A Rational Post-Booker Proposal for Reform of Federal Sentencing Enhancements for Prior Convictions

In this article we propose a solution to one of the more vexing problems in current federal sentencing jurisprudence: classification of prior offenses for the purpose of applying sentencing enhancements in immigration cases. The current system is unduly difficult to apply and leads to poor sentencing outcomes. We urge the United States Sentencing Commission to conduct systematic empirical surveys of crime definitions and prosecution practice, on both the interstate and intrastate level. The Commission should use those surveys to determine which specific statutes of conviction should trigger the relevant enhancements, instead of forcing the courts to decide on a statute-by-statute basis.

On the interstate level, the surveys would allow the Commission to identify state codes that are out of sync with the national norm. On the intrastate level, the surveys would allow the Commission to determine whether a facially non-generic statute was actually being applied to non-generic predicate facts. The current system also lumps too many types of prior convictions into the same enhancement levels and largely ignores the length of sentence received for the prior convictions. We propose a graduated scale of enhancements based on empirical evaluation of the severity of predicate offenses as measured by federal sentencing practices.