Leonardo Angiulo: The Evolution of Federal Sentencing Guidelines
Monday, March 24, 2014
During the sentencing phase of a case in Federal court the parties and the judge speak, in part, about the applicable sentencing guidelines. The guidelines themselves are essentially formulas for how long a person should serve for a particular crime based on certain circumstances such as the weight of drugs involved, the use of weapons, existence of any mitigating factors and prior criminal involvement. When I say “should,” that is to say the guidelines are standards drafted by the United States Sentencing Commission also known as the USSC. The USSC is an independent group that is part of the judicial branch and organized in accordance with section 991 of title 28 of the United States Code. The group is made up of appointees and judges as well as the Attorney General acting as a non-voting member of the commission.
It's original formation came by legislative action back in 1984 and, as outlined in http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title28-chapter58&saved=%7CKHRpdGxlOjI4IHNlY3Rpb246OTk0IGVkaXRpb246cHJlbGltKSBPUiAoZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGUyOC1zZWN0aW9uOTk0KQ%3D%3D%7CdHJlZXNvcnQ%3D%7C%7C0%7Cfalse%7Cprelim&edition=prelim" target="_blank">28 USC 994, was intended to provide guidelines and policy statements for sentences unaffected by the race, sex, national origin, creed and socioeconomic status of offenders. The current guidelines manual published by the USSC includes a policy statement with basic objectives of ensuring the sentences imposed by courts would be actually be served, consistency in sentences among similar crimes and defendants, and proportionally appropriate sentences based on the nature of crimes. That same policy statement on page two of the guidelines manual includes the overarching theme of enhancing “the ability of the criminal justice system to combat crime through an effective, fair sentencing scheme.”
Implicit in this structure is the potential for social policies to impact the scheme. Subsequent offenders, for example, are subject to longer sentences under the theory that persons who persist in deviant behavior should suffer increasingly severe punishments in an effort to penalize effectively and encourage rehabilitation. Like any policy, however, sometimes it works better than others. One of the benefits of the USSC's organization is that it is flexible enough to allow amendment of guidelines when appropriate.
An example of amendments from the recent past include the Fair Sentencing Act of 2010 that famously addressed the 100:1 ratio disparity in punishment for crack cocaine and powder cocaine offenses. This amendment addressed a policy that, according to the American Civil Liberties Union https://www.aclu.org/drug-law-reform/president-obama-signs-bill-reducing-cocaine-sentencing-disparity " target="_blank">press release from August 3, 2010, represented a sentencing scheme based on “based on assumptions about crack cocaine which are now known to be false. . . [and] The impact of the disparity fell disproportionately on African-Americans.” The Fair Sentencing Act of 2010, which enjoyed bipartisan support including both Presidents George W. Bush and Obama, resulted in several important modifications including lowering the ratio between powder and crack penalties to 18:1, eliminating mandatory minimum sentences for simple possession of crack cocaine, and increasing emphasis on the individual defendant's role in any criminal enterprise for both aggravating and mitigating purposes.
The agenda for a recent public hearing held by the http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20140313/Agenda.htm" target="_blank">United States Sentencing Commission on March 13, 2014 presents drug sentencing guidelines generally as a renewed topic of consideration. That law enforcement and the defense bar seem to agree, at some level, that downward modification of the guidelines is appropriate is found in Attorney General Holder's press release of March 13, 2014. In that release the AG supports the USSC's proposed lowering of certain sentences because the amendment “would have the effect of modestly reducing guideline penalties for drug trafficking offenses while keeping the guidelines consistent with current statutory minimums - and continuing to ensure tough penalties for violent criminals, career criminals, or those who used weapons when committing drug crimes.”
Of note is that these downward amendment of guideline sentences come at a time of particularly high rates of incarceration in America. According to an article published by the Population Reference Bureau in August of 2012 the United States had the highest incarceration rate in the world for the previous ten years. As referenced in a chart generated by the Prison Policy Initiative that rate includes people held in local, state and federal facilities. While Federal policies resulting in potentially shorter sentences may not affect those held in state prisons it may inform decisions made by local legislatures about their own sentencing policies.
As Attorney General Holder states in the previously cited press release, there is a certain balance that the sentencing commission is seeking to accomplish. On the one hand is the need for the effectiveness of law enforcement. On the other, the need for proportionally appropriate punishments and the opportunity for meaningful rehabilitation.
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