Congress Should Engage in Sentencing Review: Some Ideas for the 111th Congress

Since the Booker decision, Congress has demonstrated, for the most part, remarkable restraint against tinkering with the system, a fact owed in large measure to the efforts of the United States Sentencing Commission to keep Congress informed about federal sentencing trends. The Commission has done an admirable job in turning around its data collection, analysis, and reporting functions to provide Congress, and the entire criminal justice system, with useful statistics and information that suggest the system is not falling apart. For example, the Commission\u27s efforts demonstrate, as Frank Bowman noted, that the average sentence in federal cases did rise between the pre-Booker 2005 time period (median sentences of 43.8 months) and fiscal year 2007 (51.8 months). Looking at this statistic suggests that the system is not spinning out of control across the board resulting in every federal offender receiving a probationary sentence. Moreover, despite the Department of Justice\u27s concerns immediately after Booker that it would lose leverage to gain cooperation from defendants, not only has the rate of substantial assistance motions remained relatively steady, the percentage of government-sponsored below-range sentences has continued to increase since Booker