The New Sentencing Guidelines: A Benefit for Criminal Defendants?

May 7, 2010



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Last week the U.S. Sentencing Commission issued new rules for judges to follow when sentencing a criminal defendant. As of November 1, judges may now consider a defendant’s military service, age, mental, and emotional conditions prior to sentencing. The court may reduce sentences of defendants with recent criminal history as well as send nonviolent drug offenders to treatment programs instead of prison.

We don’t have the amendments on Westlaw yet. However, you can compare the current version of the rules and the new version if you run the follow search in Westlaw and check out amendment number two here.  [Note: the query below searches the term “military” in the title of the document only.]

Database: FCJ-FSG

Search: ti(MILITARY)

Results: 3 (see #3)

While these changes may be helpful for many criminal defendants it is important to point out that the Guidelines are merely advisory. In 2005 the Supreme Court held that mandatory sentencing guidelines violate the 6th amendment.  See U.S. v. Booker.

On Westlaw we have an entire database devoted to cases that rely on Booker. BOOKER-CS is filled with appeals from defendants who were sentenced under the mandatory Guidelines and in light of Booker believe that their rights were violated. In the following search, the court relies on the fact that the Guidelines do not allow them to consider military service.

Database: BOOKER-CS

Search: DEFENDANT /P MILITARY /P GUIDELINE & da(2010)

Results: 4 (see #4)

In light of the fact that the Guidelines are advisory—what do you think of the new changes? Will they have the effect criminal defense attorneys and criminal defendants are hoping for? Will Westlaw have to create a new database to hold all of the appeals that will be filed because of these changes?