Foreword: You Be the Judge: The Success of Fifteen Years of Sentencing under the United States Sentencing Guidelines. (Perspectives on the Federal Sentencing Guidelines and Mandatory Sentencing)

By Behre, KirD.; Ifrah, A. Jeff | American Criminal Law Review, Winter 2003 | Go to article overview

Foreword: You Be the Judge: The Success of Fifteen Years of Sentencing under the United States Sentencing Guidelines. (Perspectives on the Federal Sentencing Guidelines and Mandatory Sentencing)


Behre, KirD., Ifrah, A. Jeff, American Criminal Law Review


For the past fifteen years, federal judges, prosecutors, and criminal defense lawyers and their clients have labored under a complex federal sentencing structure that completely changed the way in which federal sentences are meted out. As the fifteen-year anniversary of the Federal Sentencing Guidelines approaches, the unabated debate continues regarding the fairness and success of the Guidelines system.

One of the major objectives of the Sentencing Reform Act of 1984 (1) was to eliminate unwarranted sentencing disparity by establishing a consistent system of federal sentencing. (2) Congress created the United States Sentencing Commission (3) to establish such a system, and in 1988 the Commission promulgated the United States Sentencing Guidelines. The current version of the Guidelines is over 500 pages long and the product of more than 600 amendments over the past fifteen years. The Guidelines contain lengthy and complex provisions that reflect the Commission's attempt to cover every relevant, aggravating and mitigating circumstance or factor that a judge likely would consider in sentencing a criminal defendant. Thus, by applying the facts of a case and the defendant's criminal history and personal characteristics to the Guidelines provisions, the judge arrives at an offense level from which a very narrow sentencing range is determined.

In order to assess the effectiveness of the Guidelines, it is necessary to define the standards for measuring success. According to the Guidelines themselves, the Sentencing Commission had three objectives in creating the new system regime. First, Congress sought "honesty in sentencing"

   to avoid the confusion and implicit deception that arose out of the
   preguidelines sentencing system which required the court to impose
   an indeterminate sentence of imprisonment and empowered the parole
   commission to determine how much of the sentence an offender
   actually would serve in prison. (4)

Second, Congress "sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders." (5) Third, Congress sought "proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity." (6)

There is little doubt that the adoption of the Guidelines has helped to promote honesty in sentencing, the first of the three objectives noted above. Whether the Guidelines have been successful in achieving uniformity and proportionality in sentencing, however, is a subject of great debate. (7) Achievement of these two objectives has been severely undermined by the growing number of cases in which judges do not impose the sentence that is calculated under the Guidelines. Such "departures" from the Guidelines are permissible, but are meant to be limited to truly exceptional cases. Thus, the Guidelines permit deviation from the sentencing guideline range only if the sentencing court finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." (8) Put another way, only if a case is outside "the heartland" of Guidelines cases may a sentencing court depart from the rigid Guidelines formula. (9)

Can a sentencing system that is built upon the laborious application of points to arrive at a sentencing level and range be considered a success when more than one-third of all defendants do not receive the sentence that the Guidelines require? Is a procedure that exempts more than one-third of all defendants from the practical impact of that system a system at all? Have the exceptions--the departures--been the death knell to the uniformity and lack of disparity Congress sought?

Nationally, departures from the Guidelines' sentencing range have increased steadily over the past five years and are now granted in approximately thirty-six percent of all cases.

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