Thompson, Sandra Guerra --- "Sentencing Guidelines in the Us: a Primer" [2005] ALRCRefJl 11; (2005) 86 Australian Law Reform Commission Reform Journal 45

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Reform Issue 86 Winter 2005

This article appeared on pages 45 – 48 & 71 of the original journal.

Sentencing guidelines in the US: A primer

By Sandra Guerra Thompson*

Sentencing law and practice in the United States have undergone dramatic transformations in the past 20 years.

The drama culminated with the January 2005 decision of the Supreme Court in finding the Federal Sentencing Guidelines to be unconstitutional as applied and rendering them ‘advisory’ in effect so as to render them constitutional. This article provides a brief primer on the rise and fall of sentencing guidelines in the United States.

For the first 80 years of the 20th century—prior to the adoption of numerous types of provisions constraining judicial sentencing (in the federal system as well as many state systems)—judges in the US exercised wide latitude in determining sentence. To understand the dramatic shift from the ‘indeterminate’ sentencing model that existed before the adoption of guidelines, it helps to begin with an illustration.

Imagine that a young woman—Shelley Graves—is convicted of the offence of ‘assault in the second degree’. Her crime consists of having provided a scalpel to her five-year-old son to use in defending himself against another five-year-old boy while playing in the playground. Graves’ son stabbed the other boy in the stomach neccesitating medical treatment. The victim fully recovered from the injury. With regard to her background, we know that Graves is a high school graduate. She and her son share an apartment with Graves’ sister. Graves works in a psychiatric hospital as a physician’s assistant. She has no criminal record. The probation officer who reviewed her case provides the trial judge with a report that states that Graves expressed sincere remorse for her crime. The statutory punishment range for second-degree assault is a term of no more than seven years’ incarceration and no more than a $500 fine. What sentence should Graves receive?

Prior to the adoption of guideline systems in the United States, Graves would have received whatever sentence the particular judge she faced believed she should receive. The predominant system for sentencing offenders throughout the 20th century—the indeterminate sentencing model—gave sentencing judges nearly complete discretion to determine the appropriate sentence, without imposing any requirement that the judge justify or explain the sentence either orally or in writing. Thus, in the typical sentencing case, a person in Graves’ position had no way of knowing why the judge had decided on the sentence she received.

In my classes, I ask students to sentence Shelley Graves within the statutory limits and to explain their sentences. Invariably, many students would sentence her to a probationary term with some conditions imposed such as parenting classes, psychiatric evaluation, fines, restitution, etc. A fair number would also impose a short term of incarceration. Some students, however, take a different view of the case and sentence her to terms of five to seven years’ incarceration. The problem highlights the arbitrariness of a completely indeterminate sentencing system in which judges can sentence anywhere within broad statutory ranges, with virtually no rules for determining where a particular sentence should fall within the range. In 1973, one federal judge authored a widely-recognised book on federal sentencing in which he lamented:

‘the almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law.’¹

Despite such concerns, the US Supreme Court consistently upheld the constitutionality of indeterminate sentencing.

Emergence of sentencing guidelines and the US Sentencing Commission

Liberal critics of indeterminate sentencing pointed to disparities in the sentencing of non-violent ‘street crimes’, such as car theft, and white-collar crime, for example, insider trading or embezzlement.² They noted the disparate treatment of minorities and poor people in the system as well. At the same time, by the early 80s, conservative politicians began to undertake a ‘war on drugs’ in which stiffer mandatory penalties played an important part. The convergence of interests in constraining the discretion of sentencing judges led to a wide array of new sentencing laws throughout the country. One author describes the changes as including ‘‘statutory determinate’ sentencing systems, new patchworks of mandatory penalty provisions, and a multiplicity of schemes (each different from the others) instituting sentencing commissions and sentencing guidelines’.³

In the federal system, Congress adopted the Sentencing Reform Act of 1984, creating the United States Sentencing Commission, comprised of a group of federal judges and other persons appointed by the President. The Act called on the Commission to conduct research and draft a set of ‘sentencing guidelines’ to govern sentencing in the federal courts.⁴ The Commission then conducted an empirical study of 10,000 federal cases to determine typical practices and devised a set of guidelines based on those findings.⁵

Ironically, at the same time that Congress created the Commission with the aim of establishing a set of rules to bring proportionality and uniformity to federal sentencing practice, it also enacted numerous heavy mandatory sentences for drug-related crimes. These rules had the effect of treating all drug offenders harshly, based on the amounts of drugs possessed, without regard to other factors that usually affect a proportionality analysis. Since these sentencing laws were mandatory, the Commission incorporated the tough legislatively-mandated sentence ranges into its guidelines for drug offences.

On 1 November 1987, the Federal Sentencing Guidelines took effect. Since then the Commission has amended the Guidelines 674 times, and the printed manual now consists of approximately 2,000 pages. The Guidelines call on judges to determine the numerical levels associated with the offence of conviction, specific characteristics of the offence (such as use of a weapon, for example), and an offender’s criminal history score. The computations then yield an offence level and a criminal history category. A sentence is then determined by reference to a sentencing grid.

The new system met with great disapproval from sentencing judges, who felt their discretion had been improperly diminished by a complex set of mandatory ‘guidelines’ that often produced inordinately long sentences and had the force of law. Appellate judges also lamented the increased workload that the Guidelines created—virtually every case raised a sentencing issue where prior to the adoption of Sentencing Guidelines only a few constitutional challenges to sentences were brought.

While judges perceived that their discretion had been diminished, the power of prosecutors to determine sentence by means of the charging decision increased dramatically. Since the Guidelines were mandatory, the charge a prosecutor chose to bring would dictate the sentence. In addition, a decrease in the sentence for offenders who assisted the government in prosecuting others could only be granted on motion by the government, and the decision whether to enter the motion was completely discretionary.

Not surprisingly, the effect of the new Guidelines (again, driven in large part by the mandatory minimum sentences enacted by Congress) was to increase the likelihood of an offender going to prison (from 46% to 75%) and the average length of incarceration.⁶ In addition, the Guidelines abolished the parole system, instead requiring offenders to serve a minimum of 85% of the sentence imposed. These changes increased the federal prison population considerably. There were other racially discriminatory effects due to Congress’s mandatory minimums and not attributable to the Commission’s Guidelines, but which went into effect about the same time as the Guidelines.

Guidelines systems in the states

A number of US states have also moved to create sentencing commissions and adopt sentencing guidelines of their own. At the end of the 1990s, 15 US states had introduced sentencing guidelines, while a further seven states and the District of Columbia were actively moving towards such a framework.⁷

However, in contrast to the federal guidelines system, the state guidelines reforms are widely perceived to have brought about marked improvements. Unlike the federal system, the state systems are not characterised by rigid rules and harsh mandatory minimum sentences. Instead, state guidelines systems are less complex, and feature increased sentencing flexibility and less harsh sentencing ranges. The use of guidelines, moreover, has offered the ‘ability to make accurate predictions of future sentencing patterns’, and ‘this capacity has been used to retard prison growth as compared to that in other states without sentencing commissions or guidelines’.⁸

Referring to state sentencing guideline systems, Professor Michael Tonry concludes that ‘sentencing commissions and their guidelines have proven themselves as the most effective prescription thus far offered for the ills of lawlessness, arbitrariness, disparity, and discrimination that were widely believed to characterise indeterminate sentencing’.⁹

Challenges to the guidelines

Guidelines systems ushered in a new era of the creation of substantive sentencing law. Professor Douglas Berman notes, however, that ‘significantly absent in all this sentencing lawmaking was a concern for sentencing procedures’.¹⁰ If guidelines sentencing rules call for increased punishment based on the quantity of drugs a person has trafficked, what procedural rules govern that factual determination? Is the decision made by the judge alone or by the jury? What is the burden of proof? Should such facts be alleged in the charging document?

Decisions both before and after the adoption of the Federal Sentencing Guidelines (and most state guidelines as well) approved the use of new rules to constrain judicial decision making without imposing new constitutionally-mandated procedures. For example, the Supreme Court held that there was no ‘double jeopardy’ violation when a prior conviction increased punishment through sentence calculations under the Guidelines. It also ruled that federal courts could be required by the Federal Guidelines to increase a sentence based on conduct relating to charges on which defendants had been acquitted. Moreover, sentencing fact-finding was done by judges alone, hearsay evidence was freely admissible, and the burden of proof was a preponderance of the evidence. Given the Court’s consistent approval of Guideline sentencing and its lax procedures, most observers assumed—after having survived almost 20 years of constitutional challenge—that Guideline sentencing was firmly established and constitutionally sound.

Beginning in the late 1990s, however, an increasing number of Justices began expressing doubts about the constitutionality of guideline sentencing procedures. Finally, in a 2000 decision in Apprendi v New Jersey, the Supreme Court issued the first decision having a major impact on sentencing fact-finding. In Apprendi, the Court declared unconstitutional a ‘sentence enhancement’ that had the effect of increasing the statutory maximum sentence to which the defendant was subjected, based on a judicial finding by a preponderance of the evidence. The Court held that the right to a jury trial requires that ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’¹¹

The Apprendi decision had the effect of striking down numerous federal and state sentence enhancements and also changed the way in which drug offences are charged and proved in the federal courts. Gone were the days when prosecutors could allege ‘possession with intent to distribute cocaine’ without also alleging and proving at trial the quantity of cocaine on which the sentence would be based. Apprendi, thus, brought about some dramatic changes—and the filing of thousands of appeals—but did not appear to require any major changes to the basic structure of guideline sentencing.

A constitutional roadblock

A pair of recent blockbuster cases dealt a ‘one-two’ punch to state and federal guideline sentencing. The first decision, Blakely v Washington, challenged the use of judicial fact-finding to increase the defendant’s sentencing range within a state guidelines system. Unlike in Apprendi, the judge in Blakely did not increase the statutorily authorised maximum punishment. Rather, the judge relied on his own factual findings to determine the applicable guideline sentence—a sentence within the otherwise applicable statutory sentencing range. No lower court had found such a procedure to run afoul of the Apprendi rule. Yet the Supreme Court found that this standard guidelines sentencing procedure violated the defendant’s jury trial right:

‘Our precedents make clear... that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his proper authority.’¹²

In dissenting, Justice O’Connor worried that the ‘practical consequences of today’s decision may be disastrous’ because the decision ‘casts constitutional doubt over [sentencing guidelines systems] and, in so doing, threatens an untold number of criminal judgments’. She concluded that ‘[o]ver 20 years of sentencing reform are all but lost; and tens of thousands of criminal judgments are in jeopardy’.¹³

The decision in Blakely sent state courts and legislators in the 15 guidelines state jurisdictions scrambling to adapt their systems so as to comport with the new jury fact-finding requirement. The Blakely decision itself touts one state’s response to Apprendi by which the legislature had created a jury fact-finding sentencing scheme, rather than simply reverting to indeterminate judicial sentencing. Likewise, a number of states following Blakely moved toward adopting jury fact-finding for sentences.

In the federal system, overwhelming confusion set in. Thousands of sentences in cases winding their way through the appellate courts were called into question. Defendants with pending sentencing hearings demanded that the courts refrain from judicial fact-finding and base their sentences only on the facts found by the jury. Other cases were put on hold pending resolution of the issue by the Supreme Court. Prosecutors became unsure of which facts they were required to allege in charging documents. Soon demands were emanating from numerous quarters for the Supreme Court to decide quickly whether the Blakely holding applied with equal force to the federal guidelines. In August 2004, the Court agreed to hear jointly a pair of cases addressing the applicability of the Blakely rule to federal guidelines sentencing.

On 12 January 2005, the Court issued its second ‘blockbuster’ case in the matter of Booker, finding that the procedure of judicial fact-finding under the Federal Sentencing Guidelines violated the constitutional jury trial right.¹⁴ However, rather than simply striking down the entire structure of federal guidelines sentencing (including its 2,000+ page manual and 600+ amendments), the Court ruled that the Guidelines could continue to be followed on an advisory basis, rather than mandatory basis, without violating the Constitution. Making the Guidelines advisory transforms the system in the direction of indeterminate sentencing, without entirely eliminating the use of Guidelines. In this manner, the Court avoided the necessity of engrafting ‘the Court’s constitutional requirement [of jury fact-finding] onto the sentencing statutes, which would destroy the system’.¹⁵

At this point, a number of divergent approaches have emerged for applying the Guidelines on an advisory basis at sentencing hearings. Appellate courts have also taken divergent approaches in deciding whether defendants who were sentenced before the rules were made advisory should get new sentencing hearings. Otherwise, it is too soon to tell the overall effect the Booker decision will have on federal sentencing. Congress and the Sentencing Commission will hold hearings, and presumably some changes will be made. As the Supreme Court itself stated:

‘Ours, of course, is not the last word: The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long-term, the sentencing system compatible with the Constitution, that Congress judges best for the federal system of justice.’¹⁶

Conclusion

The American systems of guideline sentencing produced vastly different results as implemented. Most state guidelines systems have yielded highly favorable results, and both court participants and legislators have found the systems quite satisfactory. However, at the federal level, for the most part, the opposite is true. Most observers of the Federal Sentencing Guidelines regarded them as overly harsh, complex, and arbitrary. They have also been blamed for a burgeoning federal correctional population.

The political and constitutional upheavals experienced recently may, in the end, have little to do with the right to a jury trial. Indeed, there is reason to question the legitimacy of the underlying premise of the Blakely decision finding a jury trial right to apply to any ‘essential’ factual finding that affects a sentence. Thus, the lesson for other countries may well be that guideline sentencing has great promise, but some attention should also be paid to the procedural rights that attend sentencing.

* Professor Sandra Guerra Thompson is the UH Law Foundation Professor of Law and Director of the Criminal Justice Institute at the University of Houston Law Center. She serves as an Adviser to the American Law Institute’s current project entitled, ‘Model Penal Code: Sentencing’, which is drafting model sentencing legislation for consideration by US state legislatures.

Endnotes

1. M Frankel, Criminal Sentences: Law Without Order (1973), 5.

2. Ibid, 24.

3. American Law Institute, Model Penal Code: Sentencing (2003), 2.

4. For a detailed explanation of the Commission’s mission and an explanation of the approach taken in the Guidelines, see United States Sentencing Commission, Guidelines Manual (2004), 1–15.

5. However, the Guidelines did depart from the typical practices with regard to white-collar offences, requiring more white-collar criminals be sentenced to prison time.

6. See Bureau of Justice Statistics, Prisoners in 1994 (2005), 12.

7. American Law Institute, Model Penal Code: Sentencing (2003), 46.

8. Ibid, 49.

9. M Tonry, Sentencing Matters (1998), 71.

10. D Berman, ‘The Roots and Realities of Blakely’ (2005) 19 (4) Criminal Justice 7.

11. Apprendi v New Jersey, [2000] USSC 57; 530 US 466 (2000).

12. Blakely v Washington, [2004] USSC 2665; 124 S Ct 2531 (2004).

13. Ibid.

14. United States v Booker [2004] USSC 3012; 125 S Ct 738 (2005).

15. Ibid.

16. Ibid.