Criticism of Federal Sentencing Guidelines

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 What Are the Federal Sentencing Guidelines?

When you are convicted of a crime in federal court, the judge will hold a sentencing hearing to determine your sentence. A sentencing hearing may occur right after you’ve pled guilty or been found guilty, or it may take place weeks or even months later. Typically, the sentence will consist of a fine, restitution (payment to the victim), prison time, community service, or a combination of these.

When a federal judge decides sentencing for a defendant, they are required to consider established federal sentencing guidelines in determining the appropriate punishment. Federal sentencing guidelines offer recommended sentences based on a combination of the defendant’s criminal history and the type of crime the defendant committed.

Before the sentencing guidelines were developed, two defendants with similar backgrounds and crimes could be sentenced to wildly disparate amounts of time in prison or the amount of the fine. The purpose of the sentencing guidelines was to set standard punishments to avoid wide swings in punishment from one defendant to another.

As a result of these inconsistencies, many citizens began to lobby for federal guidelines and more consistent sentencing. In response, Congress passed the “Sentencing Reform Act of 1984.”

How Do the Guidelines Work?

A table, widely available online, sets out the coordination of offenses and offenders and the range of sentences. This table tells judges the appropriate sentencing range for different crimes and offenders. The guidelines generally consider two things. The first is the seriousness of the crime, and the second factor is the defendant’s prior criminal history.

Every federal crime that is a felony or a Class A misdemeanor is associated with an offense level. The guidelines include 43 offense levels. The higher the level, the more severe the crime is, and the longer the suggested prison sentence is.

In addition to the base offense levels, every type of offense is assigned several additional factors. These can raise or lower the base offense level and, in turn, affect the sentence. Here are some examples:

  • A home burglary or theft offense begins at level 17. It goes up based on the amount of property stolen. If the burglary led to property loss with a value of $2500 or more, an additional level is added. If the value of the property loss was more than $800,000, five levels are added
  • Robbery has a base offense level of 20. There is an increase of five levels if a firearm was displayed in the robbery. This would raise the total level to 25. And if the firearm was fired in the course of the robbery, there is an increase of seven levels

Complicating things further is the possibility that adjustments apply. Adjustments are factors that may apply to any offense, raising or lowering the offense level. There are victim-related adjustments, the offender’s role in the offense, and obstruction. Some examples of adjustments are the following:

  • If the offender participated only to a minimal extent, e.g., they were the driver of the getaway car in a bank robbery, the offense level is decreased by four
  • If the offender knew the victim was vulnerable because of their age or mental condition, the offense level goes up by two
  • If the offender obstructed justice, the offense level also goes up by two

The other main factor used in the guidelines is the offender’s history. The guidelines are based on the idea, common in criminal law, that repeat offenders should get longer prison sentences than people convicted of fewer prior criminal acts. In the guidelines system, points are awarded for every prior conviction.

Assigning the points for a crime is more of an art than a science. Prosecutors will argue that a given situation is worth, for example, 35 points, while the defense will argue that the correct number is 30. The judge has to hear the parties’ arguments and decide how much weight to give to them.

Judges can award sentences that are outside of the guidelines, but they must give a written explanation of why they are doing so.

Did the Sentencing Reform Act Work?

As noted, the objective of the Sentencing Reform Act (SRA) was to completely, nationally overhaul and correct federal sentencing disparities.

However, there was an unexpected consequence: the result of the implementation of the legislation was not that disparities disappeared (throughout the country, they did not) but that punishments became more severe.

To accompany the sentencing reform legislation, Congress also created the United States Sentencing Commission, to establish sentencing policies and practices. The Commission promulgated the federal sentencing guidelines and issued reports to Congress recommending changes in federal legislation.

Although the newly formed Commission claimed to base the new federal sentencing guidelines on existing practice, their data was limited. As a result, they simply took existing sentencing lengths and increased them. Further, the federal sentencing guidelines significantly increased the percentage of defendants sentenced to prison rather than alternative forms of punishment, such as probation or community service.

The guidelines made it mandatory that judges consider past criminal history to increase the punishment and terms of imprisonment for repeat offenders. Thus, a repeat offender for petty crimes would now face much harsher penalties and have their sentence enhanced (increased) to the same level as an offender convicted of a much more heinous crime. The inevitable result of increasing the length of prison terms was, and still is, severe prison overcrowding.

In addition, the federal sentencing guidelines still had rampant sentencing disparities, and they were often (at least statistically), based on race. For example, before 2010, one person could be convicted of possession of 5 grams of cocaine and receive a 5-year prison sentence, while a different person could be convicted and receive the same 5-year prison sentence for possession of as much as 500 grams of cocaine. What was the difference? The person with 500 grams of cocaine was white and possessed powder cocaine, while the other was a minority and possessed crack cocaine.

Federal sentencing guidelines remain the subject of a great deal of debate. It is unclear whether any major changes will be made to the system which might ease these problems.

What are Some Criticisms of the Federal Sentencing Guidelines?

Just as when they were first developed, today, the federal sentencing guidelines are still very much the subject of much criticism and debate. Before the federal sentencing guidelines were created, federal judges imposed random sentences with nearly unlimited discretion so long as they did not violate the U.S. Constitution’s prohibition on cruel and unusual punishment.

The United States Supreme Court recognized that the sentencing judges’ broad discretion led to significant sentencing disparities among similarly situated offenders and offenses and that judges had an “unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances.”
The range could be very wide: for instance, a federal judge in one district could sentence someone found guilty of robbery to 1 year in prison, while a judge in another (or even the same) district could punish a similar robbery with 20 years of incarceration.

This disparity was unfair to the defendants. The unpredictability of sentencing made it very hard for the accused to decide whether to change a trial or accept a plea bargain. Local criminal defense lawyers knew which judges handed out the most severe consequences and dreaded having a case be assigned to one of them.

What Should You Do If You Are Facing a Mandated Federal Sentence?

If you have further questions regarding the guidelines or are facing criminal charges that may be unfair or unjust, it is in your best interest to contact an experienced local criminal defense attorney.

An experienced attorney will know what to present before your particular judge to obtain a more favorable, less unreasonably harsh sentence for you.

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