Legal Commentary

Even though I don?t teach administrative law, I?m constantly telling my students how important agency regulation is, and I always encourage them to take an administrative law course.  So when the U.S. Sentencing Commission published a request for public comments on the topic of a paper I published two years ago, I decided to submit a comment encouraging the agency to change its regulation.

The regulation on which the Commission sought comment involves whether military service and other personal characteristics of a criminal defendant ought to be considered at sentencing.  The existing regulation states that such characteristics are ?not ordinarily relevant? in setting a defendant?s sentence.  My comments stated that such characteristics are relevant to sentencing and ought to be treated accordingly.  The Commission recently posted an official press release (hat tip: Doug Berman) stating that it was amending its previous regulations because it:

?recognize[ed] that these factors may be relevant to the sentencing process courts undertake. Previously, these factors were deemed as ?not ordinarily relevant? in determining whether a sentence outside the guidelines was warranted. The amended policy statement provides that these factors may be relevant if they are relevant to an unusual degree and distinguish the case from the typical case. This amendment reflects the Commission?s extensive review of offender characteristics that included reviewing case law and relevant literature, receiving public comment and hearing testimony, and conducting extensive data analyses.?

 So, at this point you might be wondering why I feel disappointed in the process.