By the Book? the New Regime of Sentencing in the Federal Courts

Article excerpt

[L]egal history shows . . . periodic waves of reform during which the sense of justice, natural law, or equity introduces life and flexibility into the law and makes it adjustable to its work. In the course of time, however, under the social demand for certainty, equity gets hardened and reduced to ridig rules, so that, after a while, a new reform wave is necessary.

-- Morris Raphael Cohen

Law and the Social Order 261 (1933)

On November 1, 1987, two centuries of sentencing practice in the federal courts came to an abrupt end. A regime of sentencing guidelines prescribed by a federal administrative agency went into effect. The purpose of the new regime was to divest the independent federal judiciary of nearly all authority to determine criminal sentences. Federal judges would still be the formal locus through which criminal sentences would be pronounced. But the new regime sought to strip them of power to determine the purposes of criminal sentencing, the factors relevant to sentencing, and the proper type and range of punishment in particular cases. Henceforth, these powers would rest with a newly formed bureaucracy, the United States Sentencing Commission, located in Washington, D.C.

The Sentencing Commission was established by the Sentencing Reform Act of 1984 (Pub. L. No. 98473, 98 Stat. 1987 [1984]) - legislation originally introduced by Senator Edward M. Kennedy, passed by nearly unanimous votes in both the Senate and the House, and enthusiastically signed into law by President Ronald Reagan. The 1984 Act sought to achieve "certainty and fairness" in the federal sentencing process by eliminating "unwarranted disparity" among sentences for similar defendants committing similar offenses (S. REP. No. 98-225 at 52, 56 [19843). Two hallmarks of this legislation were the elimination of parole and, for the first time, the provision for appellate review of sentences. These achievements have been overshadowed, however by the most far-reaching and dramatic provision of the Sentencing Reform Act: the charge to the newly established Sentencing Commission to develop and implement a system of mandatory sentencing guidelines.

The federal Sentencing Guidelines are the rules promulgated by the Sentencing Commission for imposition of criminal sentences by federal district judges. As of 2001, the Commission's much-amended Sentencing Guidelines Manual consists (including appendices) of more than one thousand pages of technical regulations, weighing more than four pounds -- which may be usefully compared to, for example, the statutes and regulations (including appendices) of the Internal Revenue Service, whose four thousand pages, accumulated over nearly ninety years, weigh in at seventeen pounds. Thus, the Guidelines are almost a parody of the overly detailed, inflexible legal structures that lawyer and author Philip K. Howard criticized in his 1994 best-selling book, The Death of Common Sense.

The centerpiece of the Guidelines is a 258-box grid that the Commission calls the Sentencing Table. The horizontal axis of this grid, entitled "Criminal History Category," adjusts severity on the basis of the offender's past conviction record. The vertical axis, entitled "Offense Level," reflects a base severity score for the crime committed, adjusted for those characteristics of the defendant's criminal behavior that the Sentencing Commission has deemed relevant to sentencing. The Guidelines, through a complex set of rules requiring significant expertise to apply, instruct the sentencing judge on how to calculate each of these factors. The box at which the defendant's Criminal History Category and Offense Level intersect then determines the range within which the judge may sentence the defendant. The sentencing range in each box is small, the highest point being twenty-five percent more than the bottom point.

The Sentencing Reform Act provides that there be two circumstances in which a judge may "depart" from the calculated Guidelines range. …