Professional Documents
Culture Documents
Sentencing Class Notes
Sentencing Class Notes
1/23—Class 2
Federal Sentencing Reform Movement—
States did this too with sentencing reform done by commissions
Dramatic change w/ Sentencing Reform Act, however, many still criticize the SRA
o Not as much dissension w/in states
Different theory—states are more homogeneous and easier for states to deal w/ this and their populations as
opposed to a larger federal system
1
In new regime, you get fairness and certainty
o Fairness is achieved through the abolition of parol in federal court
o Pre-1987 under Rule 35, judges could reduce sentences for any reason
Guideline sentence after 1987 gets rid of uncertainty
Need “Good-Time” built into system to incentivize people to get out while in prison and help
control inmates
o Want to get rid of unwarranted sentencing disparities w/ Def’s who have been convicted of similar
conduct
There are regional disparities that are persistent and crop up even though judges sentence w/in
the range permitted
o Goal—certainty, fairness, and abolition of parol through the new regime while maintaining flexibility to
permit individualized sentences w/ mitigating or aggregating factories not taken into account
Sentencing Commission Created by Sentencing Reform Act—28 USC Sec 991-998 (APA doesn’t apply) —
No more than 3 fed judges appointed by Pres w/ advice and consent of Senate; 4 repubs/dems and 3 of the
other, have member of AG’s office; missing defense
o 2 protecting mechanisms—good cause removal and something else
Political bipartisanship
994(p)—Commission proposes amendments not later than the 1st of May, accompanied by statements of reason
from time to time and become effective in November, unless there’s an act of Congress that rejects them
o If the expert agency that formulates policy that is beneficial to “be sentenced defendants” a member of
Congress can say that they didn’t vote for the reduction in sentences, the commission did it
o Turning point in ’95 when commission amended the crack cocaine guidelines which punished crack
cocaine offenses w/ 1 gram the same as cocaine up to 100 grams (the famous 100 to 1 ratio) by 4-3
vote; commission came to realization that it created unwarranted disparities in sentenced, was racist bc
crack is in inner cities and cocaine in more affluent areas
Bring this down to 1 to 1 ratio and then Congress passes statute that undoes the amendment by
the commission that got rid of the 100 to 1 ratio
Congress took on micro-managing role and passed multiple statutes telling commission to revisit
certain things or to overrule the commissions changes that they proposed
o Commission won’t pass anything unless unanimous agreement by the commission to ensure that the
coast is clear, but this means that the commission won’t do anything bold or make a move unless
everyone agreed w/ what it did, which essentially disabled it due to fear of being overruled by Congress
again.
NOTE—SCOTUS finds in Booker in 2005 that the regime is unconstitutional of judges having to impose a
sentence w/in the mandatory range; makes the sentencing guidelines advisory
994(m)—new regime has increased severity in the sentencing
2
Think about what the original commission did re: offender characteristics (age, family ties, employment history,
etc…). what’d the commission do?
o 994(d) says in establishing categories of Def in guidelines, commission shall consider the following
matters among others … and lists 11 things including education, vocational skills, family ties, community
ties
In 994(e) then contradicts this and says that judge should not consider 5 of them
There’s a compromise in the guidelines—some people wanted to consider prior arrests bc
they’re indicative of recidivism rates; others didn’t want to do that bc arrests aren’t same as
convictions—this gets resolved by only having prior convictions in guideline computations
However, to get prior convictions in and not arrests, there was a compromise made
that took prior arrests which wouldn’t raise the guidelines of prior arrests and did only
so for convictions, but then offender characteristics were taken off of the table
(994)(e) does this).
When the guidelines were rendered advisory only and judges were obligated to consider
all of the factors in 3553(a) including the history and characteristics of the Def, the
upshot of that was to require judges to consider features of any particular case and
made the GL’s less effective
o 1 side of debate was that GL’s should have great weight bc they reflect expert
agency’s considered determinations of what the sentence should be in a
particular case
Presumption of probation in 994(j)—congress saying that commission shall ensure that the GL’s reflect the
general appropriateness other than imprisonment (probation) in cases where Def is 1st time offender and hasn’t
been convicted prior to this for an otherwise serious offense
o Otherwise serious offense = serious offense akin to a crime of violence, but you can’t argue that
Congress had in mind a body of offenses as to which judges ought to be told in the GL’s presumptively
probation (could be features of the def/offense that trump the directive)
The original commission makes a fundamentally normative determination by providing a
definition in the first GL’s by quoting 994(j) and says under pre-GL’s sentencing there were too
many probationary sentences given out
Commission is defining what is an otherwise serious offense and it is categorical—everyone is a
serious offense and the presumption of probation is therefore gone
o If the commission had put in language that said there was no crime of violence for a first time offender
or an otherwise serious crime, then sentencing outcomes would be much different
Mandatory Minimums—
Congress passes mandatory minimums for kingpins (10 yrs) and managers (5 yrs) and enhanced maximums (off
the rack judge charges goes mandatory minimum for manages 5-40 yrs and kingpins 10-life)
o There can be enhancements based on the type and quantity of drug being sold
o Decision of commission to link the GL’s caused drug trafficking sentences to increase 2 ½ times