In this tribute to the Honorable Jack B. Weinstein, his judicial successor highlights Judge Weinstein’s virtues and shares some of his wisdom. Included among these pearls are the conclusions that judges are obligated to confront injustices and that they are equal governmental partners with their executive and legislative colleagues. The essay also chronicles Judge Weinstein’s approach to sentencing and commitment to procedural justice.

Judge Jack B. Weinstein approached every sentencing with his trademark compassion and intellectual rigor. This was nowhere more evident than in two of the most challenging sentencing contexts: child pornography and terrorism. This essay considers Judge Weinstein’s refusal to sentence based on assumptions about defendants and their conduct, and his insistence on empirical data, expert evaluations, and asking the hardest questions about motivation and future behavior before imposing sentence. It focuses on Judge Weinstein’s sentencing practices in terrorism and child pornography cases, the two areas in which Congress and the U.S. Sentencing Commission have most limited judicial discretion in sentencing. It shows that despite those limits, Judge Weinstein sought always to impose individualized sentences based on the actual person before him. He believed every person—no matter their worst act—could be salvaged, and deserved happiness.

Racial disparities exist in many corners of our nation, but none so omnipresent as in the criminal justice system. If we are to truly dismantle racial disparities in the criminal justice system, we need to understand how they are produced at three levels—the state (macro), court community (meso), and individual (micro) levels—and develop strategies accordingly. This article demonstrates how racial disparities in sentencing are produced and could potentially be addressed at all three levels.

We are at a notable moment to contemplate federal sentencing. Fifteen years ago, the Supreme Court issued its landmark decision in United States v. Booker . Just over 25 years ago, Congress passed and the President signed the 1994 Crime Bill. By looking backward and learning from history, we may be able to move forward more productively. One remarkable aspect of Booker is that it still controls federal sentencing a decade and a half later. Congress has chosen to largely leave the system as the Court refashioned it. The world is different today than it was in 2005. Yet the Booker framework – established by two essentially dueling 5-4 majorities of the Supreme Court – endures. In some ways, the most remarkable aspect of Booker at 15 is how unremarkable it appears to contemporary eyes. It is the dog that doesn’t bark – at least not much. In order to truly benefit from the lessons of our criminal justice history, we must go beyond guidelines. Just over 25 years ago, Congress spoke forcefully in the 1994 Crime Bill. It was addressing the concerns of that era with tactics that garnered wide support at the time but are not always viewed favorably today. By stopping to explore the context and consequences of two of the most significant judicial and legislative criminal justice events of the last quarter-century, lessons may emerge. That is a good thing. If we are to make mistakes again (and we will), they should be new ones. Only by understanding the past can we effectively illuminate the path forward.

This article updates the author’s previous survey of guidelines systems, published in this journal in 1999, and reviews what these reforms have and have not accomplished. Sentencing guidelines developed by an independent sentencing commission are currently being used in 17 states, the federal courts, and the District of Columbia. The majority of these systems have also replaced parole release discretion with defined good-time reductions for compliance with prison disciplinary rules and assigned prison programming, and this combination of sentencing and parole reform has been endorsed by the American Bar Association and the American Law Institute. The article summarizes and critiques the many variations among guidelines systems. Some relate to scope -- which crimes and sentencing issues are regulated; others concern design details – how the system actually works. The article identifies five central features of a well-designed guidelines system: a permanent, balanced, independent, and adequately funded sentencing commission; typical-case presumptive sentences and departure criteria; a hybrid sentencing theory that recognizes and harmonizes retributive and crime control purposes; balance between the competing benefits of rules and discretion; and sentence recommendations informed by resource and demographic impact assessments. Balance is also needed in terms of commission composition, and between the influence of the commission, the legislature, and case-level actors. But even if all of these features cannot be adopted, some form of structured sentencing is essential; completely discretionary sentencing is unacceptable. And in the past four decades, no competing structured sentencing model of comparable scope has been adopted or even seriously proposed.

American jurisdictions seeking to reduce their heavy reliance on prison sentences should emulate European practices, but they should also learn from practices already found in some American states, and in all states at earlier times in our history. European countries make much less use of custodial sentences by employing alternatives such as prosecutorial diversion, fines and day fines as the sole sanction, suspended custodial sentences, and community service or training orders imposed as conditions of probation. These European practices should not be dismissed on the assumption that they are “too foreign”; each of them is well-known in the United States, and their use may be more common than we imagine. If we had better data on these practices – which we should – jurisdictions that aren’t often using them could learn from those that are. There may also be uniquely American practices that help to explain why some states have been able to maintain consistently low prison rates, or to lower their formerly high rates. One such practice is the use of sentencing guidelines combined with parole abolition, developed and monitored by an adequately funded independent sentencing commission, and matching prison use with available prison capacity. Finally, we should learn from our collective past; the United States has not always had extremely high “mass incarceration” rates, nor has it always had rates much higher than those in Europe. Americans should not accept, as the new normal, prison rates five times higher than those that prevailed for fifty years prior to the mid-1970s.

The Ugandan Taskforce on developing sentencing guidelines recently drafted sentencing guidelines for Uganda, which were issued as practice directions by the Chief Justice to assist judges and magistrates in the sentencing decision making process. Like in many other jurisdictions, the sentencing guidelines have been developed to address the perceived existence of inconsistencies in sentencing of similarly placed offenders. This article offers the first insight into Uganda's new sentencing guideline reform. Part I offers some brief commentary on the nature of discretionary sentencing in Uganda. This is followed by a concise chronology of the historical origins of the guidelines, including a brief commentary on the Ugandan Supreme Court decision in the Kigula case that abolished the mandatory death penalty. This decision created a new era of discretionary capital sentencing in Uganda, which later precipitated the need for the development of the guidelines. The third section provides an insight into the main features of the sentencing guidelines, including the composition and mandate of the Ugandan Taskforce that drafted the sentencing guidelines and a brief commentary on the scope and contents of the guidelines. This section addresses some important weaknesses confronting the Uganda guidelines. The article suggests that the Ugandan Taskforce crafted the guidelines on a loose definition of consistency which has given consistency as the main goal of the guidelines a meaningless function. The article concludes that consistency would be given a meaningful function if Uganda's guidelines are modeled on a limiting retributivism justification.

Ten years after the Supreme Court issued its Blakely decision, American sentencing law and policy feel very different. In 2004, many believed modern sentencing systems were destined always to be on a legislatively driven, inexorable march to ever-greater severity. A decade later, sentencing remains the center of a vigorous debate about what we want from our criminal justice system and even who we are as a society, but the terms of the debate now largely revolve around how much to lower prison terms rather than how much to raise them. This essay highlights the continued constitutional fallout from Blakely , and the current policy debates that have come to define modern sentencing systems.

This Commentary provides a perspective on the U.S. Sentencing Commission’s proposed amendment to the drug distribution guideline. The proposed amendment has the potential to substantially affect federal sentencing and incarceration because of the sheer volume of advisory sentencing ranges that are calculated through the drug distribution guideline. Although the proposed almost-across-the-board offense level reduction is laudable, the Commission should go further in its amendment of the drug distribution guideline. First, the proposed amendment reduces most of the offense levels in the Drug Quantity Table by two levels, but it does not alter the offense levels for distributions of the smallest and largest drug quantities. The amendment would be more internally consistent if the Commission simply reduced the offense levels applicable to the entire Drug Quantity Table by two levels. Second, the amendment continues to base the offense levels in the Drug Quantity Table on the mandatory minimums in the drug trafficking statute. The Commission should delink the Drug Quantity Table from the mandatory minimums. An increasing number of drug defendants escape the operation of otherwise-applicable mandatory minimum sentences, particularly in the wake of the Supreme Court’s decision in Alleyne v. United States and the Attorney General’s directive to federal prosecutors to structure indictments to avoid mandatory minimums for certain low-level, non-violent drug offenders. Fairness dictates that these offenders receive a advisory sentencing range that reflects the Commission’s research and expertise rather than one that is bound to inapplicable statutory mandatory minimums.

These Editor's Observations introduce Volume 24, Number 5 of the Federal Sentencing Reporter, an issue devoted to renewed discussion in Congress and the U.S. Sentencing Commission about whether there is a need for legislative action to revise or replace the advisory federal sentencing guidelines system judicially created by the U.S. Supreme Court's 2005 decision in United States v. Booker . It describes the basic positions of the main institutional actors, briefly summarizes the articles in the issue, and makes a prediction about the likelihood of action in the near term.

This article contends that the advisory guidelines system created by the Supreme Court's 200 decision in United States v. Booker should be replaced. It advances three arguments: First, the post- Booker advisory system is conceptually indefensible. It retains virtually every feature excoriated by critics of the original sentencing guidelines. Its extreme 'advisoriness,' while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place. More importantly, the post- Booker system does not solve the biggest problem with the pre- Booker system — that its architecture and institutional arrangements predisposed the Commission's rule-making process to become a one-way upward ratchet which raised sentences often and lowered them virtually never. Its sole relative advantage — that of conferring additional (and effectively unreviewable) discretion on sentencing judges — is insufficient to justify its retention as a permanent system. Second, there exist a number of constitutionally permissible alternatives to the court-created Booker system, one of which — that originally proposed by the Constitution Project and more recently endorsed by Judge William Sessions, former Chair of the U.S. Sentencing Commission — is markedly superior to the present system. Third, the difficult problem is not designing a sentencing mechanism better than either the pre- or post- Booker guidelines, but ensuring that such a system, once in place, does not replicate pre- Booker experience and become a one-way upward ratchet prescribing ever higher sentences. The article offers suggestions about how this difficulty might be solved, while conceding both the difficulty of this problem and the justice of the concern that, however imperfect the advisory system, it may be the best that can be achieved given the present constellation of institutional and political forces.

This 8-page letter to the U.S. Sentencing Commission Chair from the U.S. Department of Justice Criminal Division is reprinted from the U.S. Department of Justice Web site at http://www.justice.gov/ . The letter notes the challenges facing federal sentencing and corrections policy and, in a section on congressional directives, reports on mandatory minimum sentencing statutes and outlines guideline amendments to address congressional directives. The letter also outlines other guideline issues—including the categorical approach to reviewing predicate offenses and child exploitation crimes—as well as circuit splits and erroneous court decisions.