All of you wanna-be U.S. Sentencing Commissioners can stand down for the time being: President Obama has nominated Judge Charles R. Breyer to fill the seat on the Commission vacated at the end of 2010 by Judge Ruben Castillo. Judge Castillo left big shoes to fill as a strong advocate for individualized sentencing (and opponent of mandatory minimums) and one of the key champions for crack cocaine sentencing reform on the Commission.
Judge Breyer should not to be confused with his more famous brother, U.S. Supreme Court Justice Stephen Breyer (who, to make things more confusing, was one of the original Sentencing Commissioners responsible for drafting the first-ever sentencing guidelines).
I wanted to know right away: what does Judge Charles Breyer think about advisory sentencing guidelines and judicial discretion (which is a fancy way to say judges, not Congress or U.S. prosecutors, get to decide the sentence)? I have encouraging news to report on this front.
According to his testimony before the Commission in 2009 (his starts on page 103) we learn that
- Judge Breyer likes advisory guidelines: “Almost all of us are more pleased with the post-Booker sentencing process than the previous [mandatory guidelines]. And I think that all of us actually would agree that sentencing, which is the hardest part of our job, has become even more difficult but more rewarding because of the responsibility it imposes on judges to do justice.”
- He likes individualized sentencing and appears to support the idea that guideline amendments should be based on empirical evidence, including feedback from judges: “There will and perhaps should be variances from the guidelines in individual sentences, but these variances should be explained in detail so that it is the guideline that ought to be amended; there will be empirical evidence on a nationwide basis to support its changes.”
- He said nice things about alternatives to incarceration: “[I]f there were ways to put within the guideline structure some alternatives for low-level drug defendants . . . that would encourage [alternatives to confinement].”
- He knows how to use the safety valve: In 2003 he sentenced a defendant convicted in federal court for growing medical marijuana (which was legal in the state of California) to one day in prison instead of the five-year mandatory minimum sentence he was facing.