sentencing laws and sentencing guidelines are both ways to limit judicial discretion, but the guidelines are clearly preferable. Unlike blunt mandatory minimums which take account of only the quantity of drugs sold, guidelines permit a judge to consider many relevant facts. Also, the mandatory minimums are "one-size-fits-all, "while the guidelines allow for upward or downward departures in unusual cases. Unfortunately, the mandatory sentencing laws supersede or "trump" the sentencing guidelines. At sentencing, judges must determine if the defendant was convicted of a quantity of drugs that triggers a mandatory minimum penalty and if so, impose that sentence regardless of the sentencing guidelines.
There are only two ways to avoid a mandatory minimum sentence. First, the defendant may provide "substantial assistance" to the government by turning in other defendants. Second, some defendants qualify for the "safety valve" that Congress passed in 1994 to address (at FAMM's
urging) the excessive sentences served by non-violent drug offenders. If the judge finds the defendant is a low-level, non-violent, first-time offender who qualifies for the safety valve, the defendant may be sentences under the sentencing guidelines instead of the mandatory minimum sentence law. Although the safety valve is a step in the right direction, the criteria for eligibility is very narrow so thousands of nonviolent drug defendants are still sent to prison for decades under mandatory minimum sentencing laws.

For additional information, go to www.famm.org