The new Sentencing Commission should do more than tinker with the Guidelines - reducing this or that level, adding this or that policy statements. It should start from scratch. The Guidelines that anchor sentencing - even if they do not determine outcomes - were enacted nearly four decades ago, before their impact on mass incarceration was fully appreciated, before it was known how they encoded racial bias and enabled discriminatory sentencing outcomes, before recent developments in neuroscience and psychology and before diversionary programs showed promise. It was at the heyday of a moral panic about crime (before crime rates declined), when rehabilitation had been discredited and retribution in the ascendance. Picking a number to curb disparity in sentencing – any number - and increasing punishment trumped any other sentencing purpose. Reevaluation is critical: First, research demonstrates that drug treatment, cognitive behavioral therapy, diversion programs, etc. can be efficacious, while too often imprisonment is not. Second, the Commission’s decision making underscores Justice Antonin Scalia’s dissent in United States v. Mistretta: It is a junior varsity legislature, not reflecting the latest advances in criminology, neuroscience, psychology – expertise Congress does not have- but often the prevailing political winds. Third, apart from considering fundamental changes, there are short term improvements- training judges about these fields, and not simply Guideline application, using the website to highlight how to vary and when - rather than trying to discourage variances, studying sentencing as criminologists and scholars would, rather than just monitoring t Guideline compliance. In short, they should start from scratch.
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Research Article| October 01 2022
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Judge Nancy Gertner; Note to the New Sentencing Commission: Start from Scratch. Federal Sentencing Reporter 1 October 2022; 35 (1): 6–8. doi: https://doi.org/10.1525/fsr.2022.35.1.6
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