Rationality in Federal Sentencing Best Brought by Advisory Guidelines, Says ABA to House of Representatives Committee

WASHINGTON, D.C., Oct. 12, 2011 — In testimony before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, James E. Felman expressed firm support for advisory sentencing guidelines that are continually reviewed as the means to “best advance the purposes of sentencing and reduce both unwarranted disparity and its equally problematic inverse, unwarranted uniformity.”

Felman presented testimony today on behalf of the American Bar Association during a hearing on “The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker.”  He serves as co-chair of the ABA Criminal Justice Section Committee on Sentencing and is the association’s liaison to the Sentencing Commission.

Felman spoke to the goal of the Sentencing Reform Act, that of eliminating unwarranted disparity and bringing rationality to the system, and argued against the premise that the SRA sought to eliminate from consideration offender characteristics at sentencing.  Rather, Felman noted that the act directed the commission “to provide ‘sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.’” Indeed, the advisory guidelines have not resulted in decreased sentence lengths, Felman pointed out.

With respect to the creation of the Sentencing Commission in order to promulgate guidelines based on national experience and empirical data, Felman said, “Congress wisely created the Commission as a neutral expert body, to act on the basis of research, not fleeting ‘political passions.’”

Felman also urged Congress to repeal mandatory minimum sentencing statutes.  Contrasting mandatory minimums with the approach of advisory guidelines that take into account the full set of circumstances of the case and the charged, Felman’s testimony noted, “Mandatory minimums blind the courts to the defendant’s role in the offense and his or her acceptance of responsibility.  Sentencing by mandatory minimum is uniformly indifferent to whether the result furthers all or even any of the purposes of punishment.”

Finally, Felman’s prepared remarks expressed opposition to considering an overhaul of the advisory system in order to make it more binding.

A full copy of Felman’s prepared testimony is available here.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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