[JURIST] Weighing in on the debate over changes to the federal sentencing guidelines, the Justice Department has suggested that minimum sentences should remain the same but that judges should be given the flexibility to give longer sentences, up the maximum as defined by Congress. The US Sentencing Commission held two days of public hearings this week on possible changes to the federal sentencing guidelines. The Supreme Court is currently considering whether the guidelines must be replaced because they call for judges, not juries, to consider factors that add additional time to a sentence. In testimony before the Sentencing Commission, Assistant Attorney General Christopher Wray said:

Under another proposal, the guidelines minimum would remain the same as is the case under the current guidelines, but the maximum would be the statutory maximum as set by Congress. This would make clear that a defendant is always subject to the maximum statutory penalty defined by Congress based upon the jury verdict alone. The sentencing guidelines would still work in the same manner they have for 20 years – identifying aggravating and mitigating factors that will be determined by a judge and that will help cabin judicial discretion to bring a more certain, consistent and just result.

While we do not endorse this or any proposal at this time, there appear to be many advantages to the proposal. This system would preserve the traditional roles of judges and juries in criminal cases. It would retain the role of the Sentencing Commission. It would be relatively easy to legislate, easy in practice, the results would replicate the current guidelines, and it would fulfill the important sentencing policies embodied in the Sentencing Reform Act. We do not believe that a new enlarged sentencing range will result in more severe sentences, as data from the Sentencing Commission show that under the current sentencing system, 99.2% of sentences imposed are within or below the sentencing range. Only 0.8% of sentences imposed are above the sentencing range. This is strong evidence that judges are not likely to sentence outside of the current ranges. Under this proposal, advisory maximum sentences would be issued as part of the guidelines manual, which would give district and circuit courts across the country the benefit of the Commission’s collective wisdom and statistical analysis regarding sentencing and would provide a suggested, though not legally mandated, maximum sentence similar to the current maximum. In addition, the Department would be free to issue an internal policy to require prosecutors to recommend a sentence within a certain range in the ordinary case.

Read the full text of Wray's testimony [PDF]; additional testimony transcripts are available from the Sentencing Commission here. The Federal Judiciary has this press release on the public hearings. The Sentencing Commission has released its 2004 Federal Sentencing Guideline Manual, which became effective Nov. 1, 2004. AP has more.