Everything Old Is New Again:
Fixing Sentencing by Going Back
to First Principles
Mary Price*
I.
INTRODUCTION
Every day in a courtroom somewhere in this country, a judge is forced to
break the law. Indeed, federal judges routinely ignore the parsimony
mandate in 18 U.S.C. § 3553(a). This statute commands that a judge
impose a sentence no greater than necessary to comply with the ends of
punishment. In their defense, however, judges cannot help but break this
law; many of them would be the first to say so, and, in fact, they were.1
More than fifty years ago, in September 1953, the Judicial Conference of
the United States passed a resolution that opposed the enactment of laws
that require judges to hand down mandatory minimum sentences.2
Judges must consult two systems before pronouncing a sentence:
mandatory minimums, which are set by Congress; and sentencing
guidelines, promulgated by the U.S. Sentencing Commission. Until very
recently sentencing guidelines were also mandatory, and the two systems
operated to tie judges' hands at sentencing. Mandatory sentencing rules
rendered superfluous the parsimony command until the Supreme Court, in
a landmark 2005 opinion, breathed new life into the promise of judicial
discretion by ending mandatory guidelines.' However, mandatory
*Mary Price is vice-president and general counsel of Families Against Mandatory
Minimums. This is an extension of remarks Price made at the New England Journal on
Criminal and Civil Confinement's symposium, High Crimes, in November 2008.
1.
See, e.g., DAVID ZLOTNICK, REPUBLICAN APPOINTEES AND JUDICIAL DISCRETION:
CASE STUDIES FROM THE FEDERAL SENTENCING GUIDELINES ERA 6 (2007),
http://faculty.rwu.edu/dzlotnick/OSI-Report-june22007.pdf.
Mandatory Minimum Sentences: Hearing Before the Subcomm. on Crime,
2.
Terrorism and Homeland Security of the H. Comm. on the Judiciary, 111 th Cong. 8 (2009)
(statement of the Honorable J. Julie E. Carnes, Chair of the Criminal Law Comm. on behalf
of the Judicial Conference), available at http://judiciary.house.gov/hearings/pdf/Cames
090714.pdf. [hereinafter Carnes]
See United States v. Booker, 543 U.S. 220 (2005).
3.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 36:75
minimum laws remain to this day and the advisory guidelines are under
attack from some quarters for ostensibly allowing too much judicial
discretion.'
Federal law has long recognized that a healthy system of justice requires
a judiciary free to exercise reasoned discretion. There is no place for
mandatory minimums or mandatory guidelines in a criminal justice system
that seeks to treat defendants with reasoned judgment. Rather, the court is
in the best position to evaluate the defendant standing to be sentenced, in
light of the crime and mitigating or aggravating factors. Advisory
guidelines should reflect appropriate suggestions for sentence length and
provide guidance to help cabin undue disparity, but be flexible enough to
permit proportionality. Recent discussions' have focused on the need to
reform criminal sentencing because sentences are too long, too many
people are incarcerated who should not be, corrections costs are
overwhelming state budgets, and mandatory minimums are unduly rigid
and drive over-incarceration. This article suggests two solutions that could
vastly improve the fairness of criminal sentencing:
1. The U.S. Congress should repeal mandatory minimums; and
2. The U.S. Sentencing Commission should comply with
underutilized and long-ignored directives in the Sentencing
Reform Act that, if followed, would restrain the instinct to
increase recommended sentence lengths.
II. HISTORY AND CONSEQUENCES OF THE SENTENCING REFORM ACT
The law that judges find they cannot follow is one provision of the
Sentencing Reform Act of 1984 (SRA); the revolutionary outcome of a
decade of study, proposals, and congressional compromise. The most
famous product of the SRA was the creation of a sentencing commission
and its charge to produce and update sentencing guidelines that would
channel judicial discretion.' Congress was responding to concerns that,
lacking such guidance, judges were exercising discretion in ways that led to
unwarranted sentencing disparity among similarly situated defendants. 7
Calling sentencing disparity, particularly disparity suspected of reflecting
4.
See, e.g., Regional Hearing on the State of FederalSentencing: Before the United
States Sentencing Commission (2009) (statement of Patrick Fitzgerald, United States
Attorney, Northern District of Illinois 3-5), available at http:/lwww.ussc.gov/AGENDAS/
20090909iFitzgeraldjtestimony.pdf.
5. See infra Part V.
6. 28 U.S.C. §§ 991(b), 994(a) (2006).
7.
See U.S.
SENTENCING COMM'N,
MANDATORY
MINIMUM
PENALTIES
IN THE
CRIMINAL JUSTICE SYSTEM, 16 (1991), available at http://www.ussc.gov/rCongress/
MANMIN.PDF [hereinafter MANDATORY MINIMUM REPORT].
2010]
EVERYTHING OLD IS NEW A GAIN
personal biases, "shameful,"' Congress identified three objectives of the
new system that was to include commission-designed judicial guidelines:
*
Certainty and honesty in sentencing--Congress abolished
parole and indeterminate sentencing;
*
Uniformity in sentencing--Congress limited the interval
between the top of the recommended range and the bottom to
six months or twenty-five percent for similarly situated
offenders; and
*
Proportionality in sentencing--Congress directed that
recognize differences among
sentencing rules should
9
defendants and offenses.
The creation of the U.S. Sentencing Commission and its adoption of the
Federal Sentencing Guidelines, while hardly well known or understood,
nonetheless for years eclipsed the crowning achievement of the SRA: 18
U.S.C. § 3553(a). This elegant statute is the roadmap of judicial discretion
at the sentencing phase. It contains much guidance but only a single
mandate to the court at sentencing: impose a sentence "sufficient but no
greater than necessary" to:
*
Reflect the seriousness of the offense, promote respect for the
law, and provide just punishment;
*
Provide adequate deterrence;
*
Protect the public from further crimes of the defendant; and
*
defendant with training, care, and correctional
Provide the
10
treatment.
The statute outlines a
ultimate sentence. They
offense, the history and
sentences available, the
set of considerations for judges in reaching the
include the nature and circumstances of the
characteristics of the defendant, the kinds of
need to avoid unwarranted disparity, and the
8.
S. Rep. No. 225, 98th Cong., 1st Sess. 65 (1983).
9. MANDATORY MINIMUM REPORT, supra note 7. For an excellent discussion
collecting research and describing the evolution of attitudes towards judicial discretion and
their correlation with attitudes respecting the purposes of punishment, see U.S. SENTENCING
COMM'N, FIFTEEN YEARS OF GUIDELINE SENTENCING: AN ASSESSMENT OF HOW WELL THE
FEDERAL CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE GOALS OF SENTENCING REFORM 1-3
(2004), available at http://www.ussc.gov/15-year/15year.htm [hereinafter FIFTEEN YEAR
REPORT]. See generally KATE STITrI & JOSE CABRANES, FEAR OF JUDGING
(1998) (describing
how judicial discretion at sentencing was limited by the provisions of the SRA, but has
decreased over the years).
10.
18 U.S.C. § 3553(a)(2) (2006).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 36:75
guidelines and policy statements promulgated by the Sentencing
Commission.1"
Here, then, was a statute designed to guide-even channel-judicial
discretion while providing for a balancing of proportionalized sentences,
individualized consideration, and the avoidance of insupportable disparity
among defendants. It directed judges to the Federal Sentencing Guidelines,
conceived to mark a sentencing range considered appropriate for particular
offenses and nuanced enough to account for some individual differences in
offense and offender.1" As originally conceived, the SRA, in § 3553(a),
also directed courts to undertake their own inquiry, examining not just the
guidelines, but also the individual, the offense, and the variety of
sentencing options, and only then design a sentence that would be no
greater than necessary to comply with the purposes of punishment.13
The most remarkable feature of this statute is the mandate of parsimony:
the core congressional command that the sentence not exceed that
necessary to comply with the purposes of punishment. The mandate rests
on a principle with deep roots in the soil of American jurisprudence. The
Founding Fathers were well aware of the principle of parsimony; it is a
concept that traces back at least to Montesquieu and was articulated by the
influential Italian criminologist, Cesare Beccaria:
Every punishment, which does not arise from absolute necessity, says
the great Montesquieu, is tyrannical. A proposition which may be made
more general thus. Every act of authority of one man over another, for
which there is not an absolute necessity, is tyrannical. It is upon this
then, that the sovereign's right to punish crimes is founded; that is, upon
the necessity of defending the public liberty, entrusted to his care, from
as
the usurpation of individuals; and punishments are just in proportion,
14
the liberty, preserved by the sovereign, is sacred and valuable.
Beccaria was also influenced by the philosopher Rousseau, whose theory
of social contract taught that each person, in consenting to be governed,
"would choose to put into the public stock the smallest portion possible" of
his liberty, "as much only as was sufficient to engage others to defend it." 5
Punishment that exceeded the amount needed to preserve public order and
security was "abuse, not justice." 16
These thinkers and Jeremy Bentham, who wrote that "punishment ought
13.
18 U.S.C. § 3553(a)(1), (3), (5), (6).
18 U.S.C. § 3553(a).
Id.
14.
CESARE M. BECCARIA, AN ESSAY ON CRIMES AND PUNISHMENTS 20 (Adolph Caso
11.
12.
ed., 1984).
15. Id. at 20-21.
16. Id. at21.
20101
EVERYTHING OLD IS NEW A GAIN
in no case to be more than what is necessary to bring it into conformity
with the rules here given,"' 7 were familiar to Thomas Jefferson and John
who undertook
Adams, and their influence carried forward to the reformers
i8
SRA.
the
in
culminated
that
effort
ten-year-long
the
The parsimony command, together with the menu of considerations set
out for the court in § 3553(a), assumes and supports the use of judicial
discretion. Section 3553(a) compels careful consideration about why we
punish and what should go into the decision about the form and length of
punishment.
The mandate of parsimony was thus well-credentialed by the time it
became enshrined in the remarkable sentencing statute enacted by Congress
in 1984. It almost did not make it into the SRA. As originally conceived by
Sen. Edward Kennedy (D-MA), the guidelines would be advisory, and only
one of several sentencing factors courts would take into account. 19 But
suspicion of judges and judicial discretion-aptly called "fear of judging"
by Professor Kate Stith and Judge Jose Cabranes 2 0-- drove the addition of
an amendment in 1978. This addition, despite efforts over the next several
years to restore some semblance of judicial discretion, ensured that the
Sentencing Guidelines would be mandatory, barring an unusual factor in
the case that warranted a departure from the guideline sentence.
The 1978 amendment was the basis for subsection (b) of 18 U.S.C. §
3553. It provides: ,
The court shall impose a sentence of a kind, and within the range
[required by the guidelines] unless the court 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.2 1
It was only in the final pass of the SRA through the Senate, years after
the first discussion of reform legislation, that Sen. Charles Mathias (D-MD)
managed to secure the parsimony mandate.22 It seems remarkable (perhaps
JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES AND MORALS OF
17.
LEGISLATION 182 (Hafner Press 1986) (1781).
18.
See generally Brief of Families Against Mandatory Minimums as Amicus Curiae
in Support of Petitioner at 5-11, Gall v. UnitedStates, 128 S. Ct. 586 (2007) (No. 06-7949).
19.
Edward M. Kennedy, Toward a New System of Criminal Sentencing: Law with
Order, 16 AM. CRIM. L. REv. 353, 374 (1979).
STITH & CABRANEs, supra note 9.
20.
18 U.S.C. § 3553(b) (2006).
21.
130 CONG. REc. 29, 870 (1984) (codified as 18 U.S.C. § 3553(a) (2006)); see also
22.
John Conyers, UnresolvedIssues in the FederalSentencing Reform Act, 32 FED. B. NEWS &
J. 68, 69 (1985) (attributing parsimony mandate to Sen. Mathias).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 36:75
prescient, given how limited the role of judges at sentencing would become
under the guidelines) that Sen. Mathias would insist on the clear command
to the courts. Today, judges (and defendants) everywhere owe him a great
debt. But in 1984, the parsimony mandate he insisted on including, as well
as the nuanced considerations of offense and offender embodied in
subsection (a) of § 3553, were rendered nearly superfluous by subsection
(b) of the same statute and by the adoption of mandatory minimum
sentences.
III. MANDATORY MINIMUMS
The other major event that ensured that § 3553(a), with its sentencing
roadmap and parsimony mandate, would be shelved, was the adoption of
laws whose penalties included statutory mandatory minimums. Mandatory
minimums take a charge-centered approach to sentencing. Conviction for
certain crimes, generally those involving drugs and guns, will result in a
pre-determined and generally inescapable sentence.23 They were considered
necessary to deter would-be criminals, incapacitate offenders, and promote
uniformity of punishment for similarly situated defendants.24 As originally
designed, the only way a defendant could receive a sentence below the
mandatory minimum was if he cooperated to the satisfaction of the
prosecution, who held the power to move the court for a downward
departure for "substantial assistance. 2 5
The modem-day mandatory-minimum era was ushered in on the heels of
the death of basketball star Len Bias from a cocaine overdose. Congress
wasted no time in responding to the high-profile death by spouting toughon-crime solutions to the drug war. The House Judiciary Committee passed
the laws in less than one week, without hearings, debate, or study.26 Under
the drug mandatory minimums, Congress sought to punish "serious"
traffickers with minimum sentences of five years and "major" traffickers
with ten-year minimums.
In 1988, Congress extended mandatory minimums to reach conspirators
as well as principals, ensuring that mandatory minimums would apply with
23.
See, e.g., 21 U.S.C. § 841 (setting out drug offenses and penalties); 18 U.S.C. §
924(c) (describing certain gun offenses and penalties).
24. See MANDATORY MINIMUM REPORT, supra note 7, at 12-13 (referring to supported
reasoning in favor of mandatory minimums).
25. 18 U.S.C. § 3553(e) (2006).
26.
Molly M. Gill, FAamms AGAINST MANDATORY MINIMUMS, Correcting Course:
Lessonsfrom the 1970 Repeal of Mandatory Minimums, http://www.famm.org/Repository/
Files/8189 FAMMBoggsAct-final.pdf.
27. H.R. REP. NO. 99-845, pt. 1, at 16-17 (1986).
EVERYTHING OLD IS NEW A GAIN
2010]
equal force to peripheral players in drug conspiracies. 28 The horror stories
began piling up, of girlfriends and lowly couriers sentenced to the same or
greater sentences than the heads of drug conspiracies, whose ability to
name their underlings resulted in substantial assistance departures. 29 In
partial mitigation, Congress enacted the so-called "safety valve" in 1994,
providing relief from mandatory minimums to certain low-level,
nonviolent, first-time drug offenders who supply the government with all
the information about their offense. 30 The safety valve directs judges to
sentence a defendant according to the Sentencing Guidelines when the
defendant meets the strict qualifying criteria. Today, roughly a quarter of
all defendants subject to mandatory minimums benefit from the safety
valve.3 1
Mandatory minimum sentencing is plagued with problems and has led to
extraordinary injustice. Intended to, among other things, reduce
unwarranted disparity among similarly situated defendants, it has instead
produced both unwarranted uniformity and disparity. Mandatory
minimums rely on a limited number of factors to capture the entire measure
of blameworthiness. For example, the type and weight of a drug is alone
sufficient to trigger a mandatory minimum sentence. 32 The type and
quantity of drugs are, however, poor proxies for culpability, because very
different offenders, with varying degrees of culpability, can be subject to
the same mandatory minimum sentence. This unwarranted uniformity
means that a drug "mule" carrying a backpack filled with drugs on several
occasions, for relatively small amounts of remuneration, receives the same
sentence as the drug kingpin, who arranges the trips and enjoys enormous
profits.33 In its 1991 study of mandatory minimums, the United States
Sentencing Commission called the exaggerated role of drug quantity the
"tariff' effect, and criticized it for prohibiting the consideration of
traditional sentencing factors.34
28.
21 U.S.C. § 846 (2006); see Mary Price, Mandatory Minimums in the Federal
System: Turning a Blind Eye to Justice, 31 HuM. RTs. MAG. 1 (Winter 2004).
29.
See 18 U.S.C. § 3553(e) (2006); see also FAMILIES AGAINST MANDATORY
MINIMUMS, PROFILES OF INJUSTICE: FEDERAL PROFILES, http://www.famm.org/Profilesof
InjusticelFederalProfiles.aspx (last visited July 28, 2009) (detailing individual stories of
people subject to lengthy sentences due to mandatory minimum sentencing rules).
30.
See 18 U.S.C. § 3553(f) (2006).
31.
U.S. SENTENCING COMM'N, OVERVIEW OF STATUTORY MANDATORY MINIMUM
8, tbl.4 (July 10, 2009), available at http://www.ussc.gov/MANMIN/manmin.pdf [hereinafter MANDATORY MINIMUM OVERVIEW].
32.
See, e.g., 21 U.S.C. § 841(b)(l)(A)(i)-(viii) (2006) (describing mandatory
minimum penalties for a range of drug offenses).
33.
MANDATORY MINIMUM REPORT, supra note 7, at 26.
34.
Id.
SENTENCING
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 36:75
The system has also had the effect of transferring discretion from
judicial to prosecutorial control.35 Prosecutors control what crime to charge
and which sentencing factors to bring to the court's attention, whether to
drop a charge or "fact bargain" sentencing elements, and whether to charge
a crime that carries a mandatory minimum sentence or one that does not.
All of those decisions are made away from the public record and are
36
unreviewable.
Unwarranted disparity is one of the hallmarks of the much-maligned
"100-to-l" disparity in federal sentencing between crack and powder
cocaine. It subjects people convicted of possession, or possession with
intent to distribute, five grams of crack cocaine to the same five-year
mandatory minimum meted out to a powder cocaine dealer who handles
one hundred times that amount, or five hundred grams. 37 The Sentencing
Commission has routinely published reports decrying the widely different
sanctions for two forms of the same drug.38 It has also brought to light (and
condemnation) the extreme racial disparity in sentencing black defendants
(the overwhelming majority of crack defendants) to longer sentences
than
39
their powder cocaine counterparts, who tend to be white or Hispanic.
Mandatory minimums also drive enormous prison costs. There are 171
statutes with mandatory minimums in the federal code.4" In 2008, 21,023
people were sentenced to 31,239 counts of conviction carrying mandatory
minimum sentences.4 If each person were sentenced to the lowest
mandatory minimum (five years), they would serve a cumulative sentence
of 105,115 years at a cost of $25,895 per person per year.42 Of course, the
35.
Nancy Gertner, FederalSentencing Guidelines A View from the Bench, 29 HuM.
6, 8, 23 (Spring 2002), available at http://www.abanet.org/irr/hr/spring02/
gertner.html.
36.
Id. (describing the limitation of "judicial discretion as hydraulic. Discretion passes
to other players in the system").
37.
See 21 U.S.C. § 841(b)(1)(B)(iii) (2006).
38.
U.S. SENTENCING COMM'N, REPORT TO THE CONGRESS: COCAINE AND FEDERAL
SENTENCING POLICY 1, n.1 (May 2007), available at http://www.ussc.gov/r-congress/
cocaine2007.pdf [hereinafter 2007 COCAINE REPORT] (recounting history of crack cocaine
reports since 1995).
39.
U.S. SENTENCING COMM'N, REPORT TO THE CONGRESS: COCAINE AND FEDERAL
SENTENCING POLICY viii (May 2002), available at http://www.ussc.gov/r-congress/02crack/
2002crackrpt.htm [hereinafter 2002 COCAINE REPORT].
RTs. MAG.
40.
MANDATORY MINIMUM OVERVIEW, supra note 31, at 1.
41.
Id.
42.
See Memorandum from Matthew Rowland, Deputy Assistant Director,
Administrative Office of the United States Courts to Chief Probation Officers and Chief
Pretrial Services Officers (May 6, 2009) (on file with the Federal Public Defender for the
District of Columbia); Annual Determination of Average Cost of Incarceration, 74 Fed.
2010]
EVERYTHING OLD IS NEW A GAIN
mandatory minimums range from five years to ten, fifteen, twenty, and
even life. So-called "stacking provisions" of 18 U.S.C. § 924(c) can
for first-time offenders of twenty-five, fifty, or 150
generate sentences
43
years, or more.
Mandatory minimums cause other unintended,' but very real,
consequences beyond the daily and personal injustice of subjecting
many defendants to sentences that are too long but no one, especially
the judge at sentencing, can change. They contribute to overincarceration.
The vast majority of defendants convicted of drug trafficking (16,787
of 24,321) were subject to mandatory minimum sentences of five, ten,
or more than ten years,45 notwithstanding that almost 83% had no
weapons and 63% were people with no or very limited criminal
history.4 6 Meanwhile,
[t]he federal prison population is currently at 206,786 inmates, a nearly
five-fold increase since mandatory minimums and mandatory guidelines
became law. The major cause of the prison population explosion is the
increase in sentence length for drug trafficking, from 23 months before
the guidelines to 73 months in 2001. About 75% of this increase was
due to mandatory minimums, and 25% was due to guideline increases
above mandatory minimum levels. Today, the average sentence
4 7 length
for drug trafficking is even higher than in 2001, at 83.2 months.
Mandatory minimums make no pretense of accommodating the
factors in § 3553(a) that account for individual characteristics at
sentencing. They are impervious to the studied inquiry of that law, and
wholly unable to honor parsimony. They are frequently longer than
needed to comply with the purposes of punishment, only crudely reflect
the seriousness of the offense, and completely fail to account for
Reg. 33,279, 33,729 (July 10, 2009), availableat http://edocket.access.gpo.gov/2009/pdf/E9
-16304.pdf.
43.
See Carnes,supra note 2, at 14-15.
44.
See William H. Rehnquist, Luncheon Address (June 18, 1993), in U.S.
SENTENCING COMM'N, Proceedings of the Inaugural Symposium on Crime and Punishment
in the United States 286 (1993) (stating that mandatory minimum sentences are "perhaps a
good example of the law of unintended consequences").
45.
U.S.
SENTENCING
COMM'N,
2008
SOURCEBOOK
OF
FEDERAL
SENTENCING
STATISTICS, tbl.43 (2008), available at http://www.ussc.gov/ANNRPT/2008/Table43.pdf
(last visited July 28, 2009) [hereinafter 2008 SOURCEBOOK].
46.
Id. at tbls. 37, 39.
47.
See Michael Nachmanoff, Fed. Pub. Defender, E. Dist. of Va., The Sentencing
Reform Act of 1984: 25 Years Later Before The United States Sentencing (July 9, 2009),
available at http://www.ussc.gov/AGENDAS/20090709/Nachmanofftestimony.pdf; see
also Carnes, supra note 2, at 14-15.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 36:75
or offender. They are "[iln
individual characteristics of the offense
48
short.. . a blunt and inflexible tool.
IV. CREATION AND CONSEQUENCES OF THE SENTENCING GUIDELINES
The first of the modem-day mandatory minimums was adopted while the
Sentencing Commission was drafting the Federal Sentencing Guidelines.
This set up an immediate tension between the two systems that the
Commission attempted to ameliorate by anchoring the guidelines to any
corresponding mandatory minimums.4 9
The guidelines are a set of detailed, complex, and interlocking rules.
They attach specific values to elements of crimes and a variety of related
conduct and then locate sentencing ranges in a grid of 258 boxes spread
over forty-three rows and six columns.5" The vertical axis corresponds to
the values accorded to offense elements and sentencing factors such as the
role in the offense, for instance, whether an individual used a gun or acted
with violence during the offense. The horizontal axis accounts for criminal
history and a set of rules help the court determine how much weight prior
convictions will be accorded.5 1
In theory, the guidelines were supposed to capture and channel
considerations of personal and offense characteristics and assign them
values, while providing judges sufficient freedom to depart from guideline
sentences under § 3553(b) when the calculated guideline failed to
accurately account for factors necessary to achieve a sufficient sentence.52
In other words, according to § 3553(b), the court could depart from the
guidelines when it "finds that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
guidelines
consideration by the Sentencing Commission in formulating ' the
53
that should result in a sentence different from that described.
Instead, the guidelines developed into a paint-by-number system. Judges
added up all the values of offense and associated issues that come in at
sentencing, such as use of a weapon or acceptance of responsibility, and
find a point in the chart. Then they added up the criminal history and
48.
Cames, supra note 2, at 6; see also 2002 COCAINE REPORT supra note 39, at 13-20
(recounting particularly disturbing sentencing outcomes required by mandatory minimum
sentences).
49.
See FIFTEEN YEAR REPORT, supra note 9, at 25.
50.
51.
52.
U.S. SENTENCING GUIDELINES MANUAL, ch. 5, pt. A, Sentencing Table (2007).
U.S. SENTENCING GUIDELINES MANUAL § 4A1.1.
U.S. SENTENCING GUIDELINES MANUAL, ch. 1, pt. A, Introduction and Authority
(describing the basic framework and assumptions behind the guidelines § 1B 1.2(b)).
53.
18 U.S.C. § 3553(b); see also United States v. Booker, 543 U.S. 220, 222-24
(2004) (holding that Sentencing Guidelines were no longer mandatory).
EVER YTHING OLD IS NEW A GAIN
2010]
located the corresponding point on the grid. That was, with very few
exceptions, the sentence the judge must impose, with only a very narrow
range within which to exercise any discretion.
Once judges calculated the guideline sentence, they then were to conduct
a departure analysis to determine if there existed a circumstance not
adequately taken into consideration by the Commission in drafting the
guidelines. In practice, however, mandates from Congress and the
Sentencing Commission narrowed judges' ability to depart downward from
the guideline range. The guidelines strictly forbade or limited the kinds of
factors judges could consider when determining whether a departure from
the guidelines was appropriate. For example, the Commission discourages
the consideration of age (including youth),54 education or lack thereof,55
mental illness,56 drug addictioni 7 and family responsibilities, including
58
whether the defendant has dependants.
Judges chafed under restrictions on their discretion to individualize
sentences. They and others railed at the increasing complexity of the
sentencing guidelines and the lengthening of guideline sentences. Professor
Frank Bowman has characterized the annual guideline amendment process
as the "upward ratchet," a one-way system imposing ever-increasing and
ever-lengthening sentences.5 9
He is right. The guidelines have been amended more than 725 times, but
only a handful of those amendments have lowered guideline sentences.60
Notwithstanding the fact that the Sentencing Commission was conceived to
be the expert neutral agency that would craft sentences,61 Congress became
intimately involved in influencing sentencing guideline amendments. It did
so by enacting enormous numbers of federal criminal statutes, many of
54.
U.S. SENTENCING GUIDELINES MANUAL § 5HI.1.
55.
Id. § 5H1.2.
56.
Id. § 5H1.3.
57.
Id. § 5H1.4.
58.
Id. § 5H1.6.
59.
Frank 0. Bowman, III, The Failure of the Federal Sentencing Guidelines: A
Structural Analysis, 105 COLUM. L. REv. 1315, 1319-20 (2005); see also Anthony M.
Kennedy, Assoc. Justice, Supreme Court of the U.S., Speech at the American Bar
Association Annual Meeting (August 9, 2003, Revised August 14, 2003), available at
http://www.supremecourtus.gov/publicinfo/speeches/sp-08-09-03.html
(stating that the
"Sentencing Guidelines should be revised downward").
60.
See Amy Baron-Evans, The Continuing Struggle for Just, Effective and
Constitutional Sentencing After United States v. Booker: Why and How the Guidelines Do
Not Comply with 3553(A), 30 CHAMPION 32, 34 n.39 (Sept./Oct. 2006).
61.
See Mistretta v. United States, 488 U.S. 361, 407, 412 (1989) (depicting the
Commission as an "expert" body, engaging in a process of "rational[ization,] an essentially
neutral endeavor").
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 36:75
which required sentencing guideline treatment. Former Attorney General
Richard Thornburgh testified recently that "[a]lthough many scholars and
the Department of Justice have tried to count the total number of federal
crimes, only rough estimates have emerged. The current 'estimate' is a
staggering 4450 crimes on the books."62 More and more federal criminal
statutes require corresponding guideline mentions. Congress has also
influenced the guidelines by passing a series of "directives" to the
Commission telling it where and how to amend the guidelines.63
That said, the sentencing guideline system was supposed to account for
proportionality, not utter uniformity.' In fact, in 2003, when Congress,
acting on faulty analyses of judicial departure rates,65 adopted the "Feeney
Amendment" to the PROTECT Act to further limit departures from the
calculated guideline ranges, 66 the ability of judges to depart was already
quite hampered. Nonetheless, the Commission responded to the Feeney
Amendment by adding additional restrictions on judicial departure
authority in order to decrease departures and enforce sentencing uniformity
under the guise of stamping out disparities in sentencing. 67 The Feeney
62.
Over-Criminalizationof Conduct/Over-Federalizationof Criminal Law, Hearing
Before the House Comm. on the Judiciary,Subcomm. on Crime, Terrorism and Homeland
Security, 111th Cong. 4 (2008) (statement of Hon. Richard Thomburgh, former U.S.
Attorney General), available at http://judiciary.house.gov/hearings/pdf/Thomburgh
090722.pdf (last visited July 28, 2009).
63.
See OFFICE OF DEFENDER SERVICES, SENTENCING RESOURCE COUNSEL DIRECTIVES
TABLE (Nov. 1, 2008), available at http://www.fd.org/pdflib/SRCDirectivesTable
_Nov2008.pdf (demonstrating that the guidelines have been amended 142 times at the
direction of Congress).
64.
See United States v. Jaber, 362 F. Supp. 2d 365, 373, 376 (D. Mass. 2005)
(relating that the Sentencing Reform Act "did not call for identical sentences from one end
of the country to another. Differences justified by 'differences among offenses or offenders'
are warranted differences").
65.
The Department of Justice and some members of Congress charged that judges
were abusing their discretion to depart from the guidelines, citing departure rates that
exceeded eighteen percent. In fact, as a later report demonstrated, recent increases in
departure rates were due not to judges but to prosecutor-supported departures. See U.S.
SENTENCING COMM'N, REPORT TO CONGRESS: DOWNWARD DEPARTURES FROM THE FEDERAL
SENTENCING GUIDELINES n.173, at B-28-29 (Oct. 2003), available at http://www.ussc.gov/
departrpt03/departrpt03.pdf [hereinafter DOWNWARD DEPARTURE REPORT].
66.
Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act
(PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650, 667 (2003) (codified as amended at 18
U.S.C. § 3553, 28 U.S.C. §§ 991, 994 (2006)) [hereinafter PROTECT Act].
67.
See DOWNWARD DEPARTURE REPORT, supra note 65, at 17-21. The Sentencing
Commission prohibited or limited the ability of judges to depart in the case of criminal
history scoring that overrepresented a defendant's actual criminal propensity in cases of
aberrant behavior, and for family ties, diminished capacity, and coercion and duress, among
others. Id.
2010]
EVER YTHING OLD IS NEW A GAIN
Amendment also overturned a key Supreme Court case that had reinforced
the ability of judges to depart from guideline sentences by ensuring their
decisions were reviewed for "abuse of discretion."6 8 The Amendment
substituted de novo review. That standard of review, combined with the
thumb-on-the-scale influence of the calculated guidelines and the near
elimination of departures, consigned the parsimony mandate to a mere
curiosity in the law.
V. BOOKER V. UNITED STA TES AND THE ADVISORY GUIDELINE ERA
The guidelines, which had been "for all intents and purposes
'mandatory' for most defendants, other than cooperators ' 69 before passage
of the Feeney Amendment, became even more inflexible following its
enactment. That is, until Booker. In Booker v. United States, a majority of
the Supreme Court held that judicial fact-finding pursuant to the
Sentencing Guidelines violated the Sixth Amendment because the SRA
required that judges who found aggravating facts impose a sentence beyond
that authorized by the jury verdict or the defendant's plea.7" To cure the
defect, the Court excised 18 U.S.C. § 3553(b), the provision making the
guideline sentence mandatory.7 1 Also, the Court invalidated the Feeney
Amendment provision requiring de novo review of all sentencing guideline
departures.72
Today, therefore, the Guidelines are advisory. Judges must still calculate
the guideline sentence, but they must also undertake the careful
examination set out in subsection (a) of 18 U.S.C. § 3553. The entire range
of considerations is available to the sentencing judge, who, at the end of the
analysis, must also and for the first time ever, comply with the command of
parsimony. Limitations on discretion, such as those that discourage
consideration of personal characteristics of defendants as bases for
departures, are also advisory, at least to the extent that they conflict with
the enumerated considerations in § 3553(a). In short, "Booker overturned
Feeney... as to each of Feeney's most radical innovations." 73
Following the announcement of Booker, some (particularly in Congress
and the Department of Justice) sought ways to reinstate the mandatory, or
at least presumptive, nature of the sentencing guidelines. Immediately
following the Supreme Court's decision, F. James Sensenbrenner, then the
68.
Koon v. United States, 518 U.S. 81, 98-99 (1996).
Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of
69.
Discretion,117 YALE L.J. 1420, 1429 (2008).
70.
Booker, 543 U.S. at 245, 259.
Id.
71.
Id. at 224, 245, 259-61.
72.
Stith, supra note 69, at 1482.
73.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 36:75
powerful chair of the House Judiciary Committee, introduced H.R. 1528,
Defending America's Most Vulnerable: Safe Access to Drug Treatment
and Child Protection Act of 2005. 7' This legislation purported to penalize a
host of drug offenses with many new mandatory minimum sentences.
Quietly tucked into the bill was a provision that would have virtually
eliminated all downward departures, except those sought by the
government.75 It would have eviscerated the advisory nature of the
guidelines. The bill unleashed a firestorm of protest from a variety of
observers still smarting from the success of the Feeney Amendment, and it
was never accorded a committee vote.
Meanwhile, at a hearing on the one-year anniversary of Booker, the
Department of Justice promised to promote legislation that would harden
guidelines so that judges could sentence above them but could not depart
below them. The U.S. Judicial Conference called the proposal a
"gimmick... that makes an end run around the Supreme Court."76 The
temptation to rein judges in is always simmering below the surface,
however, and colors any discussions of widespread reform efforts.
Even today, with several years of post-Booker sentencing data available
for evaluation, it is clear that judges are handling their jobs as intended.
They are comfortable with the advisory nature of guidelines, though still
chafing at the complexity of the system and the undue length of guideline
sentences.77
Using a crude measure, critics in the past have assailed judges who use
the departure mechanism too freely. Under the current guidelines, judges
may still depart, but they may also "vary" from the guideline sentence in
favor of a § 3553(a)-compliant sentence. As one observer wrote "[w]ith all
the pre-Feeney hype about downward departures and the leniency of the
judiciary, one might have anticipated a federal judiciary run amok, handing
out light sentences to hardened criminals under a purely advisory system.
78
That nightmare never materialized.,
74.
Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child
Protection Act of 2005, H.R. 1528, 109th Congress, availableat http://thomas.loc.gov/cgibin/query/D?c 109:2:./temp/-mdbstq7mW.
75.
H.R. 1528, 109th Cong. § 12, at 34-35 (2005).
76.
See United States v. Booker: One Year Later - Chaos or Status Quo? Hearing
Before the Subcomm. on Crime, Terrorism and Homeland Security of the H. Comm. on the
Judiciary, 109th Cong. 15-17 (2006) (statement of Judge Paul Cassell, Chair of the Criminal
Law Committee on Behalf of the Judicial Conference), available at http://commdocs.
house.gov/committees/judiciary/hju26647.000/hju26647Of.htm (last visited July 28, 2009).
77.
See Cynthia Cotts, Judges Call on U.S. to Simplify Sentencing Guidelines (July 8,
2009), availableat http://www.bloomberg.com/apps/news?pid=newsarchive&sid=a.
78.
Susan R. Klein & Sandra Guerra Thompson, DOJ's Attack on Federal Judicial
Leniency, the Supreme Court's Response and the Future of Federal Criminal Sentencing,
2010]
EVERYTHING OLD IS NEW AGAIN
In fact, judges are hewing amazingly close to the guidelines-too close,
for some observers. Judges sentence below the calculated guideline range
in only 15.9% of cases, while government-supported, below-guideline
sentences top 25%. 79
VI. NEW ADMINISTRATION BRINGS HOPE FOR CHANGE
Change is indeed in the air in the world of criminal justice. Even before
he was elected, President Barack Obama and his running mate, Sen. Joseph
Biden, promised a new civil rights agenda. It included, among other things,
completely eliminating the sentencing disparity between crack and powder
cocaine, and expanding the use of drug courts to give first-time, nonprograms
violent offenders a chance to participate in drug rehabilitation
80
"that have proven to work better than a prison term."
Today, Whitehouse.gov advertises the Obama Administration's
commitment to criminal justice reform:
The President will lead the fight to build a more fair and equitable
criminal justice system. He will seek to strengthen federal hate crime
legislation and will work to ensure that federal law enforcement
agencies do not resort to racial profiling. He supports funding for drug
courts, giving first-time, [nonviolent] offenders a chance to serve their
sentence, if appropriate, in drug rehabilitation programs that have
proven to work better than prison terms in changing behavior. President
Obama will also improve ex-offender employment and job retention
health counseling so
strategies, substance abuse treatment, and mental
8
ex-offenders can successfully re-join society. 1
The Attorney General of the United States has signaled the
Administration's commitment to the equalization of crack- and powdercocaine sentences, and has taken every relevant opportunity to repeat that
pledge. 82 The Justice Department has announced a comprehensive review
519, 554 (U. of Texas Law, Public Law Research Working Paper Series, Paper No. 147
(2009)), availableat http://ssm.com/abstract=-1418622 (last visited July 27, 2009).
79.
U.S. SENTENCING COMM'N, FINAL QUARTERLY DATA REPORT 1, tbl.1 (2009),
availableat http://www.ussc.gov/sc-cases/USSC_2009_Quarter_.ReportFinal.pdf.
80.
THE WHITE HouSE, CivrL RIGHTS AGENDA (2009), available at http://www.
whitehouse.gov/issues/civil-rights/ (from a notice formerly found on www.change.gov, a
website that has been dismantled and transferred to www.whitehouse.gov).
81.
The White House: Civil Rights, http://www.whitehouse.gov/issues/civil-rights/
(last visited Sept. 24, 2009).
82.
See Hearingon RestoringFairness to FederalSentencing: Addressing the CrackPowder Disparity, before the Subcomm. on Crime and Drugs of the S. Comm. on the
Judiciary 10 (Apr. 29, 2009) (statement of Lanny A. Breuer, Assistant Attorney General,
Criminal Division, "[t]he Administration believes Congress's goal should be to completely
eliminate the sentencing disparity between crack cocaine and powder cocaine"); see also
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 36:75
of corrections and criminal justice policy with an aim to institute sweeping
reform. On July 9, 2009, Eric Holder addressed the Vera Institute:
Although this Administration is still young, we have already started to
put into practice what I believe is a data-driven, non-ideological, postpartisan approach to crime. For example, I have asked attorneys
throughout the Department to conduct a comprehensive, evidence-based
review of federal sentencing and corrections policy. Specifically, the
group is examining the federal sentencing guidelines, the Department's
charging and sentencing advocacy practices, mandatory minimums,
crack/powder cocaine sentencing disparities, and other racial and ethnic
disparities in sentencing. The group is also studying alternatives to
incarceration and strategies that help reduce recidivism when former
offenders reenter society. We intend to use the group's findings as a
springboard for recommending° new legislation that will reform the
structure of federal sentencing.
Meanwhile, Sen. Jim Webb (D-VA) has introduced bipartisan
legislation, the National Criminal Justice Act of 2009, to create a blueribbon commission to examine every facet of a criminal justice system that
incarcerates too many and leaves too few ready to reenter society. 4 Sen.
Webb has thirty-seven co-sponsors for his reform commission, and a
companion bill is planned in the House of Representatives.
Sentencing reform is long overdue. Here are a few proposals-one
mandatory and one more modest-based on long-ignored provisions of the
SRA.
A. Repeal or Disable Mandatory Minimums
Today, when judges break the law of parsimony, they do so using
mandatory minimum sentences. To restore sentencing to some
semblance of health, Congress must first abandon mandatory minimum
sentences. Their existence, rigidity, and undue severity in many cases
give lie to the principle of parsimony. They prohibit the exercise of
discretion, and while a mandatory minimum sentence may in some or
Carrie Johnson, Parityin Cocaine Sentences Gains Momentum, WASH. POST, July 24, 2009,
at 2, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/07/24/
AR2009072401476.html (statement of Attorney General Eric Holder, "[w]e know that this
egregious difference in punishment is simply wrong").
83.
Eric Holder, Attorney General, Remarks as Prepared for Delivery by Attorney
General Eric Holder at the Vera Institute of Justice Third Annual Justice Address (Jul. 9,
2009), availableat http://www.usdoj.gov/ag/speeches/2009/ag-speech-090709.html.
84.
See Sen. Jim Webb, National Criminal Justice Act of 2009: Introduced in the
Senate March 26, 2009, http://webb.senate.gov/emailcriminaljusticereform.html. See
generally National Criminal Justice Commission Act of 2009, S. 714, 111 th Cong. § 1
(2009), availableat http://thomas.loc.gov/cgi-bin/thomas (last visited Sept. 24, 2009).
EVERYTHING OLD IS NEW A GAIN
2010]
even many cases be the appropriate sentence, too often it is not.
Congress can abandon mandatory minimum sentences directly, as it did
in 1970 when it repealed nearly every drug mandatory minimum adopted as
part of the Boggs Act.85 The mandatory minimums adopted in 1950 were
supposed to deter and end drug trafficking, but "[flar from slowing the rise
in drug use among America's youth, the strict antidrug laws were followed
'
by an explosion in drug abuse and experimentation during the 1960s. 86
Mandatory minimums clearly were not working. When Richard Nixon took
office in 1969 he was determined to combat the drug problem.87 Instead of
calling for new, harsher mandatory sentences, he worked with Congress to
negotiate passage of a bill to encourage rehabilitation, ensure law
and
enforcement had the tools it needed to fight trafficking and production,
88
eliminate mandatory minimums for all but the most serious offenses.
Repealing mandatory minimums would have the added benefit of
freeing the Sentencing Commission from the overbearing influence these
sentencing statutes have had on the Sentencing Guidelines. Mandatory
minimums trump, or stand in for, guideline sentences whenever those
guidelines would call for a lower sentence. For example, an individual
convicted of conspiracy to possess and possession with intent to distribute
five grams of crack cocaine, who was a minor participant and who admitted
responsibility promptly, could see a significantly lower sentence under the
guidelines than the five-year mandatory minimum called for by law. This is
because the guidelines permit the judge to reduce a guideline sentence
based on factors like acceptance of responsibility 89 and being a minor
participant in the undertaking. 90
When the Commission was drafting the guidelines, it decided to anchor
the guideline ranges by reference to the mandatory minimums. The
Sentencing Commission thus used the mandatory minimum penalties "as
starting points to determine the base offense level[s]" of guideline
offenses. 9' Eliminating the mandatory minimums could free a reformminded Sentencing Commission to take a comprehensive look at the extent
to which base offense levels indexed to mandatory minimums indeed
satisfy the statutory purposes of punishment.
85.
86.
87.
Gill, supra note 26, at 14.
Id. at2.
Id. at 3.
88.
Id.
U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 (2008) (authorizing sentence
89.
reductions for timely acceptance of responsibility).
U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 (2008) (reducing sentence for
90.
being a minor or minimal participant).
MANDATORY MIMimUM REPORT, supra note 7, at 28.
91.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 36:75
While full repeal is preferable, Congress could go a long way toward
strengthening judicial discretion short of repeal by passing legislation that
would authorize judges to waive the mandatory minimum under certain
circumstances. One way would be to expand the existing safety valve
provision at 18 U.S.C. § 3553(f). Another would be to add a subsection to §
3553 authorizing the court to sentence according to 18 U.S.C. § 3553(a),
notwithstanding the mandatory minimum sentence, if that sentence does
not comply with the parsimony mandate. A bill along those lines, The
Ramos-Compean Justice Act of 2009, was introduced in Congress in late
July 2009 by Reps. Robert C. "Bobby" Scott (D-VA) and Ted Poe (RTX).92 Such measures honor the spirit of parsimony and give genuine effect
to the careful, studied process contemplated by 18 U.S.C. § 3553(a).
B. Honor-Neglected Directives of the Sentencing Reform Act
Moving Congress to act can take a very long time. Crack-cocaine reform
is only this year gaining any real traction,93 twenty-three years after the
adoption of the "100-to-1" sentencing disparity between crack and powder
cocaine, and fifteen years since the Sentencing Commission first proposed
revising crack-cocaine penalties in 1995.94 While our sentencing system
may be due for a legislative overhaul (the Booker Court pointed out that
"the ball now lies in Congress' court") 95 there is much to learn as judges
feel their way into an advisory guideline system without waiting for
Congress to act. As we wait to see what will happen with legislation to
repeal or waive mandatory minimums, a reform-minded Sentencing
Commission could do a great deal to fix some of its guidelines, particularly
those that are criticized for undue harshness and those that routinely result
in sentences that are too long. The Sentencing Commission would not need
to go to Congress for yet another directive or legislation. Rather, it could
look to the enabling statute, the SRA. There are several directives
embedded in the criminal code by the SRA that have lain dormant or been
92.
H.R. 3327, 111 th Cong. (2009).
93.
A bill to equalize crack and powder cocaine penalties was marked up in the
Subcommittee on Crime, Terrorism and Homeland Security of the House Committee on
July 22, 2009, and enjoys significant support from the White House and Attorney General.
See Carrie Johnson, Parity in Cocaine Sentences Gains Momentum, WASH. POST, July 24,
2009, at 2, availableat http://www.washingtonpost.com/wp-dyn/contentarticle/2009/07/24/
AR2009072401476.html. Meanwhile, the Senate, on March 17, 2010, passed a bill by
unanimous consent that would change the triggering ratio to 18:1. See S.1789, 111 th Cong.,
(2009), availableat http://thomas.loc.gov/cgi-bin/thomas.
94.
See U.S. SENTENCING COMM'N, SPECIAL REPORT TO CONGRESS:
COCAINE AND
FEDERAL SENTENCING POLICY (Feb. 1995), available at http://www.ussc.gov/crack/
execsum.pdf.
95.
United States v. Booker, 543 U.S. 220, 265 (2005).
2010]
EVERYTHING OLD IS NEW AGAIN
underutilized. If dusted off and taken seriously, these directives could arm
the Sentencing Commission with enough authority to address some of the
worst problems with guideline sentences.96
For example, 28 U.S.C. § 994(g) has largely been ignored. 97 This law
directs the Sentencing Commission to take into account penal and
correctional facilities when drafting or amending guidelines. In particular,
it commands that "the sentencing guidelines prescribed under this chapter
shall be formulated to minimize the likelihood that the Federal prison
population will exceed the capacity of the Federal prisons." 98
The federal prison population stands at 210,384. 99 This represents a
nearly five-fold increase over the population in the mid-1980s, when
mandatory minimums and the guidelines were adopted. The increases come
with costs; at the end of 2008,the federal prison population was 36% over
capacity, and the Federal Bureau of Prisons struggles to maintain safety for
prisoners and guards in such adverse conditions. 00
The Sentencing Commission cannot be held accountable for the entire
increase in the federal prison population, but it can answer for about 25%.
"The major cause of the prison population explosion is the increase in
sentence length for drug trafficking, from [twenty-three] months before the
guidelines to [seventy-three] months in 2001. About 75% of this increase
was due to mandatory minimums, and 25% was due to guideline increases
above mandatory minimum levels."''
The next unrealized directive from the SRA, 28 U.S.C. § 994(j),
provides that "[t]he Commission shall insure that the guidelines reflect the
appropriateness of imposing a sentence other than imprisonment in cases in
96.
But see Paul J. Hofer, The Reset Solution, 20 FED. SENT'G REP. 349, 349-51
(2008) (arguing a more comprehensive approach is needed).
97.
The author routinely attends Sentencing Commission hearings and meetings and
monitors the announcements of proposed amendments to the Sentencing Guidelines. In the
years I have followed the guidelines, I have never known the Sentencing Commission to
invoke this directive, nor have I found any mention in any history of the guidelines.
98.
28 U.S.C. § 994(g) (2006).
99.
FED. BUREAU OF PRISONS, WEEKLY POPULATION REPORT (2008), http://www.bop.
gov/ locations/weekly _jeport.jsp (last modified, March 25, 2010).
100.
Federal Prisoner Reentry and the Second Chance Act: Hearing Before H.
Subcomm. on Commerce, Justice, Science and Related Agencies, of the U.S. Comm. on
Appropriations, 11 th Cong. 2 (2010) (statement of Harley G. Lappin, Director, Federal
Bureau of Prisons, 3-4), available at http://appropriations.house.gov/Witness-testimony/
CJS/harley-lappin_03 10 09.pdf.
101.
The Sentencing Reform Act of 1984: 25 Years Later: Public Hearings Before the
United States Sentencing Commission, I 1lth Cong. 5 (2009) (statement of Michael
Nachmanoff, Federal Public Defender for the Eastern District of Virginia) (internal citations
omitted), available at http://www.ussc.gov/AGENDAS/20090709/Nachmanoff testimony.
pdf.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 36:75
which the defendant is a first offender who has not been convicted of a
crime of violence or an otherwise serious offense."' 2 This provision also
has lain dormant. "The percentage of offenders receiving simple probation
has been cut in half under the guidelines." 1 3 Of the 75,657 people
sentenced in federal court in 2008, nearly 90% were sentenced to
imprisonment (86.4% to prison time only)."°
While the Sentencing Commission does not appear to publish statistics
detailing which defendants are "first-time offenders[s] who [have] not been
convicted of a crime of violence or an otherwise serious offense," one can
use the statistics published with respect to the drug guideline as a rough
guide. Of those sentenced in 2008, 28,158 had little or no criminal
history. 1°5 In 2008, of the 24,321 drug offenders, 52% were in Criminal
History Category I.106 Of those 24,321 offenders, 82.8% had no weapons
involvement in their offense, 10 7 and only 5.7% had an aggravating role
adjustment.108
These numbers tell us that more than half of all drug offenders are firsttime offenders and very few drug offenders used or had weapons. Using
one subset of drug cases, those for crack and powder cocaine, the
Sentencing Commission has demonstrated that the overwhelming majority
of offenders sentenced in 2005, were sentenced for being couriers, streetlevel dealers, and loaders (53.1% of powder cases and 61.5% of crack
cases).' 0 9 Nonetheless, the vast majority of crack and powder defendants is
subject to sentences of imprisonment beginning at five years and
concentrate at the five- and ten-year levels. 0
While there might be principled disagreement about the definition of
"serious" for purposes of complying with the directive, the Commission
has made clear that, at least for crack-cocaine offenses, the crack guideline
overstates the relative seriousness of the offense."' The same is
undoubtedly true for other guideline sentences, both for drugs as well as for
a host of nonviolent offenses, including many white-collar offenses.
There is no provision for alternative sentencing in the guidelines, despite
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
28 U.S.C. § 9940).
FIFTEEN YEAR REPORT, supra note 9, at 42.
2008 SOURCEBOOK, supra note 45, at 28, tbl. 12.
Id. at 30, tbl.14.
Id. at 104, tbl.37.
Id. at 106, tbl.39.
Id. at 197, tbl.40.
2007 COCAINE REPORT, supra note 38, at 20-21 figs. 2-5 & 2-6.
Id. at 13, 30, figs.2-2 & 2-14.
Id. at 8.
2010]
EVERYTHING OLD IS NEW AGAIN
the statutory directive.1 12 It would behoove a reform-minded Sentencing
Commission to determine which offenders might be considered under §
9940) to be first offenders who have not been convicted for a crime of
violence or otherwise serious offense for purposes of complying with the
directive in § 9940) to "insure that the guidelines reflect the
of imposing a sentence other than imprisonment" in those
appropriateness
11 3
cases.
Finally, the Supreme Court reiterated in a post-Booker opinion, ll 4 the
principle animating an underutilized directive of the SRA has new
relevance today as we engage in a reexamination of the fairness of
sentencing. "As the Supreme Court has said, when judges sentence outside
the guideline range based upon the purposes and factors set forth in §
3553(a), those judges are providing 'relevant information' to the
Commission so that the guidelines can 'constructively evolve over time, as
both Congress and the Commission foresaw."'" 15
The mechanism the Commission can employ to credit the feedback from
the courts is found at 28 U.S.C. § 994(o), which provides in part that "[t]he
Commission periodically shall review and revise, in consideration of
comments and data coming to its attention, the guidelines promulgated
pursuant to the provision of this section." ' 6 As discussed within, nearly
every guideline amendment has increased sentence length.' Complaints
about judicial departures or variances from the calculated guidelines,
particularly variances that address guideline sentences that are considered
112. On January 21, the Sentencing Commission published for comment a guideline
amendment that would allow courts to impose a sentence of probation for a very small class
of first time drug offenders who would be required, as a condition of probation, to
participate in a drug treatment program. See U.S. SENTENCING COMM'N. 2010 PROPOSED
AMENDMENTS TO THE SENTENCING GUIDELINES, POLICY STATEMENTS, AND OFFICIAL
COMMENTARY, PROPOSED AMENDMENT 1, ALTERNATIVES TO INCARCERATION, available at
http://www.ussc.gov/2010guid/20100121_ReaderFriendly-ProposedAmendments.pdf
See also Letter from Julie Stewart and Mary Price to Hon. William K. Sessions, Chair,
U.S.S.C. (regarding alternatives proposals), availableat http://www.famm.org/Repository/
Files/FAMM%20Final%20Comments%203-22-10.pdf.
18 U.S.C. § 9940).
113.
114.
See Rita v. United States, 551 U.S. 338, 356-60 (2007).
115.
The Sentencing Reform Act of 1984: 25 Years Later: Public Hearings Before the
United States Sentencing Commission, 11 lth Cong. 4 (2009) (statement of Alexander
Bunin, Federal Public Defender for the Northern District of New York, 4) (citing Rita v.
United States, 551 U.S. 338, 358 (2007)), available at http://www.ussc.gov/AGENDAS/
20090709/Bunintestimony.pdf [hereinafter Bunin].
28 U.S.C. § 994(o) (2006).
116.
117.
See supra Section II. A recent and notable exception was the Commission's
decision in 2007 to lower the crack cocaine guideline by two levels in response to nearly
universal criticism of the harshness of the crack cocaine penalty structure and its own multiyear assessments. See U.S. SENTENCING GUIDELINES MANUAL, app. C, amend. 706 (2007).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 36:75
unduly long in light of the considerations and mandate of § 3553(a), miss
the point. As the opinion in Rita pointed out, the sentencing decisions were
to be treated as a kind of feedback system." 8 Instead, for many years,
Congress and the Commission sought to hamper this exercise of judicial
discretion, claiming that judges were engaging in exercises of undue
leniency by abusing their departure authority.
There is another, healthier, way to look at such variances, particularly
those that seem widespread; and a mechanism in § 994(o) to credit the
feedback. Judges are using variances to correct for injustice in the
guidelines. "[T]here have been more judicial below-guideline sentences in
cases involving guidelines that frequently recommend punishments that are
greater than necessary (e.g., drug cases, career offender cases, crack cases,
immigration cases... certain kinds of firearms cases, and child
pornography cases)."" 9
This "feedback" from the courts should inform Congress and the
Commission when a particular guideline results in sentences that are too
severe for too many defendants who are subject to it. If the Commission
were to respond to this feedback by using it to identify, investigate, and
adjust problematic guidelines, it is likely that compliance with the
guidelines will increase.
VII. CONCLUSION
Even though the premier law of sentencing, 18 U.S.C. § 3553(a) turned
twenty-five years old last year, it was not until three years ago that judges
knew for sure that they could follow it. That was when the Supreme Court
decided Gall v. United States,12 ° explaining that the U.S. Sentencing
Guidelines not only were advisory, but could not be presumptively
reasonable for purposes of review on appeal. The reiteration of the advisory
nature of the guidelines frees judges to exercise judicial discretion at
sentencing in ways unimaginable since the adoption of the SRA and the
imposition of mandatory guidelines and statutory mandatory minimum
sentences. While discussions continue about whether and how to reform the
current advisory guideline system, it is clear that there is a great deal to
take from sentencing practices. Reformers should avoid any temptation to
include in any guideline reform new mandatory rules hampering discretion.
At the same time, lawmakers should move to repeal or limit the effect of
statutory mandatory minimums. There are also directives in the SRA that
can provide sufficient authority for guideline changes for a reform-minded
Commission ready to slow the rate of incarceration, divert those offenders
118.
119.
120.
Rita, 551 U.S. at 357-58.
Bunin, supra note 115.
128 S. Ct. 586 (2007).
EVERYTHING OLD IS NEW AGAIN
2010]
that Congress did not intend to be incarcerated, and credit the feedback
from sentencing courts about the fairness and severity of the Sentencing
Guidelines.
Attorney General Eric Holder recently said, "The desire to have an
almost mechanical system of sentencing has led us away from
individualized, fact-based determinations that I believe, within reason,
should be our goal."' 12 1 Today we are presented with an opportunity to use
the premier sentencing law, as it was intended, to retune our sentencing
policy to one more sensitive to fact-based, individualized determinations.
121.
U.S. DEP'T OF JUSTICE, ATTORNEY
GENERAL HOLDER'S
REMARKS
FOR THE
CHARLES HAMILTON HUSTON INSTITUTE FOR RACE AND JUSTICE AND CONGRESSIONAL BLACK
CAUCUS SYMPOSIUM "RETHINKING FEDERAL SENTENCING POLICY 25TH ANNIVERSARY OF THE
SENTENCING
REFORM
ACT" (2009)
http://www.usdoj.gov/ag/speeches/2009/ag-speech-
0906242.html (last visited July 27, 2009).