SENTENCING REFORM
The first draft of the new determinate sentencing guidelines
has been published and the overwhelming response thus far seems
to be cries of dismay The Sentencing Reform Act of 1984 which
is included in the Comprehensive Crime Control Act of 1984
stipulated the formation of the United States Sentencing Commission
and promulgation of the guidelines Within the Sentencing Reform
Act Public Law 98473 was written sense of the Senate resolu
tion This was not law per se but an expression of the intent
of Congress in passing such major crime reform bill It would
seem this intention was waylaid disregarded or forgotten for
surely it has not resurfaced in the draft off the guidelines The
following is the full text of the Senate resolution as it appears
in the 1986 edition of the Federal Criminal Code and Rules
Sentencing Considerations Prior to Enactment of
Guidelines Section 239 of Pub.L 98-473 TitleII II Oct 12 1984 98 Stat 2039 provided
Since due to an impending crisis in prisonovercrowding available Federal prison space mustbe treated as scarce resource in the sentencingof criminal defendants
Since sentencing decisions should be designedto ensure that prison resources are first andforemost reserved for those violent and seriouscriminal offenders who pose the most dangerousthreat to society
To improve by correction of error or removal of defectsto abolish abuse American Heritage Dictionary
Since in cases of nonviolent and nonseriousoffenders the interests of society as wholeas well as individual victims of crime can
continue to be served through the imposition of
alternative sentences such as restitution and
community service
Since in the two years preceding the enactment of sentencing guidelines Federal sentencing practice should ensure that scarce prisonresources are available to house violent and
serious criminal offenders by the increased useof restitution community service and nonseriousoffenders Now therefore be it
Declared That it is the sense of the Senatethat in the two years preceding the enactmentof the sentencing guidelines Federal judges in
determining the particular sentence to be imposedconsider
the nature and circumstances of the
offense and the history and characteristics of
the defendant
the general appropriateness of imposingsentence other than imprisonment in cases in
which the defendant has not been convicted of
crime of violence or otherwise serious offenseand
the general appropriateness of imposingsentence of imprisonment in cases in which the
defendant has been convicted of crime of
violence or otherwise serious offense
How Sentence Will Be Determined
The draft guidelines outline 12 steps the Court should take in
determining sentence In brief they go something like this
Determine the statute the offender has been
convicted of violating
Statutory Index at the back of the guide
lines then refers the Court to specific
section in the chapter on Offense Conduct
This chapter assigns base offense value
numerical figure to the offense The
Court then adds or subtracts points for
special offense characteristics thus aggra
vating or mitigating the base offense score
Steps and are repeated for each offense
of conviction
Then the Court refers to chapter in the
guidelines which covers applicable adjustments
for Offender Characteristics Points are
added or subtracted to aggravate or mitigate
the base offense score further
When all offenses have been thus scored the
Court totals the offense values
There is an adjustment for PostOffense Conduct
obstruction of justice and perjury acceptance
of responsibility cooperation
There is also an adjustment for Criminal History
The new total is the offenders Sanction Unit
Score
The Court then refers to the Sanction Unit Guide
line Table and sentence is assigned within the
applicable guidelines
In the above steps where the Court is instructed to add or sub
tract points for special Offense Characteristics or Offender Charac
teristics it is clear from reviewing the lists and lists and lists
of aggravating factors and the list of mitigating factors that the
Court is not fond of subtraction
See Sentencing samples p.56f this article
See Offender Characteristics 15 of this article
What Does RealOffense Mean
Although judges would have to consider variety of factors in
sentencing under this proposed modified realoffense approach the
approach itself bears marked resemblance to the working practices
of the Parole Commission Under current law the Parole Commission
can by Preponderance of the Evidence use evidence or indictments
not used at sentencing to aggravate an inmates release date If
this modified realoffense system is adopted defendant indicted
on homicide charges later reduced to manslaughter would essentially
be sentenced under homicide sentencing guidelines nonetheless Thus
judge like the soon to be abolished Parole Commission could
consider factors the defendant thought mooted by agreement to the
negotiated plea Critics of this system point out the obvious
impact this would have on defendants incentive to plea bargain
or cooperate with the Government There will not be much of
bargain in plea bargaining
In its commentary the Commission does point out this and other
concerns involved in realoffense system Without incentives
defendants have nothing to lose and everything to gain by going to
trial Critics suggest that even 10 to 15 percent decline in the
guilty plea rate would require the Courts to double their current
load of trials to maintain the current rate of disposition That is
an alarming thought
The near opposite Of realoffense system charge of convic
tion system is also described in the draft guidelines In charge
of conviction system defendants know what their sentence is likely
to be at the time they plead guilty in plea agreement However
fair sentencing system must take into account at least some of
the real uncharged elements of crime All defendants sentenced
for say tax evasion could not be sentenced identically regardless
of wide variances in the dollars involved in the offense
In conclusion the Commission felt these and other considera
tions pointed to need for modified realoffense structure For
sentencing purposes only those real elements that are importantly
bound up with the conduct that constitutes the crime charged are
to be included The judge uses the guidelines specifically the
special Offense Characteristics listed with each offense and the
list of explicitly crossreferenced aggravating harms and conduct
associated with the particular offense to determine which conduct
should be taken into account Here is how it is explained in the
draft itself
Prior to sentencing an offender convicted of bank robberythe judge will look up bank robbery in the guidelines An
explicit reference to the amount of money stolen and crossreferences to those aggravating physical harms and conductthat typically accompany most bank robberies are given The
judge will not find any reference to conduct e.g drugtrafficking that is unusual in bank robbery The guidelines take account of those harms and conduct that it lists
or crossreferences They do not take account of any otherconduct Such other conduct will affect the sentence onlyif the offender is charged and convicted separately
The following examples demonstrate how modified realoffense sentencing works under the preliminary guidelines
The offense of conviction is distribution of
cocaine Evidence at trial established thatthe offender used twelve-year old child to
transport the drugs
The offense value for distribution of cocaine is
aggravated by the offense value for usingminor child as conduit for distributing drugsThe involvement of the child is related to andis an act done in furtherance of the offense of
conviction
The offense of conviction is distribution ofcocaine After the offenders arrest officersexecute search warrant at the offendersapartment The search reveals no other evidencelinking the offender to other drug transactionsHowever an illegal shortbarreled shotgun isrecovered No indictment or conviction resultsfrom seizure of this weapon at the time of
sentencing
The offense value for the shotgun is not underthese circumstances added to the offense valuefor the drug distribution The possession ofthe shotgun is not related to the offense of
conviction
The offense of conviction is conspiracy to stealand forge one social security check At sentencing the judge finds by preponderance of theevidence that the offender stole forged andcashed 20 checks
All of the offenses related to the 20 checks donein furterance of the conspiracy or that resultedtherefrom are used to calculate the total offensevalue for the conspiracy
The question we still have about this system is will this type
of real but uncharged information still appear in the Government PSI
If the judge supposedly cannot use the information in establishing
the sentence then why should it be in the Government PSI Rule 32
conflicts correction of PSI controversies will continue if this
issue is not resolved prior to finalization of the guidelines
An important related issue concerns sentencing facts When
sentencing fact is disputed the judge is to determine the fact
using Preponderance of the Evidence standard If hearing becomes
6--
necessary the Government will bear the burden of proof for any aggra
vating factors but the defendant and the defense bear the burden
for mitigating factors If Preponderance of the Evidence standard
is to be applied to mitigating factors as well defense would be
less than wise to greet the day of sentencing without having reviewed
the Government PSI and without defense PSI ready in hand to docu
ment preponderance of evidence for any mitigating factors which
could well prove to be time savers for the defendant
The New Guidelines And Sentencing Alternatives
Results from recent study by the Bureau of Justice Statistics
show that the nations state and federal prison population is not
only growing but accelerating at rate of approximately 1000 new
prisoners each week Other statistics from this same source indicate
that Category One offenders make up at least onethird of our prison
population The majority of which are first offenders of non-violent
crimes The sense of the Senate resolution repeatedly emphasizes the
great need to recognize prison space as scarce resource and to
reserve its use for offenders of violent crime who need to be removed
from society for the protection of all The impetus behind the Nunn
Armstrong bill on sentencing reform which led to the Sentencing
Reform Act of 1984 was to stop the useless waste of taxpayer dollars
being spent to keep nondangerous offenders behind bars The pro
posed guidelines do not address the issue of alternatives to lengthy
incarceration If guidelines are not going to be provided to the
Court which recoimnend sentencing options other than incarceration
for first offenders of nonviolent crimes or options to be paired
with shortterm incarceration let the Court request sentencing
alternative plan from the defense This would provide the Court
with focal point from which to work in deciding an appropriate
sentence Unless the guidelines are revised before enactment to
allow wider range of Sanction Units as at least possibly eligible
for alternatives to incarceration this suggestion is close to
pointless
The guidelines table which converts an offenders total Sanction
Units into term of imprisonment does not specifically include any
alternative sentencing options Sanction Units less than 14 result
in term of imprisonment from zero to six months The Court may
added therefore impose sentence other than imprison
ment on offenders whose units total less than 14 Sanction Unit
totals of 14 or more will require added the Court to
impose some term of imprisonment
The tables below are from the new guidelines and will give the
reader some idea of what offenses in terms of monies or drugs
involved would be eligible for sentence other than incarceration
Few Even though some of the tables seem to represent small number
of offenders who might be eligible for alternatives the base score
in the table does not take into consideration the multiple aggrava
ting factors available to the Court which will convert potential
alternative sanction into incarceration In reality there appears
to be no alternative sentencing options available to the majority
who are eligible The number of persons incarcerated right now who
are eligible is phenomenal first time offender of nonviolent
offense with no priors rated above 14 Sanction Units would not be
eligible for an alternative to incarceration as the guidelines now
stand The Commission does include lengthy commentary on severar
proposed methods for converting Sanction Units into terms of impri
sonment as well as into sentences other than imprisonment However
there are no guidelines or even specific suggestions for the Court
on the appropriation of sentences other than incarceration
OFFENSES INVOLVING PROPERTY OFFENSES INVOLVING INCOME TAXES
Monetary Value
Up to $10001001 20002001 50005001 10000
10001 2500025001 5000050001 100000
100001 200000200001 500000500001 1000000
1000001 20000002000001 5000000
Over $5000000
OffenseValue
12
16
20
24
30
36
42
48
54
60
Deficiency
Up to $10001001 50005001 10000
10001 2000020001 3500035001 7000070001 120000
120001 200000200001 350000350001 600000600001 1000000
1000001 2000000Over $2000000
BaseOffenseValue
10
12
14
16
18
22
26
30
36
42
48
54
60
OFFENSES INVOLVING DRUGS
Amount Base Offense Value
kg or more cocaine 180kg to kg cocaine 168
500 gIns to kg cocaine 144250 to 500 gms cocaine 132100 go 250 gms cocaine 7225 to 100 gms cocaine 6610 to 25 gms cocaine 48
10 gins cocaine 28
20000 lbs or more marijuana 1082000 to 20000 lbs marijuana 72200 to 2000 lbs marijuana 4850 to 200 lbs marijuana 3210 to 50 lbs marijuana 24
to 10 lbs marijuana 18lb marijuana 12
As they now stand the guidelines do not require or suggest that
the Court deliver an alternative to incarceration even for those
cases where the Sanction Units do fall below 14 It is left entirely
to the discretion of the Court It is an established fact that the
United States has the longest sentences in the world and one of the
highest crime rates.1 There is no evidence that longer sentences
provide greater ceterrence to the offender or wouldbe offender
than short ones.2 AS the prosecutorially oriented reforms begin to
1James Jay State Prisons on Trial State LegislaturesVol Feb 1979 p.S
2lbid Jay p.4
10
jell the onus falls with increased heaviness onto the shoulders of
the defense counselor to aggressively represent the defendant at
the time of sentencing documented defense PSI which intelligently
reviews the facts of the case and highlights the mitigating aspects
is essential to an informed sentencing decision Eighteen U.S.C
3553c states The Court must explain its specific reasons for
imposing sentence at particular point within the range or out
side the range in open Court at the time of sentencing The judge
can readily point to specific tables and offense and offender charac
teristics in print in the guidelines with assigned numerical values
as the reasons for aggravating the defendants base offense score
As the guidelines stand now there are no corresponding lists for
mitigating factors whereby the base offense score might be reduced
Although the Commission states it has yet to fully consider the
weight to be given such basic offender characteristics as age educa
tion previous employment record family ties and responsibilities
community ties and so on and seeks the publics input on such
matters as it now stands these are not addressed formally within
the structure of the guidelines Any list of mitigating factors
to be used at sentencing which bear with relevance on the facts of
the case will not come from the sentencing guidelines or drop from
heaven In some respects guidelines alone could not address these
factors not entirely An individual life has very individual cir
cumstances which give rise to the situation bringing the defendant
before the Court defense PSI prepared to aid the attorney on
behalf of the client must address sentencing alternatives whenever
appropriate One of the purposes of defense PSI is to document
11
specific mitigating factors investigated and researched whereby the
Court can view the offender and the offense in the context of the
offender as an individual person past present and future This
document can serve as an immediately available written record from
which the judge can identify mitigating facts that support reduc
tion of the defendants Sanction Units to render decision at or
near the lower end of the applicable guideline range This is the
only opportunity for the defense to influence the time client will
serve in jail There is no parole Time sentenced is time served
under the new guidelines
It is hard to believe that the purposes of sentencing and
justice will be met by sentencing an 18-year-old the same as 40-
year-old under identical guidelines as if both had equal culpability
and ability to evaluate themselves and their behavior Any one of
us at least age 30 or older can look back at ourselves at age 18
and readily admit we were not capable of the insight and foresight
we can now bring to our decisionmaking process as result of our
longer life experience And who could possibly believe that justice
and the community are better served by paying $15000 to $17000 per
year to house man in jail for refusal to file tax charge of
$16000 when he could have served as community volunteer in
local hospital filling staff position normally costing the hospital
$14000 in salary Through community service sentence this individ
ual could begin paying back his debt to society real and moral And
who would willingly turn over their personal tax dollars to foot the
bill for imprisoning young man for taking six bags of dirt from
National Park Surely he requires punishment but who is being
12
punished by sending him to jail Perhaps under our current federal
system alternatives to incarceration do not receive widespread
attention or popularity among judges or the public but they are
available and on occasion wisely selected and used These prelimi
nary guidelines seem inclined to preclude the use of alternatives
to incarceration to any degree which would make them practical and
helpful to our current judicial and prison systems not to mention
society
In any project corporate or personal there are goals Some
are stated some are implicit some are private The Senate resolu
tion states some very obviously worthy goals The Comprehensive
Crime Control Act of 1984 with its first time ever written purposes
of sentencing stated some goals for our federal sentencing practices
The Sentencing Commission holder ofmanygoals states its long term
goals as achieving workable fair and effective sentencing guide
lines The implicit goals of the crime reform wave sweeping across
our country are perhaps goals for greater personal safety crime
reduction reduction of sentencing disparity But upon reading
through the draft of these guidelines albeit filled with underscored
requests for comments and assumed future revisions prior to finaliza
tion it seems the private goal being sought by our justice system
and current administration is to add another title to our countrys
image-making machineryCrime Busters of the Universe
13
Constitutionality Of The Proposed Guidelines
The Supreme Court has ruled that the Sixth Amendment forbids
penalties against defendants who choose to stand trial but does
not forbid proper degree of leniency in return for guilty pleas
Corbitt New Jersey 439 U.S 212 223 l978 An individuals
right to trial is Constitutional right the basic foundation
of which may be threatened by these new guidelines witness at
one of the Commission hearings Edward Marek federal public
defender for the Northern District of Ohio testified that an expli
cit system-wide automatic discount which would apply in 90 percent
of all cases might well be viewed not as leniency but as means of
.4penalizing those who do not accept it It is appearing to many in
criminal justice circles that mitigating sentence by admission of
guilt is fine-line issue which the Commission must walk bit more
convincingly if these new guidelines are to be endorsed as they
stand
This is not to say that cooperation should not have its due
rewards but the message in the guidelines appears to be Plead
guilty cooperate and in turn few points will be deducted from
your offense Sanction Unit score However if you have been con
victed of greater charge than the one you pled to you will be
sentenced nonetheless based on the Sanction Units assigned to the
greater charge It sounds like the interest earning checking
3Criminal Justice newsletter Vol.17 No.19 October 1986
4lbid
14
accounts with monthly service charge for balances below certain
dollar amount. .whatever you gain in interest you lose in service
charge One of the concerns of using cooperation as mitigating
factor in sentencing is that it considers only those people who
literally admit to crime despite their right to trial and
fair trial at that
Aggravating And Mitigating Offender Characteristics
In calculating an offenders Sanction Unit score the Court has
three Offender Characteristics to assess Role in the Offense
Post-Offense Conduct and Criminal History
Role in the Offense Titles are not controlling
It is the offenders role in the offense of con
viction that is significant There are various
characteristics such as position of control over
criminal enterprise supervising another person
in the commission of the offense or using
special skill in the offense which multiplies an
offense score by set number If the offender
was minor participant the score is reduced
based upon culpability and the nature of the
criminal conduct involved The appropriate
numerical multiplier for some of the considerations
listed is decided by the judge For first conviction for engaging in continuing criminal enter
prise the base offense value is 120 or the total
of the offense values applicable to the predicate
offenses whichever is greater
15
Post-Offense Conduct This section includes
Obstruction of Justice whereby the judge selects
an appropriate numerical multiplier to assign to
such considerations as attempts to conceal or
destroy evidence offering untruthful testimony
directing another person to offer perjured tes
timony The second characteristic is Acceptance
of Responsibility whereby the offenders Sanction
Unit score can be decreased by an amount not to
exceed 20 percent of the base score if the judge
finds through Preponderance of the Evidence
that the defendants acceptance of responsibility
has been established This may be accomplished
through such activities as voluntary surrender
before charges are filed voluntarily making
restitution or other objective steps towards
rehabilitation This is one of the few areas
whereby mitigating factors may be assessed and
used to decrease Sanction Unit score This
is separate category from Cooperation
Cooperation is the third characteristic in this
section The text from the guidelines reads thus
COOPERATION
If the United States Attorney certifies thatthe offender provided truthful and signifcant information regarding the criminal activities of another person or persons multiplythe total offense value from Chapter Two by.8
If the United States Attorney certifies thatthe offender actively assisted authorities in
an ongoing investigation or provided truthfuland significant testimony before grand juryor in court proceeding multiply the totaloffense value by .7
If the United States Attorney certifies thatthe offender provided exceptional assistanceto law enforcement authorities multiply the
total offense value by .6
16
The last statement provides for 40 percent
reduction for exceptional cooperation
The third section under Offender Characteristics
is Criminal History The introductory text from
the guidelines reads as follows
sentence adjustment for an offenders criminalhistory can be justified on both just punishmentand utilitarian grounds From just punishmentperspective repeat offenders who have alreadyexperienced intervention from the criminal justicesystem has ignored warnings Therefore they aredeemed more blameworthy than offenders who have notbeen confronted previously The amount of the
sentence adjustment that is justified by criminalhistory is subject of debate but many just punishment proponents accept some sentence modification for criminal record
Crime control arguments provide stronger justification for using criminal history to adjustsentence Criminal record is strong predictorof recidivism As result it is often used to
increase the length of imprisonment and the levelof supervision for offenders thus addressing incapacitation and deterrence respectively
The major components of the criminal historyadjustment are the number and severity of sanctions imposed for prior convictions and whetherthe offender was under criminal justice controlduring the commission of the current offense orhad recently been released from custody These
components reflect the extent seriousness andrecentness of criminal history An additionalitem deals with the use of heroin opiate derivatives and other dangerous drugs decayfactor is used to eliminate old offenses fromthe criminal history adjustment
The Commission invites public comment on the
appropriate relationship between criminal record
and sentence The guidelines contain criminal
history score table based on the role criminal
history has played in past sentencing decisions
17
as focal point for examining various alternative
approaches The following is taken from the guide
lines listing the areas to be considered in calcu
lating the criminal history score The total score
is then applied to the criminal history score
table which relates that score to the base offense
score and determines the final number to be added
to the base offense score
Score at least points for each prior sentenceof imprisonment for maximum term of more thanone year For each such term
score points if the offender served less
than three years
score points if the offender served threeor more years but less than five years
score points if the offender served five
or more years
Score points for each prior sentence of imprisonment for maximum term of 60 days or more that is
not counted above
Score point for each prior sentence that is notcounted above
Score points if the offender committed the current offense
while under any form of criminal justicecontrol including probation parole or
supervised release custody or escapestatus or any form of release pendingtrial sentencing or appeal or
within three years after any release from
imprisonment on sentence counted in
above or within three years after the
imposition or commencement of any sentencecounted in above
Score points if the offender had positiveurine test for heroin or any other opiatecocaine or PCP either at the time of arrestduring the pretrial release period or duringthe presentence release period or scorepoints if the offender is determined to have
been an abuser of heroin or any other opiatecocaine or PCP within ten years of the currentconviction
18
The chapter on Offender Characteristics concludes
with two major considerations Plea Agreements and
Other Offender Characteristics The plea agreement
section consists of list of unresolved issues
about which the Commission solicits public comments
The remaining Offender Characteristics are ones the
relevance of which has not been determined
The Commissions authorizing legislation requiresit to consider whether number of offender characteristics have any relevance to the nature extentplace of service or other incidents of an appropriatesentence and to take them into account only to theextent they are determined relevant 28 U.S.C 994dThe characteristics are
ageeducationvocational skillsmental and emotional condition to the
extent that such condition mitigatesthe defendants culpability or to the
extent that such condition is otherwise plainly relevantphysical condition including drugdependenceprevious employment recordfamily ties and responsibilitiescommunity tiesrole in the offense
10 criminal history and11 degree of dependence upon criminal
activity for livelihood
Comparing The Old And The New
It would be difficult to draw perfectly equal comparisons since
the scoring systems between the old and new guidelines are not the
same However looking at some basic examples readily establishes
comparison
19
Months To Serve
Offense Example Under Old Guidelines Under New Guidelines
10 50 lbs marijuana to 22 months 12 to 18
depending onSalient FactorScore
200 to 2000 lbs marijuana 12 to 44 36 to 44
depending on
Salient FactorScore
to kilos cocaine 40 to 100 132 to 210
depending onSalient FactorScore
20000 or lbs marijuana 40 to 100 96 to 120
depending on
Salient FactorScore
500000.00 property offense 40 to 100 24 to 30
depending on
Salient FactorScore
From these and other examples across old and new guidelines
some patterns stand out Drug offenses of small quantities start
out with higher guidelines under the new system with upper limits
close to the old limits Penalties for larger quantities start
very much higher with higher maximum terms Some white collar
offenses have comparable or lower penalties under the new guide
lines compared to the old
It is understandable that we would all like there to be less
crime in our country less fear of crime but longer tougher senten
ces and classifying all criminals in the same category will not
bring the sought after results This last resort emotionalism
20
will not remedy the situation Too many of the wrong offenders are
being sent to prison in droves occupying precious space which is
then unavailable for the violent offenders and it does not appear
that the new guidelines will alter this pattern they may in fact
increase the problem The vision of criminal law reform that
began as progressive is looking dismally repressive
One of the most distressing lacks in the draft of the new
guidelines is strong provision for lessening sentence severity
based on the youthfulness of the offender By incarcerating 18 to
20yearolds to the severity level presented in these new guide
lines we are jeopardizing the very essence of our humanity The
very heart of Americats future is demoralized by incarcerating our
young people for extended periods of time This is so applicable
to cases of youthful first time offenders At 18 with your whole
life before you there is sense of invincibility which precludes
an adult grasp of cause and effect relationships We are not
leaving any latitude for judges to work with youthful offenders in
alternatives to incarceration The new guidelines mention youth
as mitigating factor to be discussed between now and finalization
but in this the Sentencing Commissions conclusive draft developed
as result of enormous input from criminal justice professionals
no regulating procedure or point values are mentioned to account
for youth as mitigating factor in determining sentence Even
if two three or four points were deducted that does not change
the rate of incarceration to such degree that young person will
have chance to resolve their difficulties and return to life
The guidelines would not drop from ten years to two years but only
21
perhaps nine We really need to focus on rehabilitation for young
people not punishment for punishments sake
Summary
We have attempted in this article to represent what we have
identified as the most urgent concerns for those interested in
sentencing reform Much of the information contained in the article
comes from the actual draft of the guidelines and Commissions
commentary therein
National Legal Services is dedicated to sentencing alternative
planning and the preparation of defense presentence reports to enable
defense attorneys to be more effective sentencing advocates now and
in the future
wise statesman once said There are two things people
shouldnt watch being made sausages and laws
from The Advocate Vol.8 No.4 June 1986
22--
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