Specific Crime vs. Criminal Ways: Criminal Conduct and Responsibility in Rule 3E1.1

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I. INTRODUCTION

The United States Sentencing Commission ("Sentencing Commission") drafted Rule 3E1.1 with an inherent ambiguity, one that concerns both the Rule's purpose and design. Rule 3E1.1 allows for a reduction in sentence if a criminal "accepts responsibility" for his offense.1 As result of the Rule's ambiguous language, prior tensions in interpretation of its meaning have spilled over into the current debate over sentence reductions.

The inherent ambiguity results from the Rule's genesis. The Sentencing Commission enacted the Rule with the purpose of increasing predictability in sentencing by reducing judicial discretion.2 Before the enactment of the Rule, mitigating and aggravating circumstances allowed for a great degree of judicial discretion, and it was this lack of uniformity that the Sentencing Commission sought to lessen.3

Rule 3E1.1 also sought to ease the burden on the over-taxed criminal justice system by encouraging guilty pleas.4 The Sentencing Commission initially feared, however, that granting an automatic reduction in sentence for pleading guilty would run afoul of the doctrine of unconstitutional conditions.5 Thus, their solution was not to encourage criminal defendants to forgo their Sixth Amendment right to trial and plead guilty, but rather to reward them for general cooperation and contrition. By creating a system in which criminal defendants were merely denied a reduction for failing to cooperate with authorities, the Sentencing Commission sought to encourage criminal defendants to plead guilty, while at the same time avoiding the problem of unconstitutional conditions.6

The resulting Rule achieved both goals. It encouraged guilty pleas by reducing a defendant's sentence if he "accepted responsibility" for his criminal conduct.7 It also increased predictability by creating an objective list of criteria that district courts would use to determine whether a defendant had in fact "accepted responsibility" for his crime.8

The beauty of Rule 3E1.1 is that it has the added benefit of stressing, and perhaps even expediting, the rehabilitation of criminals. It rewards those criminals who undertake such socially redeeming measures as making post-arrest rehabilitative efforts,9 cooperating with the police, and compensating victims of crime.10 Those who fail to demonstrate the acceptable levels of contrition are not punished for their lack of remorse; rather, they simply do not receive the reduction.11

With the Rule's initial inclusion in the United States Sentencing Guidelines ("Sentencing Guidelines") came a fundamental question regarding its very purpose: Did Rule 3E1.1 seek to reward a criminal for accepting responsibility for his specific crime, or did it instead look to reward a criminal for accepting responsibility for his criminal ways in general? Indeed, the circuits were divided as to whether a defendant could earn the reduction only by admitting to every criminal wrongdoing of which he was aware, or whether the Rule allowed the reduction if he simply admitted only to the offense for which he was charged.12

Faced with the split, the Sentencing Commission sought to clarify Rule 3E1.1 in a 1992 amendment that changed the wording of the Rule.13 The Sentencing Commission altered the Rule to require that a criminal only accept responsibility for his charged offense, as opposed to his general acts of criminal conduct.14 As a resalt, this change implied that a criminal need not admit to all his crimes in order to receive the reduction.15

Despite the Sentencing Commission's attempt at clarification, the controversy surrounding the meaning of Rule 3E1.1 remains today, if in different form. Indeed, the new debate centers around the Application Notes following the Rule. One of the objective indicia of acceptance of responsibility is a criminal defendant's "voluntary termination or withdrawal from criminal conduct or associations."16 This factor focuses on whether a criminal defendant commits a crime between the time of his conviction or guilty plea and the time of his sentencing. …