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March 18, 2010

ABA Urges Sentencing Guidelines Change to Allow Greater Judicial Discretion

ABA’s Testimony before U.S. Sentencing Commission calls for alternatives to incarceration

James Felman, ABA Criminal Justice Section, Testifies Before U.S. Sentencing Commission

James Felman, ABA Criminal Justice Section, Testifies Before U.S. Sentencing Commission

James Felman, co-chair of the _ Criminal Justice Section’s Committee on Sentencing, spoke on behalf of the ABA before the United States Sentencing Commission yesterday.  In his testimony, Felman expressed the association’s support for the commission’s proposals to expand the use of alternatives to incarceration, but said they could go farther.

“The time has come to reverse the course of over-incarceration,” stressed Felman.

Felman highlighted the need for judicial discretion in imposing non-prison sentences in saying, “We are all familiar with the recent statistic that, for the first time in our nation’s history, more than one in one hundred of us are imprisoned.”  While nearly all state criminal justice systems utilize a variety of forms of punishment short of incarceration, Felman said the same cannot be said for the federal system where alternatives have been sharply curtailed since the advent of the Sentencing Guidelines in 1984.

In referring to the legislative history of the Sentencing Reform Act, Felman emphasized the association’s belief that Congress’ intent was to treat probation and fines as forms of punishment and deterrence, and said that the guidelines as they currently read don’t provide district judges the flexibility to consider alternatives to incarceration.  He said that judges should be allowed to review individual cases and situations and impose sentences that are “sufficient, but not greater than necessary.”

The ABA applauds the commission for providing judges with greater discretion under proposed amendments to the Sentencing Table, but states that they “simply do not go far enough.” Felman first urged the commission to expand the Sentencing Table offense zones that judges may consider in cases by two offense levels rather than one.  “If the zones were expanded by only one level,” Felman said, “This would have virtually no practical effect in the vast majority of cases — those involving economic crimes, tax offenses, drug offense and many others … Even after a one-level expansion of the zones, imprisonment would still be required in virtually all cases in which imprisonment is required by the existing guidelines.”

Felman also urged that the distinction between zones B and C of the Sentencing Table be eliminated, merging the two:  “This would more accurately capture the individualized sentencing processes in which judges must first determine whether any term of imprisonment is necessary to satisfy the purposes of sentencing.”

Finally, the association urged that a new Criminal History Category O be created for true first offenders.  As presently written, the guidelines have both first offenders and offenders with criminal records in the same history category. “The commission’s extensive study of criminal history and recidivism demonstrated that true first offenders are simply different — they have significantly lower risk of recidivism than those with prior criminal experience.”

The testimony also urged the U.S. Sentencing Commission to make “the greatest use of [substance abuse or mental illness] treatment possible because we believe this will maximize the opportunities for better outcomes, reduced recidivism and the avoidance of unnecessary incarceration.”

To read Felman’s testimony, click here.

Learn More About:  Criminal JusticeSentencing