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August 2009

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This article is in the news archives --- for current news go to the Third Branch News.

 

25 Years of the Sentencing Guidelines


Judge William Wilkins was the first chair of the U.S. Sentencing Commission, serving from 1985 to 1994.

There was major resistance to the sentencing guidelines from federal judges. District judges—and I was a district judge at the time—believed that the sentences they imposed were appropriate, or they would not have imposed them.

Historically, district judges had been accustomed to having broad discretion, and there was some resentment that Congress was trying to step in to channel that discretion. And, of course, that was exactly what Congress intended to do. The Commission was faced with a mandate from Congress. It wasn’t a question of whether we should write guidelines. The question was, what was the format and what was the approach the Commission was going to take?

That was the first real substantive issue we had to address. We were writing on a blank piece of paper. Ultimately, we decided to write the guidelines so they would mirror the thought process a district judge took when deciding on an appropriate sentence.

For example, the judge first determines the statute that is in question and the elements of the offense. Then the court looks to the actual facts that occurred in the individual case—exactly how a particular crime was committed, and if there were aggravating or mitigating factors involved.

Then the court moves on to the personal characteristics of the defendant, such as the role the defendant played in the commission of the crime, and whether the defendant obstructed justice, or accepted responsibility of his or her acts. Finally, the judge looks at, as do the guidelines, the criminal history of the defendant—is this a first offender or a recidivist?

I don’t believe that anyone realized the enormity of this task. You’re writing these mandatory guidelines with very detailed directions from Congress and the Sentencing Reform Act.

Early on, we did a quite exhaustive study of past practices, which proved to be very helpful. How were judges sentencing defendants under the discretionary system that the guidelines were replacing? What were the sentences for the various crimes? We believed that, if we were going to change the system, we needed to know what we were changing it from.

We spent a good part of a year doing that. Then we began to use that study as a basis on which to write the guidelines. Of course, it was very labor-intensive and politically charged, which made it a difficult task.

Then we had a major challenge on our hands to convince judges that, like it or not, the guidelines were here to stay and the best thing to do was to understand and apply them fairly. This was achieved in large measure through a massive national training effort that the Commission undertook, using probation officers from all regions of the country. We would train probation officers, who would then go back to their respective areas and train their fellow probation officers. If the system was going to succeed, we had to have the full support of the probation officers and, to have that, they had to be very knowledgeable about the workings of the guidelines. Then we organized a massive training program for district court judges.

Once the guideline system was understood, the degree of acceptance greatly increased. It is the fear of the unknown that many times produces resistance. So we tried to dispel this fear through education and, over time, we changed attitudes.

And now, with advisory guidelines in place, the system is working even better.

Judge Richard Conaboy was chair of the U.S. Sentencing Commission from 1994 until the end of 1998.

When I became chair, the concept of the U.S. Sentencing Guidelines was just beginning to gel. The original Commission had developed the guidelines. Prior to that time, judges used their own good judgment, and they had a lot of discretion—which got to be a very big word in those days—as to what sentence would be imposed in individual cases.

Many judges throughout the country had a great difficulty imposing the same sentence on everybody, as required by the new sentencing guidelines. As a matter of fact, I think at least 200 of the district judges around the country declared that the sentencing guidelines were unconstitutional. That’s what I faced when I arrived at the Commission.

I spent several years going all over the country, visiting with each district. I’d try to convince the judges that what they should be concerned with was not their discretion, but their responsibility. There was a way, even within the guidelines, to individualize cases. I like to feel we were instrumental in softening judges’ attitudes toward the guidelines.

When I arrived as chair, Congress had asked the U.S. Sentencing Commission to study and report on a very sore topic: sentences for crack cocaine were much more severe than sentences for powder cocaine. It has gotten to be known as the 100-to-1 ratio.

I asked them to delay a little bit and give my Commission time to study this 200-page report. In February, we recommended that the 100-to-1 ratio be done away with completely. Everybody agreed that the 100-to-1 ratio was too much, but there has been a dispute over the years as to what the ratio should be. I hope that legislation will change that.

It was a difficult job to design the guidelines and, with experience, they have changed often. I think the Commission has issued close to 1,000 changes in the sentencing guidelines over the period of years. The sea change was the Booker case and, finally, the guidelines are advisory and not mandatory. That was a tremendous change in the way individual sentencing judges look at how they arrive at a sentence.

One time I said to a senator, “The thing I didn’t like about the job of Commissioner is that it took so much time to get things done.” And he said to me, “Dick, it took us 12 years to get the concept of a sentencing commission. In a democracy like ours, it takes a lot of time to do things.”

Judge Diana E. Murphy was chair of the U.S. Sentencing Commission from 1999 to 2004.

I was amazed to be asked to go on the U.S. Sentencing Commission, because years before I had been one of the first district judges to declare the guidelines unconstitutional. When the White House Counsel’s Office called, I protested, “But I declared them unconstitutional!” The cool reply was, “Well, that doesn’t matter.”

Anyway, I understood how many judges felt about the guidelines. There were a few fans, but there was antipathy among many judges. Our Commission tried to be responsive to their concerns. We communicated when they complained. We tried to take up their concerns about changes. We had meetings, workshops, and surveys and worked closely with the Criminal Law Committee of the Judicial Conference. I would say all of that helped relationships.

Among the accomplishments of the Commission during my tenure was a 2002 cocaine report, which is what the Supreme Court relied on in Kimbrough to permit judges to consider the disparity between crack and cocaine sentencing ratios in sentencing offenders. We worked hard to demonstrate that the assumptions Congress had when it created this disparity no longer had validity.

Also during my tenure, House members decided they were going to write guidelines themselves because they wanted them tougher. They wrote some guidelines on sex crimes in the PROTECT Act, which had to be tidied up to fit in a highly calibrated guideline system in which proportionality is a big part.

We also spotted issues to which we wanted to respond. We developed an economic crimes package. We also set up an advisory group to see what incentives there were for corporations to avoid corporate crime, and another advisory group on Native American sentencing issues. We made amendments on the new drug, ecstasy; on methamphetamine manufacturing; human trafficking; intellectual property crimes; cybercrimes; terrorism; sexual predators; nuclear, biological, and chemical crimes; illegal re-entry; and also money laundering. And of course, there were always firearms offenses. So there were about 85 amendments and many new guidelines. We were really busy.

When I arrived, we wanted to make the guidelines more flexible and user-friendly. We wanted to lighten them where appropriate, but toughen them where it was needed. I think the sentencing guidelines are still evolving. The Supreme Court’s reasonableness standard at review could mean that we return to where we were before, when there were no guidelines without proportionality between sentences. One reaction being voiced in Congress is to develop more mandatory minimums.

Judge Ricardo H. Hinojosa was appointed USSC chair in 2004 for a term ending October 31, 2007. He is currently acting chair of the Commission.

The Supreme Court had just decided Blakely v. Washington when I became chair of the Commission in 2004 and would soon decide United States v. Booker. It is fair to say that the Booker decision immediately and significantly impacted the Commission’s work in carrying out all of its statutory duties under the Sentencing Reform Act of 1984.

Although making the federal sentencing guidelines advisory, Booker and subsequent Supreme Court caselaw reaffirmed the relevance of the guidelines and the importance of the Commission’s role. The guidelines continue to be the initial benchmark and starting point in all federal sentencings. Consistent with Booker and subsequent caselaw, the Commission has continued its core mission to promulgate new guidelines and guideline amendments in response to congressional statutes and directives as well as input and information it receives from the courts, Congress, the Executive Branch, prosecutors, federal defenders, and others interested in the federal criminal justice system.

Some thought judges would greatly alter their sentencing practices after Booker. In a significant majority of cases, however, judges are using their discretion to continue to sentence within the guidelines and through substantial assistance and other government-sponsored departures. This is largely due to the fact that the guidelines reflect the process that a district judge uses in deciding an appropriate sentence. I think judges understand and appreciate that the factors they must consider under 18 U.S.C. 3553(a) are the same factors the Commission has considered under the Sentencing Reform Act in promulgating and revising the guidelines. In fact, as I have traveled around the country, judges have commented to me that, post-Booker, they have a newfound respect for the guidelines and the role they play in helping them to determine an appropriate sentence.

One of the Commission’s noteworthy guideline amendments during the past few years was the reduction of the crack cocaine guidelines in 2007 and the decision of the Commission, pursuant to its statutory authority, to make that reduction retroactive in 2008. Earlier Commissions spent years paving the way for such a change. Judges, probation officers, federal defenders, and prosecutors have played a key role and should be commended for efficiently managing the increased caseload that retroactivity brought to the federal system.

Immediately after Booker, the Commission began to provide real-time data and analysis to Congress, the Executive Branch, judges, and others about federal sentencing practices and trends. I believe the Commission’s real-time data helped Congress to take a deliberative approach in considering whether any statutory changes were needed in response to Booker. The work done by judges, probation officers, and court clerks around the country to provide the Commission with the statutorily required case documents needed to compile accurate and thorough federal sentencing data has been very helpful. The Commission has continued to work with the courts to expand their ability to receive documents electronically to facilitate the prompt receipt of the information.

The Commission throughout the years has continued its efforts to provide training to, and receive input from, the federal criminal justice community on federal sentencing issues, including application of the guidelines. The Commission enjoys a close working relationship with the Judicial Conference of the United States through its work with the Criminal Law Committee and the Administrative Office of the U.S. Courts, and also works closely with the Federal Judicial Center on matters of mutual interest. The Commission continues to visit district courts across the country to provide specialized training and forums for discussion on federal sentencing issues. Another one of the Commission’s roles has been its continued research work on federal sentencing issues. On the 25th anniversary of the enactment of the Sentencing Reform Act of 1984, the Commission is holding regional public hearings across the country so that it can hear varied views from those involved and interested in the federal criminal justice process.

Being a judge who has sentenced many people during the 26 years I have been on the federal bench, I would say that my service on the Commission has enlightened me as to the process and hard work every member of the Commission and its staff engages in with regards to the Commission’s work, including each guideline and guideline amendment promulgated by the Commission.