News Release

October 23, 2002

Media Contact: (202) 842-0200 ext. 800

Federal Sentencing Guidelines Should Be Scrapped, Study Says
Study shows current Federal Sentencing Guidelines have perverted the judicial process

WASHINGTON -- Nov. 1 marks the 15th anniversary of the Federal Sentencing Guidelines, which imposed new sentencing restrictions on federal judges. In a new policy analysis reviewing the last 15 years, "Misguided Guidelines: A Critique of Federal Sentencing," Erik Luna, an associate professor of law at the University of Utah, outlines how the congressionally mandated Federal Sentencing Guidelines undermine constitutional principles and produce unjust results. "Scores of federal defendants are sentenced under a convoluted, hypertechnical, and mechanical system that saps moral judgment from the process of punishment," says Luna.

The Guidelines have tended to shift power from impartial judges to partial prosecutors, Luna explains. "Prosecutors now decide who is entitled to leniency -- and that has led to perverse results. The `big fish' get light sentences because they turn in the `small fish.' The small fish get harsh sentences because they have nothing to offer to the prosecution."

"Although the Guidelines are frowned upon from all corners of the criminal justice system, the federal judiciary had been particularly adamant in its opposition to the current sentencing regime," Luna writes. "Federal judges have described the Guidelines as `a dismal failure,' `a farce,' and `out of whack; a dark sinister, and cynical crime management power' with a certain Kafkaesque aura about it."

Luna also describes a scandalous process called "fact bargaining" -- whereby prosecutors and defense attorneys, "concoct phony factual records to circumvent the Guidelines and achieve just outcomes." Luna argues that Congress should not micromanage federal sentencing. According to Luna reform is long overdue; 15 years are enough -- and that the best way to fix the problem is to "scrap the Guidelines and start anew."

"Misguided Guidelines: A Critique of Federal Sentencing"