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U.S. sentencing guidelines need an overhaul

Sentencing is one of the most significant acts exercised in a society, as it determines whether and how the liberty of another is to be restricted. For most of American history, federal judges possessed almost unlimited discretion in sentencing, as long as the sentences they handed down fell within established — and generally wide — statutory limits.

This individual discretion led to sentencing disparities throughout the country, and even within the same districts, and spurred Congress to eventually introduce uniformity. In 1984, Congress created the U.S. Sentencing Commission, an independent agency within the federal judiciary, and charged it with establishing sentencing guidelines applicable to all federal judges. In 1987, the commission promulgated the first Guidelines Manual. The guidelines generally codified the average sentences that had been imposed by judges, but the commission broke from past practice in a critical respect: Taking its cue from the mandatory minimums in the Anti-Drug Abuse Act of 1986, the guidelines set severe penalties for drug offenses.

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The guidelines replaced judicial discretion with a complex and cold point system, reducing the solemn act of sentencing another human to arithmetic. And the guidelines don't appear to have sprung forth from any coherent source of principles. Today, 30 years after their introduction, some judges are not following the guidelines. And as compliance decreases, so too does the ability of the guidelines to achieve their main objective of curbing sentencing disparities.

Given these issues, the commission, to its credit, has been considering starting over. "Instead of continuing to tinker with the advisory guidelines, we now need to tackle a more fundamental reform," declared Judge William H. Pryor Jr., the commission's acting chairman.

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Congress and the new administration must support the commission's broader efforts at designing a new guidelines system by: providing much needed statutory flexibility to the commission and by convening sentencing experts to generate a deeper source of ideas from which the commission may draw.

First, Congress should clear the way for the commission to engage in meaningful reform. For example, Congress should sparingly impose mandatory minimum sentences. These statutory minimums represent Congress' clear expression of the seriousness of certain offenses, but they come at the cost of judicial discretion and also frustrate orderly guideline development.

Moreover, Congress should eliminate the "25 Percent Rule," which provides that the maximum imprisonment time for each sentencing range may not exceed "25 percent or 6 months" of the minimum, whichever is greater. This rule helped produce the bloated 258-cell sentencing table (made from combinations of 43 offense levels and six criminal history categories), and it ties the hands of the commission to craft a simplified system.

More generally, Congress also can make clear that eliminating unwarranted sentencing disparities is an important interest, but not the only one. Focusing on disparities alone can lead to unwarranted uniformity. And while Congress in the 1980s was skeptical of rehabilitation, Congress of today can acknowledge that rehabilitative efforts can work. In short, by giving the commission more room to operate and by addressing the underlying goals of sentencing, Congress can assist the commission in putting together a more workable and effective guidelines system.

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Second, Congress should convene hearings and receive testimony from members of the sentencing community — including judges, academics, attorneys and victims' advocates — on what the new framework should look like. These "external" ideas can be very influential. For example, an American Bar Association task force proposed a modified guideline for fraud offenses that has informed sentences and compelled the commission to respond. Congress similarly can add to the marketplace of sentencing ideas by calling together leading voices on punishment, and in doing so can enrich the universe of alternatives that the commission must consider.

Justice Ruth Bader Ginsburg has likened the law to a pendulum. This conception of the law is particularly apt in the context of federal sentencing. In 1984, Congress responded to unstructured sentencing by erecting a rigid guidelines system. Today, more than marginal adjustments to the guidelines are in order. Congress must do its part to move the pendulum toward a more sensible and simplified federal sentencing system.

Dawinder S. Sidhu, an attorney from Maryland, served at the U.S. Sentencing Commission as a Supreme Court fellow and as special assistant to the chair. His proposed guidelines model is forthcoming in the Maryland Law Review. His email is dsidhu@shb.com.

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