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11 Fed. Sent'g Rep. 180 (1998-1999)
Federal Sentencing Guidelines Revisited

handle is hein.journals/fedsen11 and id is 182 raw text is: Federal Sentencing Guidelines Revisited JUSTICE STEPHEN BREYER Associate Justice Supreme Court of the United States Presented to the University of Nebraska College of Law, Roman L. Hruska Institute in Lincoln, Nebraska November 18, 1998 Thank you for the invitation to speak here in Nebraska at your program on the Federal Criminal Sentencing Guidelines. I shall talk today about the Guidelines' history. I worked for the Senate judiciary Committee when Con- gress considered sentencing reform. And I was a mem- ber of the original Sentencing Commission, from 1985 to 1989, when Judge Billy Wilkins was the Chairman. Speaking from that perspective, I shall remind you of the Guidelines' original purposes, discuss the most difficult problems that we, the original Commission, sought to resolve, refer briefly to at least one important contemporary criticism, and make several recommen- dations intended to provoke further discussion. I. Original Purpose The Guidelines sought greater fairness and honesty in sentencing. In seeking greater fairness, Congress, act- ing in bipartisan fashion, intended to respond to com- plaints of unreasonable disparity in sentencing - that is, complains that differences among sentences reflected not simply different offense conduct or different offender history, but the fact that different judges imposed the sen- tences. Congress acted with the support of Senators of both parties, including Senator McClellan and Senator Hruska, who I am pleased, is here today. Congress recognized that the personality of a judge mattered in a criminal case. Both bar and bench, after all, advocated the random selection of judges in crimi- nal cases. Studies indicated that a defendant sentenced by a Southern judge was likely to serve six months more than the average, while a defendant sentenced in Central California was likely to serve twelve months less. Female bank robbers would likely serve six months less than men, and black bank robbery defendants con- victed in the South were likely to be imprisoned an additional thirteen months. In a well-known 1974 Second Circuit experiment, fifty district court judges each sentenced twenty offend- ers on the basis of the same set of pre-sentence reports. And the results diverged dramatically. Where one judge sentenced a defendant to three years, another judge chose twenty years; where one imposed a suspended sentence for an immigration crime, another imposed a three-year prison term. The Department of Justice, later repeating the experiment with 2o8 federal judges, found them unanimous about whether to impose a prison term in only three of 16 hypothetical cases. It also found serious disparity as to length. For example, while the judges sentencing one particular hypothetical fraud FEDERAL SENTENCING REPORTER • VOL. 11, NO. 4 - JANUARY/FEBRUARY 1999 defendant imposed a 1i.-year prison term on average, one judge gave that same defendant 15 years. To reduce this kind of unfair disparity, Congress created a sentencing system that was to categorize offenders through the use of offense and offender characteristics, attaching to each combined offense- offender category a Guideline sentencing range. If prison time was at issue, the top of the sentencing range could exceed the bottom by no more than 25%. The statute required a sentencing judge to impose the category's sentence in any typical case. But it permitted the judge to depart in any unusual case as long as the judge explained in writing why the case was unusual, thus preserving an important component of the district courts' traditional sentencing discretion, as the Supreme Court recently recognized in Koon v. United States.I At the same time, the statute did authorize appellate review of sentences, thereby hoping to create a common law of sentencing. The statute set forth a general outline of this system. It also created the seven- member United States Sentencing Commission to fill in the details. Congress's second objective was greater honesty in sentencing. Under previous law the Parole Commis- sion determined (within broad limits) how much time an offender would actually serve. A judge might sen- tence an offender to twelve years, but the Parole Com- mission might release the offender after four. No one - not offender, judge, or public - could say in advance what a twelve-year sentence really meant. And the consequence was gamesmanship and cynicism. Congress's solution was to abolish parole. With minor exceptions, the time the judge imposed would now be the time the offender would serve. Sentence lengths, of course, were to be adjusted to accommodate this change in parole practice. The result is a sentencing system that is transparent, more candid, than before. Both Congress and the Commission understood that the statutory objectives were greater fairness and greater honesty, not perfect fairness or perfect trans- parency. Congress and the Commission hoped to set in motion a system that, through trial and error, could gradually work toward these important goals. II. Difficulties The Guidelines focus upon federal sentencing, a small part of the Nation's criminal justice system. In 1994, for example, the federal district courts imposed about 40,ooo Guidelines sentences, while state court judges in just one state, Pennsylvania, imposed more than

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