Although some witnesses at the United States Sentencing Commission's February 2012 hearing advocated legislative changes designed to make the Guidelines more binding or mandatory, other witnesses (including the author) opposed those changes and testified that the system is working reasonably well. This essay argues that the Commission's data do not show a level of variance that should be regarded as troubling and provide no justification for legislative changes to reduce judicial discretion. The data do show an increase in below-guideline sentences and significant variation in the rate of below guideline-sentences in different federal districts and circuits. But these statistics do not demonstrate either unjustified disparity or the need for fundamental changes in the federal sentencing system. 18 U.S.C. § 3553(a) instructs the sentencing court to consider “the history and characteristics of the defendant,” and below-guideline sentences based on relevant offender characteristics are not unwarranted. Similarly, variations in the rate of below-guideline sentences are not presumptively unwarranted. They reflect a wide variety of factors, including significant differences in prosecutorial–not judicial–practices, to which sentencing judges may appropriately respond. The Commission also heard testimony advocating other legislative changes that would preserve judicial flexibility but lower severity levels, simplify the system, enhance the reliability of fact-finding, and insulate sentencing from Congressional micro-management. In short, there is no consensus on the kinds of change, if any, that should be made. This is not the time to invite Congress to overhaul the federal sentencing system.

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