Stephen Vancee & Todd Bussert. Encyclopedia of Prisons and Correctional Facilities. Editor: Mary Bosworth. Volume 2. Sage Reference. 2005.
The passage of the Sentencing Reform Act (SRA) of 1984, which mandated the creation of the U.S. Sentencing Commission and led to the adoption of the U.S. Sentencing Guidelines, marked a fundamental change in the federal government’s approach to crime and criminal justice policy. The bipartisan initiative prospectively ended the use of indeterminate sentencing and parole release within the federal system and has substantially influenced the method and mode of prosecution, defense and, ultimately, punishment for those charged with federal crimes.
From the early 20th century until roughly 1970, the federal sentencing system, like that of virtually all states, followed an indeterminate model that was ostensibly structured around offender rehabilitation. Congress established statutory penalties for criminal offenses with wide sentencing ranges that afforded judges substantial discretion to impose what they deemed appropriate punishments accounting for the unique nature of an individual defendant, the particular circumstances surrounding the offenses, and other relevant variables. Sentences of imprisonment were of indefinite length and were largely governed by correctional officials within the Federal Bureau of Prisons (BOP) and parole officials within the U.S. Parole Commission. The former rewarded inmates for positive institutional adjustment by liberal grants of “good time” credits and, correspondingly, penalized poor adjustment by removing or disallowing time credits. The Parole Commission convened periodically and employed a system of written, arguably objective guidelines to determine whether an offender’s rehabilitative efforts and likelihood of recidivism warranted release and, if so, under what conditions. Under this system, an offender deemed rehabilitated and worthy of release could serve as little as one-third of the original sentence imposed.
A major benefit of the indeterminate sentencing model was the flexibility it provided to match limited prison resources (e.g., beds and programming) with offenders’ needs. In particular, sound management enabled correctional officials to regulate systemic growth and resultant overcrowding. Indeed, the federal prison population remained relatively constant for the 50 years preceding 1975.
The 1970s ushered in a nationwide chorus of criticism for indeterminate sentencing and its underpinning assumption, namely that following an appropriate period of supervision and treatments, offenders could be rehabilitated and safely reintegrated into the community. During this period, sentiment grew that rehabilitative programming was simply not effective in either protecting against risk of future public harm or reducing re-offense rates. Additionally, civil rights advocates, such as the American Friends Service Committee, charged that indeterminate sentencing caused unwarranted disparities among comparable defendants, namely with regard to race. Disparities were also cited among the differences in sentence lengths between judges, categories of offenses, and geographical regions. Conservative thinkers, such as James Q. Wilson, concurrently argued that indeterminate sentencing resulted in unduly lenient sentences.
One of the most prominent calls for sentencing reform came from Judge Marvin E. Frankel, whose seminal work Criminal Sentences: Law without Order (1974) decried the absence of rules and uniform standards in sentencing. Judge Frankel advocated the abolition of indeterminate sentencing and the creation of sentencing guidelines by independent, authoritative bodies of judges, academics, and practitioners. A notable convert to Judge Frankel’s ideas was Senator Edward Kennedy (D-Massachusetts), who first introduced federal legislation seeking to implement a guidelines system in the late 1970s. Senator Kennedy was particularly troubled by allegations that indeterminate sentencing led to gross racial disparities. Whereas numerous states, including Minnesota, Pennsylvania, Washington, and Oregon, abolished indeterminate sentencing in favor of guidelines systems developed and overseen by administrative sentencing commissions in a timely manner, it took years of debate and compromise before Congress passed and the president approved a bill enacting such changes in the federal system. (SRA, as amended, is codified at 18 U.S.C. §§3551-3559, 3561-3566, 3581-3586 and 28 U.S.C. §§991-998.)
A subprovision of the Comprehensive Crime Control Act of 1984, the Sentencing Reform Act replaced indeterminate sentencing and parole with a “truth in sentencing” determinate model that requires federal offenders to serve their full sentences minus up to 54 days of credit per year (approximately 15%) for good institutional behavior. To this end, the SRA called for the creation of the U.S. Sentencing Commission, an independent agency in the federal judicial branch comprised of seven voting members known as commissioners. Commissioners are appointed by the president and confirmed by the Senate. At least three commissioners must be federal judges, and no more than four may belong to the same political party. The U.S. attorney general and the chair of the U.S. Parole Commission, or their designees, serve as ex officio members, meaning that they are not required to undergo the confirmation process and do not vote.
Sentencing Commission and Guidelines
On September 10, 1985, President Ronald Reagan nominated Judges William W. Wilkins (Chairperson), George MacKinnon, and Stephen Breyer, who was later appointed Supreme Court Justice; Professors Ilene Nagel, Michael Block, and Paul Robinson; and former U.S. Parole Commissioner Helen Corrothers to serve on the first Sentencing Commission. Pursuant to the SRA, the commission’s stated purpose was, and remains, to establish policies and practices that (1) assure that the goals of just punishment, deterrence, incapacitation, and rehabilitation are met; (2) provide certainty and fairness in sentencing by eliminating disparities among similarly situated defendants while maintaining sufficient flexibility to permit individualized sentences that account for mitigating or aggravating factors not considered in the formation of general sentencing practices; and (3) reflect the advancement in knowledge of human behavior as it relates to the criminal justice process. The commission is further charged with evaluating the sentencing guidelines’ effect on the criminal justice system, recommending modifications of substantive criminal law and sentencing procedures, and establishing a research and development program on sentencing issues.
Faced with various competing interests and philosophies, the first commission began the guidelines creation process by analyzing voluminous amounts of past sentencing data along with the elements of federal crimes and the Parole Commission’s guidelines and statistics. Through this review, the commission was able to identify both broad and specific distinctions that became the basis for the guidelines. The commission then considered both historic sentence length data and congressional dictates in devising a 43-row, six-column matrix of penalties that measures the severity and characteristics of a given offense of conviction against an offender’s past criminal history. Sentences for individuals with the same offense level and criminal history intersect at a sentence range—the bottom end of which may differ from the top by no more than six months or 25%, whichever is greater.
The initial Federal Sentencing Guidelines were submitted to Congress on April 13, 1987, and took effect on November 1, 1987. Soon thereafter, legal challenges were filed on behalf of defendants disputing, among other things, the Sentencing Reform Act’s constitutionality. In 1989, the Supreme Court decided Mistretta v. United States, which upheld the constitutionality of the Sentencing Commission as a judicial branch agency. Since that time, more than 500,000 defendants have been sentenced under the guidelines. Because the guidelines are designed to embody a “heartland” of criminal offenses, judges ordinarily impose a sentence from within an offender’s recommended guideline range unless the court identifies an extraordinary or atypical factor that the commission failed to consider. In those instances, courts may depart from a guideline range to impose a penalty higher or lower than that recommended, though such deviation can be reviewed by a court of appeals. In all cases, sentencing judges must provide the reasons for the sentence imposed.
Because the SRA and commission arose during the burgeoning “Get tough on crime” era of the mid-1980s, observers criticized the first commission as striving to satisfy the legislative and executive branch’s respective political agendas rather than insulating themselves from such external pressures. Special concern was raised about the stripping of traditional judicial discretion and the corresponding shift in power to prosecutors, whose charging and plea decisions as well as exclusive ability to request sentencing departures based on assistance to federal authorities substantially impact a defendant’s election to pursue his right to trial or to cooperate against alleged criminal cohorts. Opposition to the guidelines has remained nearly constant since 1987 and can be found in all sectors of the federal justice system and to include judges, defense attorneys, and probation officers. Equally as notable, numerous states considered enacting guidelines systems and sentencing commissions after the federal government explicitly repudiated the federal guidelines as a model to emulate.
Many criticize the federal guidelines system because of the guidelines manual’s length and legalistic complexity and the lack of uniformity in sentencing practices across judicial districts and circuits. They also point to inconsistencies in prosecutorial plea and departure recommendation practices, the ever-expanding scope of offense categories covered, and the persistence of socioeconomic and racial disparities.
Complexity and Inflexibility
In response to legal interpretations, legislative directives, and emerging trends, the Sentencing Commission regularly submits guideline amendments to Congress for approval. This amendment process has helped create a guidelines manual that, with appendices, totaled more than 1,500 pages in 2001 and that determines the majority of sentences imposed.
Although permissible, departures from a given guideline range are controlled by a rigid framework of considerations. For instance, when weighing the appropriateness of departing from an offender’s prescribed sentencing range, courts are forbidden to rely on race, sex, national origin, religion, or socioeconomic status—all factors that were available in the pre-guidelines era. Reliance on other considerations, such as age, educational and vocational skills, physical and mental health, employment history, and family or community ties is either discouraged or deemed irrelevant.
The most common and easily obtainable method of downward departure is based on an offender’s cooperation with government investigations of others. Because the prosecutor is the only individual with the power to request such a departure, many have criticized this avenue for deviation from the guidelines, as it grants excessive power to the prosecutor and removes judicial discretion. Moreover, many critics contend that such departures are often used not to reward cooperation, but as a surreptitious method to circumvent an offender’s recommended guideline sentence when all concerned parties (the prosecutor, the defense, and the judge) perceive it as too rigid, arbitrary, unjust, or severe.
The most significant departure from the guidelines comes not from limited judicial autonomy but, rather from congressionally created mandatory sentences that establish minimum penalties for drug offenses, possession of weapons, and repeat offenders. An oft-referenced example is the mandatory minimum penalties attendant on crack cocaine convictions (e.g., a conviction for possession of five grams of crack cocaine carries a minimum five-year term of imprisonment). Interestingly, countless practitioners and scholars, even those at the Sentencing Commission, argue that such statutory minimum penalties do not achieve their intended aim of increasing sentencing severity and uniformity. This is due to inconsistent prosecutorial charging decisions and opportunities for sentences below the given penalty where cooperation is provided.
Continued Racial Disparity and a Growing Prison Population
Legislative history suggests that the statutory goal of avoiding unwarranted sentence disparities among similarly situated defendants was and is the most important goal of the federal guidelines. The vast majority of analytical evaluations, case studies, and other evidence, however, suggest that the guidelines have failed in avoiding unwarranted disparities. This is due in large part to informal mechanisms to circumvent the guidelines when they are disliked by prosecutors, defense attorneys, and judges. With regard to racial disparity, a careful review of demographic data from the Federal Bureau of Prisons reveals that 41% of federal offenders incarcerated during 2001 were African American.
In addition, despite the SRA’s mandate that the federal sentencing guidelines minimize the likelihood of prison overpopulation, the guidelines’ drafters predicted the prison population would triple within a decade. Indeed, the impact of the sentencing guidelines and mandatory minimum penalties on the federal prison population is unmistakable. In 1987, there were 48,300 individuals under federal correctional supervision. Ten years later, the figure had risen to 112,973, and BOP estimates place the 2007 supervision population at 205,000, a fourfold increase within 20 years.
It is debatable whether the Sentencing Reform Act of 1984 has fulfilled the designs of its original sponsors. While offering a level of predictability to the extent that most penalties are set forth in an inclusive, written volume and are safe from modification by correctional or parole authorities, the federal guidelines system lacks true uniformity and consistency, partly due to institutionalized discontentment with the system’s steadfast rigidity. Yet, because both guideline amendments and the repeal of mandatory minimums require congressional approval, the prevailing political climate shall control any effort toward meaningful reform.