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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

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
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


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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