Document Type

Working Paper

Publication Date

1-28-2017

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Corporate Governance Network; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Criminal Justice Research Network; Political Science Network; CJRN Subject Matter eJournals

Abstract

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 Courts 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 preBooker mandatory guidelines with strict appellate review of Commissioncontrolled departures Unlike the preBooker 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 postBooker 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

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