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Should all "true" first offenders now get a sentencing discount in light of Gall and Kimbrough?

By Douglas A. Berman

In the olden days when the federal sentencing guidelines were mandatory, the Supreme Court in Koon indicated that a district court departing downward from Criminal History Category I would "abuse[] its discretion by considering [a first offender's] low likelihood of recidivism [because the Sentencing] Commission took that factor into account in formulating the criminal history category."  But now, of course, the guidelines are merely advisory.  And Kimbrough strongly suggests that courts can and should look to research reports by the Sentencing Commission when deciding whether and when and how to vary from the guidelines.  And in May 2004, in this interesting report titled "Recidivism and the 'First Offender'," the Commission highlights empirical data showing very low recidivism rates for what I would call "true" first offenders:The analysis [of empirical data on re-offending] delineates recidivism risk for offenders with minimal prior criminal history and shows that the risk is lowest for offenders with the least experience in the criminal justice system...continue to full post

Full post as published by Sentencing Law and Policy on July 21, 2008 (boomark / email).