Criticism of Federal Sentencing Guidelines

You asked for a brief discussion of the most common criticism leveled against the federal sentencing guidelines.

Based primarily on a quick examination of the available literature, the most common criticisms of the sentence guidelines appear to be:

1. The sentencing guidelines are too complex, inflexible, and severe and are much more so than guidelines designed by any other jurisdiction.

2. The process by which the federal Sentencing Commission developed and maintained the guidelines is less representative, open, and responsive than the procedures states followed to establish similar reforms and less consultative than the process by which the Federal Rules of Civil and Criminal Procedure were adopted.

3. Some prosecutors, defense attorneys, and probation officers are negotiating dispositions that adjust or sidestep the guidelines to produce reasonable sentences that trial judges will accept and that will not be appealed. Thus, a new sentencing disparity has developed between those that follow the guidelines to the letter and those who avoid them as unjust. This disparity occurs in a context that prevents oversight and obscures accountability. Evasion of guideline sentencing may occur in 20 to 35% of all guilty plea cases.

4. Sentencing guidelines do not save work or money. Developing, revising, and administering sentencing guidelines is expensive. The U.S. Sentencing Commission spent $9.6 million during fiscal year 1991. Ninety percent of the judges who responded to a survey by the Federal Courts Study Committee reported that the guidelines had made sentencing more, not less, time consuming. Appellate Courts review nearly 1,000 sentences a year.

5. The guidelines have not produced equal punishment for defendants similarly situated. By focusing on the crime and prior criminal history and not the precise circumstances of each case, they have sometimes produced unjust results.

6. The guidelines, especially regarding drug offenses, produce harsh results that often result in different treatment based on the race of the defendant.

7. The guidelines contribute to prison overcrowding.

Following is a brief discussion of the background of the creation and implementation of the guidelines and an expanded discussion of some of the most common criticisms. We have enclosed a copy of portion of a United States General Accounting Office study of the guidelines published in 1992; and portions of a relevant University of Chicago Law Review article (vol. 58, page 901, et seq. 1991) and a Yale Law Review article (Vol. 101, No. 8, June 1992, page 1681 et seq.)

Persuaded by arguments that the federal sentencing system produced unwarranted sentence disparity, Congress began to reform the system in 1984. First, it abolished the U.S. Parole Commission, which for 75 years had determined the suitability of federal inmates for early release. Second, it replaced indeterminate sentencing with determinate sentencing. Thus, instead of sentencing a person to a minimum and maximum sentence (eg., five to 10 years), the court would sentence the offender to a definite term, eg., eight years. The offender would be required to serve the full eight years minus a small discount for good behavior, followed by a period of supervised release. Third, in place of sentence review by a parole board, Congress authorized federal courts of appeals to hear appeals from sentences imposed by the district court judge. Finally, as the centerpiece of sentencing reform, Congress established an administrative agency, the U.S. Sentencing Commission, to become expert in sentencing research and to devise sentencing guidelines. A major goal was to reduce unwarranted sentencing disparity among similar offenders.

The Sentencing Commission promulgated a sweeping set of guidelines applicable to any federal crime committed after November 1, 1987, (52 Fed. Reg. 18.046 (1987); United States Sentencing Commission, Federal Sentencing Guidelines manual). The act, the commission, and the guidelines were immediately challenged by defendants in various parts of the country. The three main constitutional challenges were based on (1) the improper delegation of legislative power to the commission; (2) the blurring of the separation of powers implicated in the sentencing reform act, and (3) the due process rights of the offender sentenced under the guidelines. In Mistretta v. United States, 109 S. Ct. 647 (1989), the U.S. Supreme Court upheld the constitutionality of the guidelines against the delegation of powers and separation of powers arguments.

The commission acts as an independent agency within the judicial branch. It is composed of seven voting members appointed by the president with the advice and consent of the Senate. At least three of the members must be federal judges recommended by the Judicial Conference of the United States. No more than four members may be affiliated with the same political party. The term of office is six years. Members may be removed by the president for neglect of duty or malfeasance in office or for other good cause.

The commission's continuing duties include consulting penal authorities periodically to review and revise the guidelines. Any amendments take effect 180 days after the commission reports them to Congress unless Congress disapproved or modifies them. The commission also must analyze all sentences issued under the guidelines, report to Congress legislation it deems appropriate, and recommend changes in penalties where it thinks change is necessary. Each federal judge must consider all guidelines and policy statements in effect whenever deciding an appropriate fine, prison or probation term, or any combination.

The judge must state, in open court, his reasons for giving the sentence he imposes whether or not it falls within the guidelines. Judges must impose a sentence of the kind, and within the range established by the guidelines unless they find aggravating or mitigating circumstances of a kind or degree the Sentencing Commission did not adequately take into consideration that should result in a different sentence. Both the offender and the government may appeal for review of a sentence.

In constructing sentencing guidelines, the commission chose a comprehensive sentencing grid. In constructing the grid, the commission considers the seriousness of various offenses in the abstract and arrays these offenses from the most to the least serious along one axis. It devised a means of scoring the seriousness of the offender's criminal history and arranged criminal history scores along the other axis. Score the crime, score the defendant's prior record, and where the axes intersect, the grid specifies a sentence or sentencing range. The judge may move up a box or two to adjust for aggravating circumstances like carrying a weapon, or down a box or two to adjust for mitigating circumstances, like accepting responsibility for the crime or cooperating with the prosecutor.

The federal grid has 250 boxes. It specifies a range of sentences for each category of offense and each category of defendant. The maximum sentence range cannot exceed the minimum by more than 25% or six months, whichever is greater (28 USC § 994(b), University of Chicago L. Rev., vol. 58: 901).

The 1989 act required the Sentencing Commission to study the implementation and impact of the guidelines. The commission did so and issued its report in December 1991. In the study, 94% of the federal public defenders and 28% of the private defense attorneys maintained that sentence disparity had increased under the guidelines. Judges were about equally divided as to whether the guidelines increased or deceased disparity. Nearly 50% of the judges surveyed by the commission complained that the guidelines had gone too far in reducing judicial discretion. Over 40% indicated the guidelines were inflexible; nearly 40% said they overburden the judiciary and nearly one-third thought they overburden the prison system (Commission Study Executive Summary at 14).

SENTENCE DISPARITY BASED ON RACE AND OTHER IMPROPER CRITERION EXISTS UNDER THE GUIDELINES

A common criticism of the guidelines is that they do not reduce sentence disparities. The U.S. General Accounting Office (GAO) and U.S. Sentencing Commission recently evaluated the guidelines. Both GAO and the commission studied samples of offenders sentenced under the guidelines between April 1, 1990 and September 30, 1990. These analyses evaluated the relationship between an offender's race, gender, marital status, employment status, education and age, and the sentence imposed. The commission found disparity on the basis of race, gender, and employment status. Using the same data, GAO confirmed the existence of disparate treatment on the basis of race and gender.

Sarah Chambers, a federal public defender in New Haven, pointed to the crack and powder cocaine issue as an example of racial disparity in sentencing both under federal statutes and the guidelines. She indicated that the guidelines and statute treat crack 100 times more severely than powder cocaine. Thus, people who sell crack are subject to much more punitive sentences than are those who sell cocaine.

Five special public defenders recently tried to convince U.S. District Judge Peter Dorsey that providing greater penalties for crack than for powder cocaine sales is unconstitutional because Congress had a "racially discriminatory purpose" in creating the system of punishment. Crack is used primarily by minority group members and sold primarily by minority group members in the inner cities according to the complaint. The more expensive powder cocaine, on the other hand, is sold and used primarily by whites.

According to the challenge, someone caught with 35 to 50 grams of crack cocaine would receive 97 to 121 months in prison under the guidelines if he had no prior convictions. By contrast, a defendant would have to sell 3.5 to 5 kilograms of powder cocaine to receive a similar sentence.

Also according to the complaint, during a 12-month period ending September 30, 1992, 80% of crack prosecutions in Connecticut were against blacks and 20% against Hispanics. According to a recent Connecticut Law Tribune article (20 CLT 20, page 18, May 16, 1994), these statistics hold true on a national level as well. In 1992, 91.5% of all federal crack defendants were black, while 3% were white.

It will be very difficult for the challengers to prevail since they will have to show that Congress had a discriminatory intent when it passed the law. According to the Connecticut Law Tribune, every federal appeals court that has addressed the issue has rejected the argument that Congress had a discriminatory intent. The only federal case where the court held otherwise, apparently, is a Missouri case in which a federal district judge ruled that Congress' decision to impose higher crack penalties was based on unconscious racism (20 CLT 20, page 19).

Many federal judges have complained that the guidelines are unjust, unfair, too inflexible, and can produce unfair outcomes. Some judges have done more than complain. District Judge Lawrence Irving, a Reagan appointee, resigned from the bench because he could not "in good conscience continue to mete out sentences that are unfair." He cited the case of a 19 year old drug offender who had been sentenced prior to the guidelines. He had served six months jail and another five years on probation. He had remained drug-free throughout his five year probation period as evidenced by periodic drug testing. According to Judge Irving, the offender "completed his education, got married, had a child, and became a productive, tax-paying member of society." Under the guidelines he would have been sentenced to 20 years imprisonment, with no possibility of parole (Alschuler, page 925; Chi. Trib. § 1A at 6 (Oct. 1, 1990)).

Several federal judges have refused to handle federal drug cases, apparently because they believe the sentencing guidelines procedure is unfair and leads to unjust results. An April 17, 1993 New York Times article reported that around 50 federal judges have done so. The article focuses on two such New York federal judges, Jack Weinstein of Brooklyn and Whitman Knapp of Manhattan. The article quotes Federal District Judge William W. Schwarzer, the director of the Federal Judicial Center, the educational research agency in Washington for the federal courts, as saying that many judges believe the present system breeds injustice. He also said many judges believe that sentencing rules enacted by Congress provide for little or no judicial discretion and fill up prisons but do not improve the drug situation.

Judge Weinstein decided to stop handling drug cases after by the guidelines forced him to send a peasant woman from West Africa to prison for 46 months on a smuggling charge and to give a man 30 years in jail for his second drug offense. "These two cases," he said "confirm my sense of depression about much of the cruelty I have been party to in connection with the war on drugs."

The GAO study found that a variety of discretionary decisions by prosecutors, defense attorneys, judges, and probation officers can introduce unwarranted disparity into sentencing. These decisions include the choice of criminal charges filed, plea bargaining policy, and the extent of the presentence investigation. The guidelines, according to the GAO, increased both the importance of these decisions to ultimate sentencing and their potential impact on unwarranted disparity. For example, the GAO study found that in heroin distribution cases, both whites and Hispanics were more likely than blacks to have counts reduced or dismissed. It also found that, in general, those convicted by plea agreements tended to receive shorter sentences than those convicted at trial and that blacks were less likely to be convicted by plea agreement, than whites. The GAO study was not able to determine the extent to which disparity in presentencing decisions, such as plea negotiations, affected the ultimate disparity in sentences imposed.

The GAO study indicated there was considerable variation in how preconviction decisions were made under the guidelines. Some judges indicated a willingness to accept plea agreements with certain provisions that would affect the sentencing outcome while others said they would not. The commission's study found that prosecutorial charge reductions and other bargaining appear to have had an impact on the sentencing length in about 17% of the cases it examined and in 26% of the drug trafficking cases it examined.

A recent study conducted by Dene H. Hagle and Stephen J. Schulhofer found that prosecutors, through charging and plea decisions, affected sentences in 20% to 35% of the cases reviewed. They concluded the prosecutors did so largely to circumvent the guidelines for sympathetic offenders, especially to avoid mandatory minimum sentences ("A Tale of Three Cities: An Empirical Study of Charging and Bargaining Practices Under the Federal Sentencing Guidelines" Southern Cal. L. Rev. 1992).

Professor Albert W. Alschuler of the University of Chicago Law School has written a powerful criticism of the guidelines from the perspective of arbitrary and unfair results. We have included a copy of relevant portions of his article and brief discuss it in this memo. ("The Failure of Sentencing Guidelines," University of Chicago L.Rev., vol. 58: 901 (1991)). Alschuler cites a recent Superior Court decision to demonstrate what he consider to be bizarre, arbitrary, and unequal results that can be caused by rigorously applying the guidelines. It should be noted that the guidelines, were recently amended to eliminate the problem he addresses concerning the weight of the mixture or substance containing the drug but the discussion remains relevant to show how guidelines neutral on their face, can produce unfair results.

In Chapman v. United States, 111 S. Ct. 1919 (1991), the court held that blotter paper, gelation cubes, and sugar cubes containing LSD must be weighed, along with the drug itself, in determining an LSD dealer's sentence. The sentencing guidelines (as well as certain mandatory minimum sentencing statutes) make a dealer's sentence depend on the weight of the "mixture or substance" containing the LSD. The court construed this as requiring the weighing of the carrier medium as well as the drug.

Alschuler points out that a "hit" of LSD impregnated in a sugar cube weighs much more than the same hit in a piece of blotter paper. Thus, under the sentencing guidelines a dealer could have paid a tremendous price for choosing sugar over paper. The guideline sentence for a first offender who sold 100 doses of LSD in sugar cubes was 188 to 235 months. But the sentence would drop by two-thirds (to 63 to 78 months) if he had sold the same quantity of LSD in blotter paper. The sentence would have been cut more than 50% again (27 to 33 months) if the dealer had chosen gelatin capsules. The sentence would have been cut more than 50% again (10 to 16 months) if the dealer had sold LSD in pure form (111 S. Ct. at 1924 N.2).

Alschuler pointed out that even stranger, more unequal results could have occurred. LSD is commonly taken after dissolving the drug in liquid. A person who dissolved a single dose in a glass of orange juice would have been subject to a mandatory minimum sentence of 10 years (United States v. Marshall, 908 Fed 1312, 1332 (7th Cir. 1990) (en banc) (Posner dissenting)). He goes on to point out that a person who sold 199,999 doses in pure form without any "carrier medium" was subject to a five-year minimum. One of the defendants in Chapman v. United States received the same sentence for selling 12,000 doses of LSD that he would have received for selling between one and two million doses of heroin (Alschuler, at 919).

In response to this disparity, Chief Justice Rehnquist noted that LSD distributors make their own choice of carrier, and this could act to minimize their potential sentences. U.S. Court of Appeals Judge Posner, in dealing with this same issue, stated: "To base punishment on the weight of the carrier medium makes about as much sense as basing punishment on the weight of the defendant" (Marshall, 908 Fed. at 1333).

Thus, according to Alschuler, sentencing guidelines designed to promote equality in fact produced unequal results. Such results, he contended, would have been inconceivable under the old regime of discretionary sentencing (Alschuler, p. 920).

Professor Alschuler gave other examples of seemingly bizarre sentencing results from rigorously applying the guidelines. Unlike the previous example which was corrected by amendments to the guidelines, the following scenario presented by Professor Alschuler continues to be possible, according to federal defender Sarah Chambers. A drug runner who sold two vials of crack cocaine for $10 pleaded guilty. In calculating the quantity of crack on which his sentence would be based, the trial judge added the weight of 586 vials of crack that the defendant's supplier kept in his hat and that the police discovered following the runner's arrest. No evidence indicated the runner knew how much crack was in his supplier's hat. But, under the guidelines, the supplier's possession as part of the same course of conduct as the runner's conviction (Guidelines Manual §1B1.3).

The trial judge, applying the guidelines, would have had to sentence the runner to 63 to 78 months in prison. He previously had sentenced the supplier to 90 months. To avoid giving the runner a sentence that was so similar to the supplier, the judge deviated from the guidelines and sentenced the runner to 40 months. On appeal, the Court of Appeals reversed the trial judge, holding he could not deviate from the guidelines (United States v. Joyner 924 Fed. 454 (2d Cir. 1991)).

This, according to Professor Alschuler, points out the absurd results possible under the guidelines. The runner's sentence was determined by whether or not his supplier was caught and the quantity of drugs the supplier had when he was caught. Two defendants could be prosecuted for the same offense, but the presence or absence of the supplier and the amount of drugs he was caught with determines how each is treated (Alschuler, University of Chicago L. Rev., vol. 58: 901, 922).