An article by Kevin Bennardo, Teaching Fellow and Assistant Professor of Professional Practice at the Louisiana State University Paul M. Hebert Law Center, will be published in the upcoming Summer 2013 issue of the Missouri Law Review. Professor Bennardo’s article comments on the relationship between the Federal Offense Guidelines and statutory limits on sentencing. An abstract of his paper is published below:


Decoupling Federal Offense Guidelines

from Statutory Limits on Sentencing


Forthcoming in Volume 78, Issue 3 of the Missouri Law Review


—    Abstract

When incorporating statutorily-mandated minimum and maximum sentences into offense guidelines, the United States Sentencing Commission must strike a delicate balance between promulgating guidelines that are consistent with federal law and carrying out its characteristic institutional role of advising sentencing courts of proper punishment based on empirical data and national experience.  This article recommends that, in general, when a statutory limit on sentencing deviates from what the Commission deems to be fair punishment, the Commission should incorporate the statutory limit into the offense guideline to the least extent possible.  Although this approach may lead to cliffs and plateaus in the guideline’s sentencing ranges and thereby diminish relative fairness between similarly-situated offenders, this approach maximizes the imposition of actually fair sentences (as viewed by the Commission) within the confines of the statutory scheme.  Controlled substance offenses, however, are an exception.  In some instances, drug offenders are relieved from the application of an otherwise-applicable mandatory minimum sentence through the operation of the so-called “safety valve” or, in some circuits, because the government failed to plead the triggering drug quantity in the indictment or prove it beyond a reasonable doubt.  To achieve actual fairness for these offenders, the Commission should promulgate a controlled substance offense guideline that takes no account of statutory limits on sentencing.  By amending offense guidelines that incorporate mandatory minimums to more closely reflect its own research and expertise, the Commission will better achieve offense guidelines that produce sentencing ranges that the Commission views as actually fair.