A Formulaic and Impersonal Approach to Dispensing Justice
© 1999 Nevada Lawyer
Shari L. Kaufman, Esq.
On October 12, 1984, President Ronald Reagan signed the Comprehensive Crime Control Bill into law. This bill included the Sentencing Reform Act of 1984, which called for the creation of the United States Sentencing Commission. The Sentencing Reform Act mandated that the commission create a set of sentencing guidelines to which every federal court judge would be bound. The avowed purpose of these "guidelines" was to ensure that like defendants committing like offenses would be treated alike, without any undue harshness or leniency. This was a response to the fact that, based on empirical evidence, the creators of the guidelines believed that dissimilar sentences were imposed by different judges faced with similar cases.
These guidelines initially were heralded as a measure to ensure uniformity in sentencing in the federal system, regardless of which district the defendant was sentenced in or which judge imposed the sentencing. In truth, these "guidelines" are essentially not guidelines, but a mandated formula for sentencing.
The guidelines as they currently exist and are applied in federal courts have created significant problems. Judges no longer are allowed to do what they believe is right or just. They now are required in most instances to determine an appropriate sentence for an individual offender by using a stringent mathematical formula reflecting the type of crime committed, the defendant's role in the crime, and the defendant's criminal history. The guidelines have caused unprecedented litigation in federal appellate courts. Even the most seasoned federal practitioners question their ability to wade through the morass of guideline decisions to determine what, if any, enhancements or departures may apply. The guidelines have further resulted in sentences that disproportionately incarcerate those convicted of crimes involving narcotics and immigration offenses, while allowing many white-collar offenders to achieve probationary sentences.
Judges lose discretion
When judges are compelled to use the guidelines, they are left with little or no discretion concerning the actual sentence to be imposed. The guidelines establish a narrow sentence that must be followed by a judge absent a compelling reason to depart downward or upward from the guidelines. The statutory authority for judges to depart from the guidelines is found at 18 USC 3553(B). The guidelines allow for departures in basically three circumstances.
In the first instance, the government requests a departure under USSG § 5K1.1, based on a defendant's "substantial assistance to authorities." This departure must be requested by the prosecutor. 1 Without the government's motion for a downward departure pursuant to USSG 5k1.1, judges are powerless to depart for substantial assistance to authorities, even if they believe the defendant substantially assisted. Without a motion filed by the government concerning a defendant's cooperation, the court may consider cooperation only as a mitigating factor in determining which sentence within the applicable guideline range to impose. 2
The guidelines also allow for either an upward or downward departure if the judge determines that an individual's criminal history score calculated under the sentencing guidelines either overstates or understates the seriousness of the defendant's past criminal conduct. 3
The vast majority of requests for downward departure made by non-cooperating defendants fall within the parameters of USSG § 5K2.0. This guideline allows a judge to depart downward if he finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 4 Courts have determined that departures under this section are warranted for aberrant behavior, 5 extraordinary family circumstances, 6 and a combination of factors not considered by the sentencing guidelines. 7 Courts typically have declined to depart based on mental retardation, 8 age and illness, 9 and post-offense rehabilitation. 10
The guidelines themselves Â— and the court's interpretation of the guidelines Â— have created a barrage of litigation concerning a myriad of issues. For instance, counsel and judges can spend a great deal of time searching for appropriate case law to support the proposition that a particular offender is deserving of a four-level reduction in base offense level for a minimal participant rather than a two-level reduction for a minor participant. Likewise, litigation concerning the applicability of a two-level "abuse of a position of trust" enhancement takes significant time at sentencing hearings in federal courts throughout this country. Whether a particular fact is a ground for a downward departure is subject to numerous judicial interpretations.
The complex litigation and disputes concerning guideline issues, departures, and sentencing do not end at the district court level. Following the sentencing in a federal matter, the government and/or the defendant can appeal any application of the guidelines believed to be incorrectly applied. Appellate courts are burdened with significant litigation concerning interpretations and applications of the guidelines.
The advent of the guidelines also has made it difficult for those members of the private criminal defense bar who may appear infrequently in federal court to feel comfortable accurately predicting the sentence a client should receive. Unless practitioners have significant time and resources to keep abreast of the numerous guideline decisions that are decided by individual circuit courts of appeal on a weekly (if not daily) basis, it may be difficult for them to feel comfortable giving clients advice on what type of sentences they are likely to receive. While it is true that monthly publications exist to provide federal practitioners with a synopsis of recent guideline decisions, 11 often a review of those publications shows marked differences both between and within the circuits in interpreting similar enhancements, departures, and issues involving guideline calculations. A recent issue of the Federal Sentencing Guide, a monthly publication, lists 33 decisions, each of which interprets some aspect of the sentencing guidelines. Even after doing the appropriate research and carefully examining a particular issue, federal practitioners may find there are no definitive answers concerning the application of specific guideline enhancements.
Numerical offense levels and illogical sentences
In promulgating the guidelines, the commission was empowered to create a numerical offense level for each federal offense charged. The alleged goal was to assess the seriousness of each individual crime and to assign a base offense level to it. These base offense levels could then be increased or decreased depending upon the criminal conduct of the particular individual who committed the crime. For example, in a robbery case, the base offense level would be a 20, 12 whereas if the robbery involved a financial institution, the base offense level would be increased by two levels. If the loss to the bank exceeded $10,000 but was less than $50,000, the base offense level would be increased by an additional level. If someone suffered bodily injury during the bank robbery, the base offense level would be increased an additional two levels.
Considering the aforementioned example, it would appear that the guidelines for individual offenses increase in severity based on the seriousness of the offender's conduct. While it is true that individual guidelines for particular conduct can be increased or decreased based in part on the offender's conduct, little, if anything, can be done to change the starting base offense level chosen by the commission for particular types of crimes. For example, even minimal participants in narcotics cases face extensive periods of incarceration due to the high base offense level mandated for narcotics offenses. A comparison of the base offense levels for differing types of offenses causes one to wonder whether the numerical assessment weighing the seriousness of the offense actually reflects the seriousness of the individual offense, or is skewed to ensure that certain types of offenders rarely face prison time, while others are mandated to face lengthy prison terms.
To illustrate, consider an individual with a prior conviction for possession with intent to distribute a controlled substance for which he received a probationary sentence, who is now charged in the federal system with wire fraud. This offender has been arrested for his involvement in a large-scale telemarketing endeavor. During the time he was telemarketing/committing wire fraud, he managed to fraudulently convince unsuspecting individuals to send him $500,000. These individuals, who believed they would receive a substantial award, got little or nothing in return for their money. Under the sentencing guidelines, this individual is likely to be assessed a base offense level of six, 13 a nine-level enhancement for loss of more than $350,000 and a two-level enhancement for a scheme to defraud more than one victim. The offense level is reduced three levels if the defendant chose to plead guilty. The adjusted offense level for this offender who committed $500,000 in wire fraud could be as low as 14. Based on his prior criminal history, this offender would be likely to receive a sentence of 15 to 21 months.
If that same offender was an illegal alien who was deported following his drug conviction, re-entered this country and is prosecuted for illegal reentry after deportation, 14 he will be subjected to a much harsher sentence. His base offense level would be eight. 15 It would be increased 16 levels if he had been previously convicted of an aggravated felony (the prior drug offense). The adjusted base offense level is 24. With a three-level reduction if a plea of guilty is entered, the guideline range would be 37 to 46 months. The guidelines mandate that the sentence for an individual illegally re-entering this country after deportation is twice as long as the sentence of the telemarketer who stole half a million dollars.
The illogical sentences mandated by the guidelines do not end with illegal aliens. The disparity in crimes and the corresponding sentences required by the guidelines are vast. The base offense level for possession with intent to distribute 150 grams of crack cocaine is a 34. The base offense level for committing second-degree murder is a 33. Who among us can rationalize why the Guideline Commission created a numerical assessment that mandates a harsher sentence for possessing 150 grams of narcotics than stabbing someone to death? Is it possible that the guidelines as they currently exist do not truly assess the particular seriousness of an offense, but rather pander to society's fear Â— whether that be the influx of particular drugs in our communities or the presence of large numbers of illegal aliens within our borders?
The guidelines have taken away from judges the ability to look at the individual and the crime committed, and to make a judicial assessment about how best to protect the community and rehabilitate the offender. They have limited a judge's ability to use life experience in coming to an appropriate disposition for the offender.
If the guidelines actually were "guidelines" rather than mandated mathematical calculations, judges could return to the job they are well suited to do Â— namely, judge each case and each offender individually. Judges would be allowed to weigh the family circumstances and positive aspects of a particular offender. Additionally, they could determine whether an alternative to incarceration might be appropriate for some first-time narcotics offenders. Judges could appropriately assess the need for lengthy incarceration and weigh the punitive measure of the sentences they pronounce.
An impersonal mathematical approach
Judges are put on the bench to judge. The guidelines force them to assess individuals based upon mathematical calculations. The guidelines take an impersonal mathematical approach to one of the most significant jobs in the justice system. Federal judges deserve more authority than that. They can be trusted to weigh society's need to be protected against a defendant's need to be rehabilitated. They can be trusted to judge each case on its individual merits and punish accordingly. Given the proper information concerning an offender, his background, and the offense committed, federal judges can come to a just and fair sentence without resorting to an impersonal mathematical calculation.
The United States sentencing guidelines as a "guide" are useful tools for all those involved in the federal criminal justice system. As a mandated set of rules, however, they have created a plethora of litigation and fall short of the goal of uniformity in sentencing they were designed to achieve.
1 United States v. Wade, 504 U.S. 181(1992).
2 United States v. Bruno, 897 F. 2d 691(3rd Cir. 1990).
3 United States Sentencing Guidelines § 4 A1.3.
4 18 U.S.C. § 3553(b).
5 U.S. v. Fairless, 975 F. 2d 664(9th Cir. 1992)
6 U.S. v. Shoupe, 929 F. 2d 16 (3rd Cir. 1991)
7 U.S. v. Koon, 516 U.S. 1026 (1995).
8 U.S. v. Martin, F. 2d 162 (9th Cir. 1991).
9 U.S. v. McKinney, 53 F. 3d 664 (5th Cir. 1995).
10 U.S. v Martin, 938 F. 2d 162 (9th Cir. 1991).
11 See, c.f., Federal Sentencing Guide by Roger W. Haines and Jennifer Woll.
12 United States Sentencing Guideline § 2B3.1.
13 United States Sentencing Guideline § 2F1.1.
14 8 USC § 1326(B).
15 United States Sentencing Guideline § 2L1.2.
Shari L. Kaufman is an assistant federal public defender for the District of Nevada. She is a member of both the Nevada and New York bars. Prior to coming to Nevada, she worked for both the Juvenile Rights Division and Criminal Defense Divisions of the Legal Aid Society of New York. She received her J.D. in 1985 from Tulane University School of Law.