Sentencing Policy is Getting Really Interesting

Sentencing Law and Policy Blog has a bit about a 7th Circuit this week, discussing what meaningful consideration of sentencing recommendations is. The decision also concerns not only how judges must meet their obligations for evaluating competing sentencing request, but how they must explain why one recommendation was accepted and the other rejected.

The [trial court’s] first explanation about the negligible difference between the parties’ sentencing recommendations is troublesome for a couple of reasons. To begin, the so-called parsimony provision of § 3553(a) requires that judges “impose a sentence sufficient, but not greater than necessary” to serve the purposes of sentencing. The judge need not expressly refer to that provision at sentencing, Abebe, 651 F.3d at 656, but his explanation of the sentence must be consistent with its meaning, see Johnson, 635 F.3d at 988 n.1 (collecting cases). By characterizing the difference between the recommended sentences as “de minimis,” the judge implicitly accepted that 64 months was sufficient to serve the purposes of sentencing. If so, the parsimony principle would ordinarily require the more lenient sentence.

Full opinion is in the link, but it’s here (.pdf)  (US v. Pennington, No. 11-1257).

The 7th Circuit chided the trial court, essentially, for admitting that there was no meaningful difference between a 68-month sentence (the Prosecution’s recommendation, which was the low end of the Sentencing Guidelines) and a 64-month sentence (the Defendant’s recommendation, which is slightly below the Sentencing Guidelines), but still imposing the longer sentence. Calling the difference between the two recommendations “silly”, the judge imposed the 68 month sentence. The 7th Circuit emphasises the “parsimony provision” of § 3553(a) requires that judges “impose a sentence sufficient, but not greater than necessary” to serve the purposes of sentencing. Basically, if a 68-month sentence is no different from a 64-month sentence, the court must impose the sentence that is “not greater than necessary”. The court did not, so either there is a difference, which the judge did not bother to adequately explain (as he is required to do) or he imposed the wrong sentence.

Our prisons are seriously over-crowded and incarceration does little to address social ills. Sentencing policy seems posed to begin correcting this.

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