Simplification Draft Paper

DRAFT

Disclaimer: This document was developed by staff for discussion purposes only and does not represent the views of any commissioner. It should not be interpreted as legislative history to any subsequent Commission action. The discussion draft is provided to facilitate public comment on improving and simplifying the sentencing guidelines.

I. Introduction

Criminal history composes the horizontal axis of the sentencing guideline grid and, in conjunction with the offense level, determines the guideline range. This paper discusses Chapter Four (Criminal History and Criminal Livelihood).

There are both philosophical and practical reasons for including criminal history as a major component of the federal sentencing guidelines. Criminal history can serve several important functions in setting sentencing recommendations. It can be used to measure increased culpability, predict future criminality, and selectively target dangerous offenders.

Through the hotlines, case review projects, training, and case law, the Commission has learned of a wide range of issues within Chapter Four that contribute to the complexity of the guidelines. In fact, questions regarding criminal history are one of the most frequent hotline topics. Additionally, the Commission's fiscal year 1994 appeals database indicates that criminal history issues account for the largest number of appeals in the federal system. These appeals generally have a low affirmance rate (73%) compared to other areas of the guidelines.See Table 1. The next lowest affirmation rate (56.8%) is for departures under Chapter 5.

But at a more fundamental level, critics of Chapter Four question the basic premise behind the Commission's criminal history score. Unlike many state guideline systems, the federal guidelines base the assignment of criminal history points on sentence length rather than on the past offense. This, according to some critics, builds in past discriminatory practices. For example, some offense types formerly received quite low sentences in contrast to the violence of the act (e.g., domestic violence) and some offenders may have received higher sentences based on their race or ethnicity while others received lower sentences based on gender. In addition, sentence length among states is not uniformly defined, thus sentence length is not always the best measure of severity.

And, finally, some question whether sanctions for criminal history should be so severe as to overshadow sanctions for the instant offense. Certainly, many agree that some offenders violate the law so frequently or in such serious ways that past criminal behavior should "drive" the punishment (e.g., "three strikes and you're out"). Others argue that the offender has paid his/her price for past criminal conduct and current sanctioning should be for current crimes.

This review provides a foundation from which two fundamental questions emerge:

What is the purpose of criminal history in the federal sentencing guidelines?

Does the current method of measuring criminal history adequately serve this purpose?

The group first briefly reviewed the various arguments as to propriety and purpose of using criminal history to help determine the sentence. Second, the group evaluated the principles on which the criminal history score is based. Third, we reviewed operation of the federal criminal history score and compared it to various state guideline systems. And, finally, we offer several options for refinement.

II. Philosophy of Criminal History

There have been various debates as to propriety and purpose of using criminal history to determine a defendant's sentence. Retributionists or those who believe in the "just deserts" philosophy argue that punishment should be proportionate to the defendant's culpability for his/her current offense of conviction. Those who argue that retribution is a key principle in sentencing argue for a significantly reduced role for criminal history. For example, Richard Singer (1978) argues that criminal history is inappropriate to consider at sentencing because the defendant has already been punished for the previous offense. He contends that a defendant has no greater culpability (blameworthiness) because of having committed the prior offense; nor is victimization greater in the current offense as a result of the prior offense.

Andrew Von Hirsch, a noted retributionist, argues that criminal history should play only a minor role at sentencing, impacting sentence only to the extent that the defendant's culpability is enhanced due to his/her prior offenses. Von Hirsch argues that offenders who are being sentenced for their first offense have less culpability due to their not having been punished previously. According to Von Hirsch, the first sentence communicates that the behavior is wrong and will not be tolerated. A sentence for a second violation can reflect the "full" weight of the law because the offender has been alerted previously to the unacceptability of the behavior.Currently, no guideline system completely disregards the defendant's prior record in the determination of sentence. However, some states do consider aspects of retributionist theory. Minnesota, for example, used this theory in a modified format by adjusting the slope of its imprisonment/non-imprisonment line to focus more on the current offense.

A contrary theory of the role of criminal justice is incapacitation. This approach advocates the expanded use of imprisonment to incapacitate offenders. Incapacitation takes two forms: collective and selective. Both forms assume that while offenders are incarcerated they will not be able to engage in additional criminal behavior. Collective incapacitation seeks to prevent crime by increasing the rate and duration of imprisonment for a broad range of offenders, without specific prediction of future criminality. In contrast, selective incapacitation seeks to prevent crime by using certain criteria to identify for restraint a smaller number of offenders who are predicted to commit more crime and/or serious crime. Selective incapacitation also can reduce punishment for persons who are predicted to be less likely to commit additional crimes or to commit serious crimes.

Society and its elected representatives have reached a level of frustration with crime so that current policies more frequently tend to reflect the selective incapacitation philosophy in sentencing practices in general and criminal history in particular. Advocates of selective incapacitation argue that some offenders have shown themselves to be too dangerous (given the frequency or severity of their criminal conduct) to be permitted to remain in society. These advocates have successfully swayed Congress and state legislators that, for the safety of society, presence of an extensive or violent prior record warrants severe sanction for the current offense (e.g., habitual offender provisions in the states and career offender provision in the federal system).States vary in their use of selective incapacitation. For example, in the Pennsylvania guidelines, all prior convictions are included in the computation of the criminal history score, although some offenses are weighed more heavily than others. Because the focus is on the number of prior offenses, little distinction is made between types of offender. In contrast, Oregon uses a typography classification of offenders that focuses not on the number of prior convictions, but, instead, the type of prior offenses committed with violent offenders and repeat non-violent felony offenders targeted for longer sentences. Each prior conviction does not necessarily contribute to the criminal history score. Consequently, in many criminal justice systems, criminal history is seen as a crucial component of the determination of an offender's sentence because of its use as a predictor of future criminality.See U.S. Sentencing Commission, Selective Incapacitation (1994).

III. Current Guideline Operation

The Commission determined that criminal history was a major factor in past sentencing

practices and should be a major component in the sentencing guidelines. In addition, the Commission believed that with its congressional mandate to consider the breadth of sentencing purposes (rehabilitation, deterrence, incapacitation, and just punishment), it had to consider criminal history as a major component of the guideline sentence.See 28 U.S.C. 991(A) and 18 U.S.C. 553(a)(2).

In designing Chapter Four, the Commission considered various philosophical arguments regarding the appropriate use of prior record in determining a defendant's sentence, including arguments regarding "just deserts" and selective incapacitation. The Commission hoped to diminish the conflict between the two ideologies by incorporating elements from both in assessing criminal history.

A defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of a greater punishment. General deterrence of criminal conduct dictates that a clear message be sent to society that repeated criminal behavior will aggravate the need for punishment with each recurrence. To protect the public from further crimes of the particular defendant, the likelihood or recidivism and future criminal behavior must be considered. Repeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation.USSG, Ch. 4, Pt. A, intro. comment.

In the end, Chapter Four was designed to address the frequency, seriousness, and recency of the defendant's prior record. The Commission believed these items were reliable predictors of future criminal conduct.The claims of predictive powers were based on the fact that the factors initially utilized by the guidelines were very similar to those included in two predictive devices, namely the established Salient Factor Score of the U.S. Parole Commission, and the Inslaw Scale. See U.S. Sentencing Commission, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements 43 (1987).

Chapter Four is comprised of seven sections that capture those aspects of past criminal convictions the Commission deemed should impact federal sentences. Sections 4A1.1 and 4A1.2

contain the instructions and definitions for the scoring of the criminal history category. Policy statement 4A1.3 addresses departures from the criminal history category.

Sections 4B1.1, 4B1.2, 4B1.3 and 4B1.4 deal with career offenders, criminal livelihood, and armed career criminals, and are the Chapter Four "overrides" or sentencing enhancements for more serious offenders.Sections 4B1.1, 4B1.2, and 4B1.3 are derived from statutory directives from Congress. Section 4B1.4, although not a statutory directive, implements the sentencing enhancement for armed career criminals at 18 U.S. C. 924(e). These sentencing enhancements may affect both the offense level previously determined under Chapters Two and Three and/or the Criminal History Category determined at 4A1.1 and 4A1.2. Section 4B1.3 applies to cases in which the defendant committed an offense as part of a pattern of criminal conduct from which he/she derived a substantial portion of his/her income. This section also acts as an override to the offense level previously determined at Chapters Two and Three; however, it has no impact on the criminal history score.

As mentioned previously, the federal sentencing guidelines are unique in their approach to criminal history. It is the only system that measures the severity of the prior offense by the length of the sentence imposed for the previous conviction. Specifically, the guidelines give three points for each sentence greater than one year and one month, two points for each sentence of 60 days but not more than one year and one month, and one point for any other sentence. Up to three points also can be assigned if the defendant was under a criminal justice sentence at the time the instant offense was committed, and he/she had been released from a sentence of imprisonment within two years of the commencement of the instant offense.Per 4A1.1(d), two points are added if the defendant committed any part of the instant offense while under any criminal justice sentence. Per 4A1.1(e),two points are added if the defendant committed any part of the instant offense less than two years following release from confinement on a sentence counted under 4A1.1(a) or (b). However, if two points are added under 4A1.1(d), only one point is added under 4A1.1(e). This criminal history score is translated into one of six criminal history categories in the Sentencing Table (Chapter Five, Part A). The higher the category, the higher the guideline sentence for any given offense level.

In the federal guidelines, the rate at which sentences increase from Category I to Category II, or from Category II to Category III, is equivalent to a one-level increase in offense level. A shift from Category III to Category IV, Category IV to Category V, or Category V to Category VI represents a more complex change in the offense level, because these categories have broader ranges of criminal history points included in each category. More importantly, the Commission designed the criminal history categories in this manner so that the relative increase is greater for offenses of less seriousness. The Commission believed that the crime-preventive benefits of imprisonment decline with age, thus "adding any given number of years to a 5-year sentence, for example, is likely to be more effective in decreasing the overall level of crime than adding the same number of years to a 20-year sentence."See U. S. Sentencing Commission, Supplementary Report on the Initial Sentencing Guidelines 44 (1987).

IV. State Systems

While there is some variation in approach, almost every sentencing guideline system considers a defendant's prior record in the determination of the sentence. Most states measure both the number and seriousness of prior convictions. Some states weight prior convictions depending on their severity. Minnesota, for example, assigns prior felony offenses from one-half to two points depending upon the offense's "severity level." Other systems use prior record categories that rely less on numerical scores or calculations and instead differentiate among types of offenders, such as those with violent prior convictions, those with multiple felony convictions, and so forth. The major advantage of differentiating by offender type is that the prior record categories are more uniform, providing each category with more similar offenders.

Although the state systems vary by how they weight prior record, they all assess points based on prior offense type ranked by severity. For example, in the Pennsylvania Sentencing Guidelines, the most serious category of prior convictions includes murder, voluntary manslaughter, kidnapping, rape, involuntary deviate intercourse, arson, and robbery. Convictions for these offenses receive four points, the maximum amount assessable for a prior conviction. Similarly, in Oregon, criminal history is categorized by prior offense type specifically violent versus non-violent offenses.

V. Comparing Federal and State Criminal History Measure

As suggested earlier, issues regarding fairness and complexity have arisen from the Commission's decision to base its criminal history assessment on the length of prior

sentences imposed. First, critics argue that by assessing points based on the length of the sentence imposed, the guidelines incorporate into the current sentence past disparities from state and federal courts. By using sentence length, the guidelines make defendants accountable for the previous sentence imposed, not necessarily the prior offense for which they were convicted. One of the goals of the Sentencing Reform Act was to limit unwarranted disparity by ensuring that similar defendants with similar backgrounds who commit similar crimes receive similar sentences. This goal resulted from the knowledge that in both the preguideline federal system and many state systems, sentences imposed did not necessarily reflect this principle. Nonetheless, the current federal system hinges on sentences imposed by the very type of sentencing structures the Sentencing Reform Act intended to eliminate.

A second criticism of the federal guidelines' present scheme is its lack of precision in measuring the severity of prior record. For example, because three points are given for each sentence of more than one year and one month, the guidelines make no distinction between a

14-month sentence and a 15-year sentence. Arguably, these two sentences may reflect the seriousness of substantially different prior offenses. Under the current system, there is no differentiation between a fraud and a rape if they both receive sentences of imprisonment of more than one year and one month.The Preliminary Draft of the federal guidelines published in September 1986 made different distinctions between prior sentences. Specifically, the categories for assignment of points were: 60 days to three years, three to five years, and five or more years. See U.S. Sentencing Commission, Sentencing Guidelines Preliminary Draft 127-129 (1986).

Another area in which the current criminal history score treats seemingly different offenders the same is in Criminal History Category I. Commission data indicate that federal defendants typically have little or no prior criminal records/convictions. Almost half of the population sentenced in 1994 had no criminal history countable under the guidelines. Approximately 10 percent of all defendants received only a single criminal history point under the Chapter Four guidelines. As a result, more than half of all defendants sentenced in 1994 were in Criminal History Category I.See Table 2.

Currently, Criminal History Category I treats a wide range of defendants similarly despite the fact that they have dissimilar levels of previous contact with the criminal justice system. For example, defendants who have no prior record (no prior arrests, no pending charges, no dismissed charges, no prior convictions) are in Category I along with defendants who have at least one prior conviction that received a sentence of imprisonment of at least

1Of the 39,971 cases, the Commission received complete guideline application information for 34,642. Additional descriptions of each guideline adjustment can be found in USSG Chapter Four.

SOURCE: U.S. Sentencing Commission, 1994 Datafile, MONFY94.

60 days.This category includes the following defendants: (1) a person with no contact with any criminal justice system of any kind, (2) a person who may have had contact with the criminal justice system, such as arrests or dismissed charges and, (3) a person with convictions not countable under the guidelines for a variety of reasons, such as the "age" of the conviction, the locality where the conviction occurred, and the minor nature of the offense. Title 28, section 994(j) requires the Commission to "insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense. . . " By not incorporating a "first offender category" in the guidelines, critics argue that the Commission did not adequately address the statutory directive at Title 28, section 994(j) related to first offenders.In 1991, a criminal history working group investigated this issue (as well as the possible addition of a seventh criminal history category). The group recommended several amendment options designed to address this issue; however, the Commission took no action on this issue at that time. However, the Commission's compliance with this directive has been challenged in a number of cases and uniformly rejected.See, eg., United States v. Lueddeke, 908 F.2d 230, 232-33 (7th Cir. 1990); United States v. Ortez, 902 F.2d 61,66 (D.C. Cir. 1990); United States v. White, 869 F.2d 822, 827 (5th Cir.), cert. denied, 490 U.S. 112 (1989).

A third criticism of the federal system is that it does not account for the difference in state penal systems. The current federal system is a non-parole, determinate sentencing system with guidelines for imprisonment. Many states have indeterminate sentencing systems with parole, even some of those with guideline systems. Therefore, there is little likelihood of uniformity when points are assessed based on length of prior sentences imposed in different systems. For example, a determinate sentence of three years in a non-parole system is not the same as a determinate sentence of three years in a parole system. In the first system, the defendant will serve the majority of the three-year sentence. In the second system, the defendant may serve only a small portion of the three-year term. However, under Chapter Four, the Commission fails to differentiate between the two - both are treated as three-point sentences although the defendants may serve two very different terms of imprisonment.The Preliminary Draft assessed points for prior offenses based on the time-served with the presumption that time-served would be equivalent to one-third of the sentence imposed. See U.S. Sentencing Commission, Sentencing Guidelines Preliminary Draft 127 (1986).

The Commission decided to adopt its current criminal history methodology after balancing numerous considerations. The Commission believed using an offense-based system (similar to the states) for assessing prior record might incorporate prosecutorial disparity that results from varying charging and plea practices. The Commission reasoned that basing the criminal history score on the prior sentence length reflects a judicial assessment of seriousness and scope of the underlying criminal conduct. This design was considered superior, despite the potential incorporation of prior judicial disparity.

There were additional practical considerations. First, a methodology similar to the offense-based criminal history systems used by the states might prove more difficult to implement in the federal system. By basing the criminal history score on prior sentence length the Commission intended to minimize problems associated with cross-jurisdictional differences: defendants in the federal system have priors that result from prosecutions in the federal system, 50 state systems and the District of Columbia and territories. Although states often must deal with cross-jurisdictional differences they do not occur frequently.

Second, the states and federal systems define misdemeanors and felonies differently.

In the federal system, offenses that authorize sentences of imprisonment up to one year are misdemeanors, while those one year and above are felonies. Some states categorize offenses that authorize sentences of imprisonment up to five years as misdemeanors. Therefore a system that uses only misdemeanor and felony distinctions to assess criminal history score could be inequitable and present practical problems. However, equal problems arise from using the federal misdemeanor and felony definitions to describe state offenses.

Likewise, a system that examines the underlying conduct of the prior offense raises practical problems as well as legal concerns. The probation officer has the added burden of obtaining police reports (frequently unavailable if offenses occurred more than five or 10 years ago) which detail the real offense conduct. Second, there may be constitutional issues with assessing criminal history points based on the real offense behavior of the prior offense, particularly where the plea was to a less serious offense.

Despite the concerns about an offense-based system, the Commission chose to use some elements of this type of system in Chapter Four. Both the Career Offender and Armed Career Criminal guidelines use the type of offense of conviction to determine applicability of predicate offenses. Therefore, the current federal system is somewhat of a "hybrid" system which uses both sentence length and offense type to determine a criminal history score.

The offense-type was used in a limited fashion in Chapter Four because the Commission argued that assessing criminal history points based on the prior sentence length provided a more practical method because of its "field scoring reliability." If probation officers could not score actual cases accurately and consistently, both the predictive power and equity of the criminal history score would suffer. The Commission believed that field scoring reliability of an offense-based system would be affected by the complexity and difficulty in obtaining verified information. This factor was critical in the adoption of the final version of Chapter Four; perhaps, the key reason why the Commission's method of assessing criminal history points varies so greatly from state guideline systems. Ironically, it also may have contributed to the complexity that now exists in Chapter Four.

VI. Complexity In Current Guideline

A primary contributor of complexity in Chapter Four is the method by which the severity

of prior convictions is assessed. Because sentence type and length are crucial to assessing criminal history points, the application notes and commentary must address the myriad of possible state court dispositions. This adds considerably to complexity because the guidelines must include a number of terms, definitions, and formulas not otherwise necessary. The court must make a number of decisions about each prior sentence, including the custodial component, sentence type, and length, in order to arrive at the appropriate criminal history category.

These determinations become problematic and burdensome to the court in several areas. First, the guidelines define a sentence of imprisonment as a "sentence of incarceration." In many instances, this requires the court to make a finding regarding the custodial portion of a prior sentence. This occurs frequently with prior convictions from states that use sentencing alternatives whose custodial component is not the traditional form of incapacitation. These alternatives include "boot camps," work furloughs, and community correctional facilities. A federal judge confronted with assigning points to any of these prior sentences of imprisonment first must determine whether or not the custodial component is more similar to incarceration in a jail-type setting or residence in a half-way house. This distinction could make a difference in the number of points assigned. State systems do not require this distinction because severity is determined by the type of prior offense of conviction, not sentence length.

As prisons become more and more crowded, states become much more creative in their sentencing practices. "Shock" incarcerations and other forms of alternative sentences have become more popular, as much from fiscal necessity as policy goals. However, states vary in the way in which these sentences are implemented. This difference can affect how criminal history points are assigned, and, in turn, create disparity.

For example, consider two defendants both sentenced to two years imprisonment, but in different jurisdictions. After six months has been served, one defendant has the sentence "modified," by the court and is released on 18 months probation. The second defendant, also serves six months imprisonment, and is then "paroled" by the court to serve the remaining 18 months. The first defendant receives two criminal history points, while the second receives three points. The critical difference being the pronouncement of the sentence.

Although these sentences are very similar, the method in which they are carried out is different, and consequently the two similar defendants are treated differently under the federal guidelines. Not only does this contribute to disparity in the current federal sentence, but the court has the added burden of determining if and how the sentence was modified before correct assessment of the points can be made. In many cases, point assessment turns too finely on the wording used by the court in imposing sentence on the prior offense.

One other area of complexity that results from the federal guidelines' method of assigning criminal history points involves cases in which the previous sentence imposed involved a revocation of probation or parole. Under the guidelines, rather than counting the original sentence and the resentencing after revocation as separate sentences, the sentence given upon revocation is added to the original sentence of imprisonment and the combined sanction is counted as one sentence. In addition to the burden of matching revocation sentences with original offenses, the revocation sentence may affect the calculations already determined because the time period under which offenses are "countable" has been expanded. This area alone has created a substantial degree of complexity in Chapter Four.

The Commission has added additional commentary and application notes during the past

eight years that expand or clarify the guidelines, attempting to ensure consistent application to the innumerable sentencing dispositions from the state systems. However, the guidelines cannot address every variation of sentence imposed. Consequently, the guidelines and commentary has become more complex and yet there remains a host of issues not addressed. This negatively impacts on the field scoring reliability of Chapter Four. If the chapter is not applied accurately or consistently because of complexity issues, its predictive power and ability to eliminate unwarranted disparity is reduced greatly.

VI. Options for Refinement

The preceding discussion focused on a broad review of the federal guidelines' methodology for developing a criminal history score. A number of other narrower issues (see Appendix A) are pertinent to the discussion of Chapter Four simplification; however, these issues can be addressed whether or not the Commission chooses to change the current system. It may be more beneficial for the Commission to address first several broad threshold issues before narrowing its focus. First, what is the purpose of criminal history in the federal sentencing guidelines? Second, does the current method of measuring criminal history adequately serve this purpose?

If the Commission chooses to retain or modify its current approach, the following options are available:

1. Leave current method of assessing criminal history points intact. Change format and organization of Chapter Four to make it more "user-friendly. " For example, all instructions would be contained in one section with an accompanying list that outlines exceptions to every instruction.

2. Leave current method of assessing criminal history points intact. Clarify ambiguous instructions and unclear definitions (e.g., definitions under armed career criminal and career offender). Simplify operation (e.g., consolidate time-frames, consolidate status and recency subsections).

3 . Leave current method of assessing criminal history points intact. Make more distinction between longer prior sentences (e.g., add four points for every prior sentence for a crime of violence of more than one year and one month, or four points for every prior sentence of over 10 years or change current criteria for three point sentences from one year and one month to three or five years).

If the Commission chooses to change the current approach, the following options are available:

4. Change the current method of assessing criminal history points from the length of sentence imposed to an offense-based system. This system could be accomplished in a variety of ways (e.g., categorizing offenses on the basis of misdemeanor vs. felony, non-violent vs. violent, or by using an offense severity scale).

5. Change the current method to a prior offense of conviction typography system in which each criminal history category would represent a different type of prior record (e.g., the most serious category would be reserved for defendants with three or more prior violent felonies, the next category would be two prior violent felonies, the next category would be one violent felony, the next category would be three or more non-violent felonies, etc.).

Other Issues Contributing to Complexity

Several other areas within Chapter Four need review for possible revision. These areas are not necessarily tied to the issue of assessing points based on the length of the sentence imposed. Because these areas can be addressed whether or not the Commission decides to change substantially the operation of Chapter Four, they are mentioned briefly below. If the Commission chooses to address these issues in the future, a more detailed description of the issues can be formulated at that time.

Format of Chapter Four

Another significant cause of complexity, and perhaps the easiest to correct, is the way in which Chapter Four is organized and arranged. Section 4A1.1, which contains the rules for assigning criminal history points, is only one page. However, in order to assign criminal history points, the practitioner must read an additional nine and one-half pages of guidelines, application notes, and commentary that contain the bulk of instructions and definitions needed to apply 4A1.1 accurately. The definitions and instructions for application contained in 4A1.2 include 16 subsections spanning four pages. These subsections are followed by three pages of more detail contained in the 13 application notes.

The structure of Chapter Four alone is confusing because it requires looking several different places to compute accurately the criminal history points for a prior sentence. For example, a prior sentence of three years imposed 20 years ago requires the following steps. First, it appears that 4A1.1(a) requires assignment of three points to the prior sentence because the sentence imposed exceeded one year and one month. However, Application Note 1 in the commentary to 4A1.1 contains some limitations on the application of this guideline, including the applicable time period in which convictions can be counted. According to this application note, this conviction would not be counted, unless the sentence was imposed within 15 years of the commencement of the instant offense or the term of imprisonment on the sentence extended into the 15-year time period. This requires a determination of the date of release from imprisonment to determine whether or not the sentence is counted. However, before a final determination can be made, Application Note 1 to 4A1.1 references eight additional places in 4A1.2 for further definitions and instructions that impact application: 4A1.2 for the definition of "prior sentence"; 4A1.2(b) for the definition of "sentence of imprisonment"; 4A1.2(e) for the applicable time periods; 4A1.1 2(d) if the offense was committed prior to the defendant's eighteenth birthday; 4A1.2(h), (j) and the Commentary to 4A1.2 for offenses involving expunged, foreign, or invalid convictions; and finally 4A1.2(k) for prior sentences that involve revocations of probation and parole. Note that these are only the sections referenced at Application Note 1 to 4A1.1 1. There are many other sections that could be applicable. Ultimately, correct application requires review of all ten pages of 4A1.1 and 4A1.2. This is but one of many examples of how the structure of the Chapter Four sections and commentary add to the complexity of the sentencing guidelines, and could be reduced by reorganizing and restructuring the chapter.

Applicable Time Periods for Prior Offenses

There is general agreement among sentencing theorists that the importance of a previous conviction diminishes over time. In keeping with this theory, the Commission chose to limit the impact of "decaying" prior convictions by requiring that they fall within various time periods. It is not the limitation of old prior convictions that adds complexity. The complexity results because the guidelines have five different applicable time periods for the assessment of criminal history points. These time periods depend upon both the length of the sentence imposed and the age of the defendant when the prior offense was committed, and in one instance, whether the prior was imposed as an adult or juvenile sentence.

State guideline systems vary in their use of applicable time periods. States that limit consideration of offenses generally use one applicable time period for all offenses. The District of Columbia is the only system similar to the federal system in that it has several different time periods. In the District's system, the applicable time period depends upon whether the prior offense was a felony, misdemeanor, or juvenile adjudication. Some states that do not restrict the time period in which prior offenses can be counted instead, have "crime-free" periods from which the defendant benefits. In these states, if the defendant remains "conviction free" for a period of time (usually 10 or 15 years not including periods of imprisonment or release on probation or parole) prior to the instant offense, any convictions prior to that period are not counted. Others leave this item as a departure consideration.

Juvenile Adjudications

One of the frequently debated issues regarding the prior record measurement is whether to include juvenile adjudications, and if so, to what extent. Currently, the federal guidelines consider offenses that occurred prior to the defendant's eighteenth birthday, except under certain circumstances. Offenses committed prior to the defendant's eighteenth birthday cannot receive more than two points unless the defendant was convicted as an adult. Two points can be assessed if the period of incarceration extended into the five-year period prior to the commencement of the instant offense. One point can be assessed if sentence was imposed within the five-year period prior to the commencement of the instant offense.

Some would argue that juvenile adjudications should not contribute to the criminal history score because juvenile courts typically focus on the juvenile's welfare and treatment, and generally, have a more informal process. Moreover, the juvenile courts' standard of proof may be somewhat lower than adult courts. More importantly, juvenile records are less reliable than adult records because of different jurisdictional policies on recording and disclosing juvenile offenses. This inconsistency can result in great disparity in the criminal history score computation.

Nonetheless, most states include juvenile adjudications in the computation of criminal history score because many argue that juvenile record, in particular violent behavior, is a strong predictor of future criminal conduct. In fact, some restrict the use of juvenile offenses to include only convictions for violent offenses. Others restrict the use of juvenile offenses if the defendant is an older offender. For example, in Maryland, juvenile convictions are not included in the sentence determination if the defendant is 26 years of age or older at the time of commission of the instant offense; the argument being that as the offender gets older, the use of a juvenile record as predictor of criminality diminishes.

Related Cases

This is one of the most frequently occurring areas of confusion in Chapter Four.

Currently, the guidelines consider prior sentences as related if they ". . .(1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing . . . " (4A1.2, Application Note 3). However, if the prior offenses were separated by intervening arrests, they are not considered related. As a result of this rule, related cases receive only one set of criminal history points regardless of the number of offenses for which sentence was imposed."There is an exception where one or more of the related cases is a crime of violence. Section 4A1.1(f) allows a one-point increase (and up to a total of three points) for each prior crime of violence that did not receive any points under (a), (b), or (c) because it was considered related to another sentence for a crime of violence. Both the definition and theory of this rule are suspect. Thus this rule is probably one of the most confusing in Chapter Four. Nonetheless, almost all state guideline systems have some means of addressing this issue. In most cases, only the most serious of the offenses is used to determine the criminal history score. The solution to this problem in the federal guidelines is somewhat dependent upon whether the Commission changes the way in which criminal history points are assessed.

4B1.1, 4B1.2 (Career Offender), and 4B1. 4 (Armed Career Criminal) Guidelines

Sections 4B1.1, 4B1.2, and 4B1.4 are the Chapter Four overrides which are sentencing

enhancements for more serious offenders. Sections 4B1. 1 and 4B1.2 (Career Offender) implement a statutory mandate at 28 U.S. C. 994(h) to assure that certain "career" offenders, as defined in the statute, receive a sentence of imprisonment "at or near the maximum term authorized." Section 4B1.1 (Armed Career Criminal) implements 18 U.S.C. 924(e), which requires a minimum sentence of 15 years for a defendant who violates 18 U.S.C. 922(g) and has three previous convictions for a "violent felony" or a "serious drug offense." These sentencing enhancements may affect both the offense level previously determined under Chapters Two and Three, and the Criminal History Category determined at 4A1.1 and 4A1.2.

The primary issue regarding these sections is that the terms, definitions, and criteria for application within these guidelines are often confused and misapplied. Both sections use similar terminology but have slightly different definitions. Frequently, the fine distinction between the terms used in these guidelines is missed and the terms are used interchangeably, resulting in misapplication of the guidelines. For example, under the career offender guideline, application requires previous convictions for either a "crime of violence" or a "controlled substance offense." Under the armed career criminal guideline, application requires previous convictions for either a "violent felony" or a "controlled substance offense." Although these terms appear similar, they each have different definitions. Therefore, a previous conviction for a "crime of violence" at 4B1.1 might not qualify as a "violent felony" under 4B1.4.

The criteria for application in each guideline also is confusing. The career offender guideline requires two predicate offenses, while the armed career criminal guideline requires three. Additionally, the applicable time periods for counting predicate offenses are different.

The confusion between these two sections is derived largely from the statutes from which they were implemented. The terminology and application criteria are not uniform within the statutes. It may be impossible to resolve these issues without significant policy concerns.

Finally, within the career offender guideline, there remains confusion regarding the definition of a "crime of violence." This term has been litigated frequently and remains a troublesome concept. Because most states deal with this issue through statutory enhancements, comparison with the federal guidelines is difficult. Pennsylvania has a somewhat similar enhancement for repeat violent offenders. Wisconsin deals with this issue through departure.

Other Areas of Criticism

The following issues, although not significant complexity concerns, need review in conjunction with the areas previously discussed. Although not inclusive, the following represents two of the more significant issues.

4B1.3 (Criminal Livelihood)

This section implements 28 U.S. C. 994(i)(2), which directs the Commission to ensure that the guidelines specify a "substantial term of imprisonment" for a defendant who committed an offense as part of a pattern of criminal conduct from which he/she derived a substantial portion of his/her income. This section acts as an override to the offense level previously determined at Chapters Two and Three. If the criminal livelihood guideline applies, the guideline instructs that the Chapter Two offense level be increased to offense level 13 (11 with acceptance of responsibility).

Two issues confront this guideline. First, it is rarely if ever used. In fiscal year 1994, of the 38,665 cases sentenced the criminal livelihood guideline was applied only 40 times.Monitoring database for fiscal year 1994. This may be because the floor of 13 is so low that it is seldom higher than the Chapter Two offense level previously determined. Perhaps more importantly, the second issue concerns whether or not the Commission has implemented appropriately the congressional directive. The statute requires the Commission to ensure that the guideline specify a substantial term of imprisonment. However, a defendant in Criminal History Category I, sentenced under the criminal livelihood guideline could receive a sentence of imprisonment as low as eight months.

Departures

Section 4A1.3 (Adequacy of Criminal History Category) authorizes the consideration of departure from the guidelines when the criminal history score does not reflect adequately the seriousness of the defendant's criminal history or the likelihood of recidivism. Several issues arise regarding this section. The first issue concerns the placement of the section within Chapter Four. There has been much confusion and some litigation regarding the appropriateness of departing under this provision for sections in Chapter Four that follow it; specifically, 4A1.3 precedes the career offender and armed career criminal guidelines. Therefore, there has been some question regarding the ability to depart under 4A1.3 when the court finds that these overrides do not reflect adequately the seriousness of the defendant's criminal history. This problem could be solved by moving 4A1.3 to the end of the chapter or to Chapter Five, Part K where other departures are addressed.

In addition, critics argue that this section authorizes the reevaluation of sentences previously excluded under Chapter Four. For example, although prior offenses not resulting in a conviction are not used to compute the criminal history category, they may be grounds for an upward departure under 4A1.3. Furthermore, critics take exception to the court's ability to depart for cases in which the defendant received an extremely lenient sentence for what the guidelines consider a serious offense. They argue that this ability grants permission for the entencing judge to examine the appropriateness of prior sentences.

United States Sentencing Commission