A Response to Judge Pryor's Proposal to 'Fix' the Federal Sentencing Guidelines: A Curse Worse than the Disease

42 Pages Posted: 28 Jan 2017  

Amy Baron-Evans

Federal Public and Community Defenders

David Patton

Federal Defenders of New York; NYU School of Law

Date Written: January 27, 2017


Eleventh Circuit Judge and United States Sentencing Commissioner, William H. Pryor, Jr., has proposed legislation to improve federal sentencing procedure in the wake of the Supreme Court's 2005 decision in United States v. Booker. He asserts that his plan would address the problems of complexity, disparity, and (to a limited extent) severity. His proposed framework would return the federal system to a version of the pre-Booker mandatory guidelines with strict appellate review of Commission-controlled departures. Unlike the pre-Booker regime, the new system would include fewer and wider ranges based on a few facts, and a requirement that aggravating facts be charged in an indictment and proved to a jury beyond a reasonable doubt or admitted by the defendant. To avoid an unconstitutional delegation of legislative authority to define elements of crimes, the aggravating elements would be enacted by Congress. According to Judge Pryor, the statutory mandatory guidelines system would eliminate the need for statutory mandatory minimums except for “egregious offenses.” Judge Pryor said that “at least for now,” the proposal was solely his, and not the official position of the Sentencing Commission.

We agree with Judge Pryor that unwarranted disparity is a problem and that the guidelines are overly complex and in many instances unnecessarily severe. We disagree, however, that Judge Pryor’s proposal is the way to solve those problems. Indeed, his proposal would likely exacerbate many of the problems he identifies and erase the promising gains of the post-Booker era. The worst instances of unwarranted disparity occur not because of the advisory nature of the guidelines, but because of certain guideline rules and the continuing existence of statutory mandatory minimums, which add to disparities in enforcement and charging policies by police and prosecutors. Problems of severity and complexity largely exist not because of congressional mandates but because of the Commission’s own decisions. With the exception of statutory mandatory minimums, the Commission has the power to substantially address all of the problems identified by Judge Pryor without the need for legislation. As for statutory mandatory minimum sentences, they should be addressed on their own terms by Congress, as many recent bipartisan bills have proposed.

Keywords: federal sentencing, criminal law, criminal procedure, sentencing, corrections

JEL Classification: K14

Suggested Citation

Baron-Evans, Amy and Patton, David, A Response to Judge Pryor's Proposal to 'Fix' the Federal Sentencing Guidelines: A Curse Worse than the Disease (January 27, 2017). Federal Sentencing Reporter, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2907175

Amy Baron-Evans

Federal Public and Community Defenders ( email )

David Patton (Contact Author)

Federal Defenders of New York ( email )

52 Duane St.
10th Floor
New York, NY 10007
United States

NYU School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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