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Sentencing commissioners get mixed advice on removing departures from the Guidelines; many urge preserving deleted text for courts
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Summary
The commission's simplification proposal to eliminate formal 'departure' provisions drew broad support from practitioners and defenders as aligning the manual with post-Booker practice, while the Department of Justice and advisory groups urged preserving deleted departure language (for example, via an appendix) to satisfy congressional directives
The commission's proposal to simplify the Guidelines by removing formal "departure" provisions and aligning the manual with post-Booker sentencing practice drew substantial, detailed comment at a public hearing.
Practitioners' groups and defenders strongly supported elimination of departure text from the main body of the manual, arguing the departure step is rarely used in practice and that judges now rely primarily on 18 U.S.C. §3553(a) variances. "Courts that we appear before largely rely on the variance process as opposed to the departure process," Natasha Sen, chair of the Practitioners Advisory Group, said. Several defenders urged the commission to promulgate a revised Chapter 1 immediately to reflect present-day practice.
The Department of Justice voiced conditional support for simplification but warned that some departures originated from congressional directives (for example, provisions tied to the Violence Against Women Act and certain maritime statutes). Kathleen Staughton, an appellate chief at a U.S. Attorney's Office, urged the commission to preserve historical departure text in an accessible form (for example, an appendix) and to consider conforming amendments to statutes or procedural rules that still reference departures.
Federal public defenders, probation officers and victims advisers urged a pragmatic transition. Mary Ann Mariano of the Defender Services community supported eliminating departures but recommended preserving the content of commonly relied-on departure provisions (for example, guidance on criminal-history adjustments and concurrent-executive-sentencing scenarios) so courts and litigants can find it when needed. The Probation Officers Advisory Group suggested including language that preserves the functional guidance of departures (not the old procedural framework) in the manual or an appendix; they also proposed retaining section 5K2.23's substance in Chapter 5 text because it addresses executed-term circumstances judges still encounter.
Why it matters: removing departures would change how sentencing arguments are framed and may affect plea negotiations and judicial explanation at sentencing. Many witnesses urged the commission to preserve the substance of departures in a clearly retrievable place to avoid unintended gaps in guidance for judges, probation officers and practitioners.
What’s next: the commission signaled it will consider an approach that removes departure rules from the main manual while preserving their text and reasoning in an appendix or background material and will review whether statutory cross-references need conforming amendments.
