February 11, 2003
Re: Amend or oppose the PROTECT Act (S. 151)
Dear Senator:
The undersigned organizations write to express our
objection to certain sentencing provisions in the PROTECT Act (S. 151),
which may come before the full Senate for a vote this week.
Specifically, Section 12 would extend mandatory minimum sentences to a new category of offenders and Section 6(c)
would require specific changes to the U.S. Sentencing Guidelines in a
manner that is inconsistent with the statutory role of the Sentencing
Commission.
With regard to both provisions, a better approach
would be the enactment of general directives to the United States
Sentencing Commission, instructing that agency to assure appropriate
sentences for the conduct in question. We urge that you oppose this
legislation or seek to amend it with general directives to the
Sentencing Commission.
Chief Justice William Rehnquist has called mandatory
sentencing “a good example of the law of unintended consequences,” and
many Members of Congress, from both sides of the aisle, have expressed
reservations about mandatory minimum sentences. The Judicial
Conferences of all 12 federal circuits have urged the repeal of
mandatory minimum sentences, after concluding that they are unfair and
ineffective. And numerous studies, including those by the Department of
Justice and the U.S. Sentencing Commission, indicate that mandatory
minimum sentencing is not an effective instrument for deterring crime.
While most criticism of mandatory minimum sentences
has focused on the federal drug statutes, the reasons for rejecting
mandatory minimums apply without regard to offense type. Mandatory
minimum sentencing deprives judges of the ability to fashion sentences
that suit the particular offense and offender. Despite their flaws, the
Sentencing Guidelines are better able to take into account the range of
factors that are relevant to the sentencing decision.
The Sentencing Guidelines also are better able to
exclude factors that give rise to unwarranted sentencing disparities.
In transferring sentencing discretion from judges to prosecutors,
mandatory minimum sentences transfer the sentencing decision from open
courtroom to closed prosecutor’s office. Consequently, there are
inadequate guarantees that statutorily prohibited factors such as race,
age and gender do not influence the ultimate sentence. Even when the
charging — and, in effect, sentencing — decision is free from taint,
such closed-door decisions can undermine the appearance of equal
justice.
In the past, Congress has successfully relied upon
general directives to the Sentencing Commission — provisions which
instruct that agency to review and, if necessary, increase the
applicable Guideline sentences. There is no reason to depart from that
practice for the offenses covered by the PROTECT Act. On the contrary,
general directives to the Sentencing Commission would better accomplish
the goals of this legislation — without undermining the uniformity and
fairness that Congress sought in establishing the U.S. Sentencing
Commission and enacting the Sentencing Guidelines.
Thank you for considering our views on the PROTECT
Act. Please contact Kyle O’Dowd at NACDL (202-872-8600, ext. 226) or
Julie Stewart at FAMM (202-822-6700) if you have any questions.
Lawrence S. Goldman
President
National Association of Criminal Defense Lawyers
Julie Stewart
President
Families Against Mandatory Minimums
H. Scott Wallace
Director, Defender Legal Services
National Legal Aid and Defender Association
Nancy Graven
President
National Association of Federal Defenders
cc: Full Senate