 September
14, 2009 -- National Law Review (US)
7th Circuit Chief Judge Calls for Loosening of Sentencing
Guidelines
By Lynne Marek, National Law Review
Original: http://www.law.com/newswire/cache/1202433750691.html
Judge Frank Easterbrook urged the U.S. Sentencing Commission on Wednesday to
loosen the federal sentencing guidelines so that judges waste
less time in precisely determining ranges that may not matter
anyway.
In testimony before the commission in Chicago, Easterbrook,
chief judge of the 7th U.S. Circuit Court of Appeals, said the
commission's "most important current task" is revamping
the structure of the guidelines in light of the U.S. Supreme
Court decisions that made the guidelines merely advisory.
Now that judges can sentence outside the ranges set by the
guideline tables, he said, they shouldn't be spending so much
time calculating those ranges in the first place.
Easterbrook had two specific proposals. First, the ranges
should be made longer -- currently, a 25 percent spread is allowed
between the number of months at the bottom and the number of
months at the top of the range. Second, the ranges should overlap
with each other more so that the possible prison times in one
range overlap more with the possible prison times in the next
most lenient and the next harshest ranges.
"These two changes will reduce the need to make precise
findings that do not affect the outcome, and thus save time for
both district and appellate judges without sacrificing any of
the statutory goals," Easterbrook said.
Even under advisory guidelines, district judges are still
required to calculate an appropriate range before using their
own discretion in determining a sentence. Likewise, appellate
judges must still make sure that the range calculation was done
correctly even when a sentence is outside the range.
The sentencing commission is holding regional hearings across
the United States to get feedback from judges, prosecutors, probation
officers, public-interest lawyers and others on federal sentencing
practices 25 years after the enactment of the Sentencing Reform
Act, which created the guidelines largely to curtail disparities
in sentencing.
The hearings in Chicago follow earlier sessions in New York,
Atlanta, and Stanford, Calif., with more to come in Denver next
month; Austin, Texas, in November; and Phoenix in January.
Easterbrook is not alone in suggesting changes to the guidelines.
Other federal judges who testified last week said some of the
sentences were too harsh. Federal prosecutors who testified mainly
deferred to a separate Justice Department effort under way to
review sentencing policy.
Douglas Berman, a professor at Ohio State University Moritz
College of Law who writes a blog on sentencing law and policy, said judges
broadly agree that the guidelines should be revamped -- with
appellate judges in particular wanting some clarification as
to what their roles are in reviewing range calculations.
"Circuit judges are now struggling to figure out what
their job is in an advisory guideline system," Berman said.
"It's not clear that the checking they're doing serves much
of a function."
Indeed, Easterbrook seems a bit annoyed by the exercise of
verifying the lower courts' calculations. "It is a make-work
prescription," he said.
Back to Dissenting Opinions
of Judges
If you have a Dissenting Opinion of a Federal or State Judge,
please mail or e-mail a copy to:
November Coalition
282 West Astor
Colville, WA 99114
(509) 684-1550
editor@november.org
|
