Simplification Draft Paper

Simplification Draft Paper


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.

The Sentencing Reform Act of 1984: Principal Features

Affecting Guideline Construction


The 1984 Sentencing Reform Act (SRA) and the sentencing guidelines it spawned represent perhaps the most dramatic change in sentencing law and practice in our Nation's history. This paper examines that legislation in terms of the general and specific constraints imposed on the Sentencing Commission's construction of sentencing guidelines. Subsequently enacted legislation that has impacted Commission decisions in shaping the guidelines also will be discussed briefly. The purpose of this analysis is to give commissioners, as they contemplate revisiting some of the policy and drafting decisions underpinning the initial guidelines, a greater understanding of the extent to which those decisions were mandated or influenced by Congress's vision and policy choices. Working with this statutory framework, the initial Commission itself subsequently made additional policy decisions, some of major significance (e.g., the decisions regarding the balance between an offense of conviction and real offense sentencing system, discussed in the Relevant Conduct paper).

Background and Purposes of the SRA

At the outset, at least three observations about the SRA appear pertinent. First, the Act was well considered over a period of years, with its final passage in 1984 culminating a decade of hearings, committee mark-ups, and floor consideration. Second, it enjoyed strong bipartisan support, especially in the Senate where its final passage was endorsed by all but Senator Mathias. Third--and cutting somewhat in the other direction--the enacted version represents a unicameral blueprint shaped almost entirely by the Senate. The Senate-passed bill subsequently was passed by the House without amendment, and over the opposition of the House Judiciary Committee leadership, as a rider on a continuing appropriations bill. 1See generally, U.S. Sentencing Comm'n, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements 1-8 (1987); William W. Wilkins, Jr., Phyllis J. Newton, and John R. Steer, The Sentencing Reform Act of 1984: A Bold Approach to the Unwarranted Sentencing Disparity Problem, 2 Crim. L. Forum 355 (1991).

Among the principal purposes of the SRA were: (1) to establish comprehensive and coordinated statutory authority for sentencing (through the sentencing provisions currently found in chapters 227-235 of title 18, United States Code), (2) to address the seemingly intractable problem of unwarranted sentencing disparity and enhance crime control by creating an independent, expert sentencing commission to devise and update periodically a system of mandatory sentencing guidelines, and (3) principally through the sentencing commission, to create a means of assembling and distributing sentencing data, coordinating sentencing research and education, and generally advancing the state of knowledge about criminal behavior. 2See S. Rep. No. 225, 98th Cong., 1st Sess. 37-39, 65, 161-62 (1983).

The road to enactment of the SRA in the Fall of 1984 as title II of the omnibus Comprehensive Crime Control Act--itself being a substantive provision in a continuing appropriations resolution--was a relatively lengthy one. It began in 1975, with the introduction of a bill by Senator Edward M. Kennedy authorizing Judicial Conference appointment of a commission for the purpose of promulgating sentencing guidelines for court consideration. Senator Kennedy saw this as "the beginning of a concerted legislative effort to deal with sentencing disparity." Thereafter, in the next three Congresses, the guideline concept was refined as an integral part of an effort to comprehensively reform the federal criminal laws. Along the way, the sentencing reform legislation gained broad bipartisan support in the Senate. The House Judiciary Committee leadership remained less than enthusiastic about the worth of the legislation, however, particularly as the Senate bill was recast through successive iterations that progressively tightened intended guideline constraints on judicial discretion and decreased the relative influence of the Judiciary over the construction of the guidelines (while increasing the role of the Executive Branch).

Eventually in 1983, the Senate gave up on the stymied criminal code revision effort and, under Republican leadership, concentrated on a series of "crime control" initiatives (e.g., bail reform, forfeiture, and various criminal penalty enhancements). Sentencing reform became a part of that agenda as well, because concerns about unwarranted disparity included concerns about undue leniency and the "revolving door" federal criminal justice system. Thus, in the 98th Congress, the Senate overwhelmingly passed the sentencing reform legislation as part of the Comprehensive Crime Control Act. In the Fall of 1984, the full House concurred in the legislation, and President Reagan signed it into law. 3U.S. Sentencing Comm'n, Supplementary Report, supra note 1. See also Kate Stith and Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 Wake Forest L. Rev. 223 (1993).

Principal SRA Features Affecting Guideline Drafting

An examination of the SRA in terms of its principal constraints pertinent to the construction of the sentencing guidelines shows that Congress employed a combination of general goals, overarching specific constraints, and more narrowly applicable specific instructions to inform the Commission's guideline development tasks. Additionally, the SRA described in some detail the process Congress expected the Commission to follow in formulating the guidelines.

Guideline goals

The enabling statute spells out three overall policy goals that the Commission's sentencing policies and practices are designed to achieve: (1) fulfilling the purposes of sentencing listed in the statute; i.e., just punishment, deterrence, incapacitation, and rehabilitation; (2) providing certainty and fairness by avoiding unwarranted sentencing disparity among similar cases while ensuring individualized consideration of unique aggravating or mitigating factors, and (3) reflecting, insofar as practicable, "advancement in knowledge of human behavior as it relates to the criminal justice process." 28 U.S.C. 991(b)(1)(A)-(C). Importantly, Congress did not elect, as some legislative bodies have, to give precedence to any single purpose of sentencing. 4Note, however, that in the case of a sentence to imprisonment, the court is precluded from using rehabilitation as the basis for that choice of sanction and the decision on sentence length. 18 U.S.C. 3582(a). See also 28 U.S.C. 994(k). Rather, it was believed that "each of the four purposes of sentencing should be considered" and individual case circumstances would dictate the paramount consideration. 5S. Rep. No. 225, supra note 2, at 68, 77. Similarly, the guidelines as a whole are not founded upon any single or predominantly considered sentencing purpose. Rather, the Commission elected to generally use an empirical measurement of past sentencing practice as the starting point for guideline development, adjusting as appropriate to better achieve congressional goals expressed in the SRA or subsequent legislation (such as the 1986 Anti-Drug Abuse Act). 6See USSG Ch. 1, Pt. A, at 3-4 (1994).

Mandatory versus discretionary guidelines

The legislative history indicates that Congress carefully considered the matter of whether the guidelines should be advisory guideposts or binding rules. The decision clearly came down on the "mandatory" side, notably excepting the provision allowing departure from the guideline range for exceptional aggravating or mitigating factors. See 18 U.S.C. 3553(b). In arriving at this decision, the Senate Judiciary Committee surveyed all state guideline systems in effect or under consideration at that time. Based on its review and a National Academy of Sciences study, the Committee concluded that a mandatory approach was necessary in order to effectively address disparity concerns. 7Id. at 61-62, 78-79. The Committee thus rejected efforts by Senator Mathias to make the guidelines more advisory. 8Id. at 79.

Subsequent to the 1984 SRA, Congress revisited the statutory departure standard as part of the Sentencing Act of 1987. The latter legislation amended 18 U.S.C. 3553(b) to permit expressly departures based on circumstances of an exceptional "kind" or "degree." The insertion of this new language was described by the manager of the House bill, Representative John Conyers, as "clarifying" in nature because it simply made explicit in the law that which was previously described in the Senate Committee Report as implicit and intended. 9133 Cong. Rec. H10017 (daily ed. Nov. 16, 1987) (statement of Mr. Conyers). On behalf of the House Judiciary Committee, Mr. Conyers also put forth an analysis containing a legal argument that, in addition to the departure authority for exceptional aggravating or mitigating factors under section 3553(b), section 3553(a) also broadly authorized downward departures from the guidelines whenever a court concluded that the required minimum guideline sentence was greater than necessary to comply with the purposes of sentencing. This post-hoc interpretation of the 1984 Act's departure standard was vigorously disputed, however, by the principal Senate SRA sponsors, and has been rejected by appellate courts as an avenue of avoiding guideline requirements. 10133 Cong. Rec. S16646-48 (daily ed. Nov. 20, 1987) (statements of Senators Hatch, Biden, Thurmond, and Kennedy). The House Judiciary Committee view subsequently was considered and rejected by several appellate courts. See, e.g., United States v. Davern, 970 F.2d 1490 (6th Cir. 1992), cert. denied, 113 S. Ct. 1289 (1993); United States v. Johnston, 973 F.2d 611 (8th Cir. 1992), cert. denied, 113 S. Ct. 1019 (1993). See also United States v. Burns, 501 U.S. 129, 133 (1991) (only justification for departure is an aggravating or mitigating circumstance not adequately considered by the Commission).

Consequently, the currently operative statutory scheme can be fairly characterized as a system of mandatory guidelines. The principal statutory provisions that together achieve this result are the directive in 18 U.S.C. 3553(b) requiring a sentence within the guideline range absent basis for departure, the accompanying directive in subsection (c) requiring specific reasons for a departure sentence, and the appellate review scheme set forth in 18 U.S.C. 3742.

Overarching constraints

a. Statutory Penalties. Congress set forth two overarching constraints governing construction of the guidelines. First, the guidelines must be "consistent with all pertinent provisions of title 18, United States Code." 28 U.S.C. 994(b)(1). The legislative history does not elucidate exactly what was meant to be encompassed by this constraint. One possible explanation is that it was intended simply to underscore the guidelines' necessary subservience to statutory penalties and to emphasize that the guideline scheme should be carefully coordinated with the various court sentencing authorities and procedures in title 18. 11As indicated supra, for several successive Congresses, the SRA was considered as a component part of a comprehensive revision of federal criminal statutes. Under the proposed revision, each statutory offense was to have been assigned a letter grade based upon its relative seriousness, and a sentencing provision in title 18, now codified as section 3581(b), in turn would establish the maximum imprisonment penalty for each offense grade. This proposed penalty scheme may account in part for the directive to the Commission requiring consistency with all pertinent title 18 provisions.

b. 25 Percent Rule. The second overarching constraint, the so-called "25 percent rule" set forth in 28 U.S.C. 994(b), is described in the Senate Committee Report as "of major significance." 12S. Rep. No. 225, supra note 2, at 168. Because the manner in which the Commission heretofore has interpreted and applied this statutory constraint has been the source of recent debate, this issue warrants a somewhat expanded discussion.

Section 994(b), as amended by Public L. No. 99-646 (Nov. 10, 1986), provides as follows:

(b)(1) The Commission, in the guidelines promulgated pursuant to subsection (a)(1), shall, for each category of offense involving each category of defendant, establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code.

(2) If a sentence specified by the guidelines includes a term of imprisonment, the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment.

The Commission has read this subsection as controlling guideline construction in three ways. First, as paragraph (2) plainly says, the maximum permissible sentence in a guideline range of imprisonment may not exceed the minimum by more than 25 percent or six months, whichever is greater. Thus, the first limitation, derived entirely from the facial letter of the language in paragraph (2), bears directly on the maximum permissible width of an imprisonment range ultimately applicable under the guidelines. This straightforward application of the rule simply means that the guidelines may provide a range of, e.g., 18-24 months (because the maximum exceeds the minimum by no more than six months), or 57-71 months (because the maximum exceeds the minimum by only 24.6%), but may not provide, e.g., a range of 18-25 months (in which the maximum exceeds the minimum by seven months or 38.9%).

As enacted in 1984, section 994(b)(2) did not contain the alternative, "six months" maximum limit; i.e., all ranges were constrained entirely by the 25 percent limit. Realizing that, at the low end of the imprisonment spectrum, this would entail unrealistically narrow ranges of, 30-37.5 days, e.g., the Commission proposed in 1986 that Congress amend the statute to alternatively permit ranges as wide as one year (or 25 percent, whichever might be greater). The Department of Justice resisted this Commission initiative, and the House Criminal Justice Subcommittee concluded that the Commission's proposed one-year limitation was "inconsistent with the Sentencing Reform Act" goal of curbing unwarranted disparity. 13H.R. Rep. No. 614, 99th Cong., 2d Sess. 6-7 (1986). Hence, Congress settled on a compromise alternative upper limit of six months. 14Pub. L. No. 363, 99th Cong., 2d Sess. (Jul. 11, 1986). President Reagan signed the bill with "serious reservations," stating that "[t]he range of up to six months . . . is far in excess of what we visualized in 1983 and . . . would threaten the core purpose of the Sentencing Reform Act to establish fairness and certainty in sentencing by confining judicial discretion within a relatively narrow range." The President went on to say that his approval was based on "the understanding that the Sentencing Commission does not expect to utilize the full six-month range for offenses carrying a maximum penalty of two years imprisonment . . .". 15Statement of President Ronald Reagan accompanying signing of H.R. 4801, Pub. L. No. 363 (Jul. 11, 1986). Reflecting this "understanding," the Commission's initial guidelines provided a number of ranges at the low end of the sentencing table that were less than six months in width (i.e., ranges of 0-1, 0-2, 0-3, 0-4, and 0-5 months were established). Effective November 1, 1989, however, the sentencing table was amended to substitute a range of 0-6 months for each of those ranges in which the maximum had been less than 6 months. See Appendix C, Amend. 270 (explaining that the amendment would eliminate certain anomalous results).

The second way in which the Commission heretofore has felt constrained by the 25 percent rule relates to the manner in which non-imprisonment sentences may substitute for required prison sentences within the same guideline range. For example, if the guidelines provide an imprisonment range of 18-24 months, the Commission has taken the view that it would be inconsistent with the 25 percent rule for the guidelines, absent departure, to also authorize a non-incarcerative sentence of straight probation (zero months' imprisonment). This perceived limitation derives from a logical linkage between the language of paragraphs (1) and (2) of subsection (b). Recall that paragraph (1) states that the guidelines shall establish a sentencing range "for each category of offense involving each category of defendant." Paragraph (2) then provides that "[i]f a sentence specified by the guidelines includes a term of imprisonment, the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or six months . . ." Thus, under a strict reading of the combined statutory language, the Commission not only must establish a uniquely applicable guideline range for each cross-section of defendant and offense category, but if imprisonment is a sentencing option for defendants in that uniquely defined range, the 25 percent rule limits the extent to which a non-incarcerative sentence also can be an option for defendants in that same range. In other words, in the above example of a range of 18-24 months' imprisonment, an alternative guideline sentence of straight probation (0 months imprisonment) would not be permissible because the effective guideline range would then be 0-24 months--violating the 25 percent rule.

Nevertheless, in factoring non-imprisonment alternatives into the guidelines, the Commission has elected a less than completely literal interpretation of the statutory term "imprisonment" in section 994(b)(2). Commission implementation decisions in the Sentencing Table and related provisions of Chapter Five reflect a view that the 25 percent rule can be satisfied by "loss of liberty" equivalencies for imprisonment (e.g., under 5C1.1(e)(3), one day of home confinement is punitively equivalent to one day of actual imprisonment). Using these equivalencies, the guidelines gradually blend in alternatives to imprisonment with straight imprisonment. As a result, if the applicable range is in Zone B of the Sentencing Table (e.g., a range of 6-12 months), the court can substitute entirely intermittent, community or home confinement for the minimum prison sentence in the guideline range (e.g., 6 months home confinement). And, if the applicable range is in Zone C of the Sentencing Table (e.g., a range of 10-16 months), the guidelines permit substitution of community or home confinement as a condition of supervised release for up to one-half of the minimum prison sentence in the range (e.g., a sentence of five months' imprisonment followed by a term of supervised release in which the defendant serves another five months in home confinement). This facet of the Commission's implementation of the 25 percent rule has been questioned by, for example, the Department of Justice (insofar as "equating" home detention with imprisonment), 16See statement of U.S. Attorney Robert H. Edmunds, Jr., on behalf of the Department of Justice, at 9-12. U.S. Sentencing Comm'n Hearing on Proposed Amendments to the Guidelines (Feb. 25, 1992). but apparently has not been tested in court.

The third manner in which the Commission has viewed the 25 percent rule as a constraint relates to the matter recently addressed by the Criminal Law Committee of the Judicial Conference. The Committee frames the issue as whether the 25 percent limitation applies only to the ultimately determined range on the Sentencing Table or whether it also applies to intermediate, offense level determinations leading up to the determination of the final guideline range. The Committee has in mind an approach embodied in its 1995 proposed revision of the role in the offense guidelines, under which it was suggested that the sentencing court be afforded discretion to select a role adjustment of from 1 to 4 levels, guided by a list of relevant considerations. The Committee concludes that the 25 percent rule permits such an approach and, furthermore, that such an approach is a preferable means of achieving SRA goals.

The Commission thoroughly aired and ultimately rejected this view in 1987 when it constructed the initial guidelines. The second draft of guidelines published for comment--the January 1987 Revised Draft--contained guidelines that, in a number of instances, proposed a choice among multiple base offense levels and also discretion to choose among multiple offense level adjustments for various aggravating and mitigating factors. 17See Exhibit 1, attached. After reviewing pro and con comments from a variety of sources, including legal and policy opposition expressed by Associate Attorney General Trott on behalf of the Department of Justice, 18See Exhibit 2, attached. the Commission abandoned that approach in favor of uniquely determined offense levels.

At its core, the issue for Commission consideration is whether it is consistent with the SRA and congressional intent to permit a discretionary choice among multiple offense levels or criminal history categories for similarly situated defendants, given a sentencing table that also provides ranges of the maximum width. 19For purposes of analyzing this issue, it should be recognized that there is no essential difference in considering whether the statute permits discretionary choices among base offense levels, adjustments to base offense levels, final offense levels, or criminal history categories. However the issue is framed, it reduces to the same basic question of whether the 25 percent rules stands as a more comprehensive check on Commission and court discretion than simply a limit on the width of the ultimately applicable sentencing range. In the view of Counsel, that question generally must be answered in the negative so long as the current basic structure of the guidelines is maintained. Rather, section 994(b), as applied to the current guidelines structure, requires that a sentencing court's selection among multiple guideline choices be sufficiently channeled by Commission guidance so that a reviewing appellate court may determine, in accordance with 18 U.S.C. 3742, the "correctness" of the district court's decision in assigning the category of offense and offender, i.e., the guideline range, to the defendant. 20This is not to suggest that it would be impossible to develop a guidelines structure that affords a greater measure of guided discretion. It is simply to state that any proposed modification should respect the 25 percent rule as more than a constraint on the width of the final guideline range.

While much could be said about this issue, 21Should the Commission deem it necessary, Counsel will be glad to prepare a more detailed legal analysis of the issue. two principal arguments persuade Counsel that the Commission's historical interpretation of this matter clearly is more faithful to statutory intent than the alternative view. The first derives from the statutory language itself. Because both paragraphs of section 994(b) relate to the same subject matter (i.e., construction of guideline ranges) and were, save for the 1986 amendments to paragraph (2) discussed supra, enacted simultaneously as part of the same, overall statutory scheme (i.e., the SRA), they clearly should be read, construed, and applied together. So construed, section 994(b) contemplates a uniquely applicable guideline range of sentences, that range varying by no more than the greater of 25 percent or six months, for each combination of offense and offender characteristics. In framing the rule, Congress could not know, and did not specify, how the Commission ultimately would construct its guidelines. Indeed, the legislative history indicates that "[t]he guidelines may be designed . . . in the form of a series of grids, charts, formulas, or other appropriate devices, or perhaps a combination of such devices." 22S. Rep. No. 225, supra note 2, at 168. But, however the guidelines were designed, Congress contemplated that the guideline range(s) for a particular offense would be "each keyed to one or more variations in relevant factors, [with] no one particular guideline range [varying] by more than 25 percent." 23Id.

The Commission ultimately settled on a guideline scheme that, in its basic structure, uses (1) offense levels to describe the relative seriousness of an offense, (2) criminal history points and categories to describe the relative seriousness of the defendant's prior record, and (3) a sentencing table containing ranges that, in each instance, are of the maximum width allowed under section 994(b)(2). Section 994(b) speaks to the degree of unfettered sentencing variation permitted under that scheme taken as a whole, when applied to any given cross-section of offense and offender categories. Having already made the final ranges as wide as section 994(b)(2) permits, it logically follows that if the guideline scheme were altered to additionally permit variation among multiple offense levels or criminal history categories for otherwise similar offenders, the range of guideline-permissible sentences for that offender category would effectively vary by more than 25 percent.

A second principal argument against the more discretionary view of the 25 percent rule derives from the overall legislative context and history. Interpreting the 25 percent rule to narrowly constrain only the final, sentencing table range is at odds with the fundamental, disparity reduction purpose of the SRA. Read in such a manner, the rule that Congress thought "of major significance" in achieving its intended disparity-reduction goals becomes of little real import in constraining Commission guideline construction or court sentencing decisions. For example, if it is accepted that the 25 percent rule applies only to the final sentencing table range, then there is no effective statutory limit on the choices the Commission could afford among offense levels or criminal history scores at intermediate stages of guideline application. Hence, under that view, the Commission could, if it chose, allow courts unlimited alternative choices for any or all determinations in the process of guideline application, so long as the final range was within the 25 percent limit. As a consequence, the aggregate effective variation in the sentencing range for defendants who in fact have the same guideline-significant offense and offender characteristics could far exceed the permissible 25 percent. Given the deep concern about unwarranted disparity that motivated the SRA, Counsel believes Congress hardly could have intended that result.

Statutory interpretation arguments aside, from a practical standpoint, the Commission should carefully consider the litigation that surely would ensue, as well as the political consequences of congressional review, if it changes its view on the limitations of the 25 percent rule. Promulgation of guideline amendments affecting discretionary choices among offense levels would almost certainly provoke nationwide statutory compliance challenges by either the Department of Justice, adversely affected defendants, or both. 24Hence, it is recommended that prior to any revision in its view the Commission ensure that the Department would not challenge and, moreover, is prepared to vigorously defend such an approach. Moreover, the contention that a guideline system affording sentencing courts discretionary choices among an array of possible offense levels would result in less litigation at the district and appellate levels is somewhat debatable. For example, appellate courts initially would have to litigate and establish the appropriate standards of appellate review for such discretionary determinations, taking into account the review standards contemplated under 18 U.S.C. 3742. Additionally, appellate courts inevitably would face the daunting task of deciding when and how to create a common law of sentencing "gloss" distinguishing among permitted alternatives under the guidelines.

In summary, given the inherent litigation and political risks, if the Commission ultimately concludes that the 25 percent rule as presently interpreted is unduly constraining, perhaps the more prudent course would be to try to work out a legislative proposal that all of the principal parties believe will more effectively promote sound sentencing policy.

Level of detail, offense and offender characteristics

In setting forth a lengthy list of offense and offender characteristics for Commission consideration, 25See 28 U.S.C. 994(c), (d). the enabling statute hints at, but does not expressly describe, the level of detail Congress contemplated the guidelines would encompass. However, the accompanying Senate Judiciary Committee Report leaves little doubt that a quite detailed set of guidelines was expected. The Commission was to develop "a complete set of guidelines that covers . . . all important variations that may be expected in criminal cases, and that reliably breaks cases into their relevant components and assures consistent and fair results." 26S. Rep. No. 225, supra note 2, at 168. As developed, the sentencing guidelines were expected to be considerably more detailed than, for example, the then existing U.S. parole guidelines. "The Committee expects the Commission to issue guidelines sufficiently detailed and refined to reflect every important factor relevant to sentencing for each category of offense and each category of offender, give appropriate weight to each factor, and deal with various combinations of factors." 27Id. at 169. Thus, while sensitive to concerns that the guidelines not be so complex as to be unworkable, the Committee Report emphasized the desire for a rather intricate and comprehensive set of guidelines. (Note: A staff paper focusing more specifically on the level of detail in the guidelines is forthcoming.)

Under section 994(c), Congress listed the following seven factors, "among others," relating to offense seriousness that the Commission was to consider and build into the guidelines as the Commission deemed appropriate:

(1) offense seriousness grade, 28See supra note 11.

(2) specific aggravating and mitigating circumstances,

(3) nature and degree of harm,

(4) community view of offense gravity,

(5) public concern about the offense,

(6) likelihood of achieving general deterrence, and

(7) local and national offense frequency.

Each of these factors was discussed in some detail in the Senate Judiciary Committee Report. 29S. Rep. No. 225, supra note 2, at 169-71.

Under section 994(d), Congress listed the following eleven offender characteristics, "among others," that the Commission should consider and build into the guidelines as the Commission deemed appropriate:

(1) age,

(2) education,

(3) vocational skills,

(4) mental and emotional condition,

(5) physical condition, including drug dependence,

(6) employment record

(7) family ties and responsibilities,

(8) community ties,

(9) role in the offense,

(10) criminal history, and

(11) criminal livelihood.

With respect to a number of the listed offender characteristics--education, vocational skills, drug dependence, employment record, family and community ties--the Committee Report expressly indicates that the Commission should treat the factor as "generally inappropriate" in determining whether and for how long to imprison; however, each of the factors nevertheless might be appropriate to other guideline determinations (e.g., conditions of probation or supervised release). 30Id. at 172-74. Note: A staff paper discussing the manner in which the Commission incorporated offender characteristics into the guidelines is forthcoming.

The Commission was further instructed to "assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, and socioeconomic status of offenders." 28 U.S.C. 994(d). The intent of this provision was to "make it absolutely clear that it was not the purpose of the list of offender characteristics in subsection (d) to suggest in any way that the Committee believed that it might be appropriate, for example, to afford preferential treatment of defendants of a particular race or religion, or level of affluence, or to relegate to prison defendants who are poor, uneducated, and in need of education and vocational training." 31Id. at 171.

Overall, the legislative history makes it clear that Congress wanted two factors--the seriousness of the offense and defendant prior record--to principally dictate the appropriate sentence under the guidelines regime. 32Id. at 161.

The relatively high level of detail expected under the guidelines is relevant also to the manner in which Congress believed the guidelines would further the goals of proportionality and individual fairness. By comprehensively taking into account the more important offense and offender factors relevant to sentencing and prescribing for them a uniform weight, it was expected that the guidelines actually would enhance the proper individualization of sentences. Each sentence would be "the result of careful consideration of the particular characteristics of the offense and the offender, rather than being dependent on the identity of the sentencing judge and the nature of his sentencing philosophy." 33Id. Thus, contrary to what might be expected, guideline departure authority was not necessarily intended as the principal means of achieving an appropriate degree of individualized sentence. Rather, more typically, that goal was to be achieved through uniform application of a relatively detailed set of factors prescribed by the guidelines themselves (consistent with the "heartland" concept developed by the Commission and embodied in the guidelines).

Specific offender categories

In addition to the overarching constraints and more general directives previously described, Congress identified in the SRA four categories of offenders, according to the relative seriousness of their current offense and prior record, that span the spectrum of punishment severity.

a. Maximum imprisonment-career offenders. At the high end of the severity spectrum, Congress mandated that the guidelines provide at or near maximum authorized punishment for three-time violent offenders and/or drug traffickers. 28 U.S.C. 994(h). The Commission has implemented this directive through the career offender guidelines, 4B1.1, 4B1.2. 34A recent Commission amendment redefining the manner in which the Commission views this directive is currently the subject of Department of Justice-initiated legal challenges.

b. Substantial imprisonment. Congress then identified five categories of particularly serious criminal conduct for which substantial terms of imprisonment would be appropriate. These categories include (1) offenders with a history of multiple, separate offenses, (2) offenders who engage in a pattern of criminal conduct as a livelihood, (3) managers or supervisors in concerted racketeering activity; (4) offenders who committed a violent felony while on bail release, and (5) substantial drug traffickers. 28 U.S.C. 994(e). In general, the Commission has complied with this directive by its assignment of appropriate offense levels and criminal history points for the various categories of offenders. Additionally, section 4B1.3 assures a minimum offense level of 13 for those who committed an offense as part of a pattern of criminal conduct engaged in as a livelihood.

c. Some imprisonment. Next, Congress indicated that the guidelines should reflect the "general appropriateness" of a prison sentence for violent crimes resulting in serious bodily injury, 28 U.S.C. 994(j). This directive has been carried out through the Commission's various choices of offense levels and specific offense characteristics.

d. No imprisonment. Finally, at the lower end of the punishment spectrum, the Commission was instructed 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." Id. Implementation of this provision, which has been contested unsuccessfully by a number of defendants, 35See, e.g., United States v. Davern, 970 F.2d 1490 (6th Cir. 1992), cert. denied, 113 S. Ct. 1289 (1993); United States v. Ellen, 961 F.2d 462 (4th Cir.), cert. denied, 113 S. Ct. 217 (1992); United States v. Barrett, 937 F.2d 1346 (8th Cir. 1991), cert. denied, 112 S. Ct. 322 (1991); has been approached through the assignment of offense levels and adjustments, as well as through the criminal history provisions (in which first offenders receive a criminal history score of zero). The Commission's manner defining what constitutes an "otherwise serious offense" clearly is a policy decision that is open to debate and possible Commission reconsideration.

Other specific circumstances

The SRA also gave the Commission instructions about how the guidelines should account for (1) multiple offenses 3628 U.S.C. 994(a)(1)(D), (l). (reflected by the Commission in Chapter Three, Part D, 5G1.2 and 5G1.2) and (2) substantial assistance (reflected in 5K1.1). 37Id., section 994(n). This provision was added by the Anti-Drug Abuse Act of 1986, which simultaneously added 18 U.S.C. 3553(e). Finally, the Commission was instructed to ensure that the guidelines reflect the inappropriateness of using prison sentences to achieve rehabilitative goals, 38Id., section 994(k). a directive that the guidelines arguably achieve by expressly basing imprisonment determinations on other, permissible offense and offender characteristics.

Guideline Development and Amendment Processes

The SRA provided instruction and guidance to the Commission designed to ensure an open, widely consultative process of guideline development and periodic revision. See 28 U.S.C. 994(x) (relating to public notice and comment), (o) (relating to consideration of views and reports from institutional participants in the criminal justice system and others), and (p) (prescribing the timing and procedures for amendments). Additionally, the SRA instructed the Commission to ensure that those processes reflected appropriate consideration of data about past sentencing practices (28 U.S.C. 994(m)) and prison impact (28 U.S.C. 994(g)). 39Commission compliance with the directive of section 994(g) to formulate the guidelines so as to "minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission" has been challenged unsuccessfully by a number of defendants. See, e.g., United States v. Martinez-Cortez, 924 F.2d 921 (9th Cir. 1991); United States v. Foote, 898 F.2d 659 (8th Cir. 1990), cert. denied, 111 S. Ct. 112 (1990); United States v. Erves, 880 F.2d 376 (11th Cir. 1989), cert. denied, 110 S. Ct. 416 (1989); United States v. White, 869 F.2d 822 (5th Cir. 1989), cert. denied, 109 S. Ct. 3172 (1989).

Post-SRA Mandates and Constraints

Subsequent to enacting the SRA, Congress has continued to instruct the Commission, sometimes generally and sometimes very specifically, about how the guidelines should be amended to achieve desired sentencing goals for specified categories of offenders. While the Commission did not initially suggest this means of congressionally affecting sentencing policy through the guidelines, it has expressly and regularly encouraged it as an alternative to mandatory minimums. 40Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 118-124 (August 1991). Congress's use of mandatory minimums since the advent of the guidelines has been uneven; however, in general, it is fair to say that Congress often has opted to employ guideline-related directives to the Commission in lieu of originally proposed statutory minimum sentences. Thus, at a cost to the Commission's discretion and the introduction of some policy results that the Commission might view as in tension with the overall guideline rationale, this approach has been moderately successful in mitigating the introduction of new mandatory minimums.

The post-SRA directives to the Commission are numerous and sometimes quite detailed. See Appendix A enumerating them as a summary listing, categorized by statutory source:

Pending Legislation

The legislative trend of affecting sentencing policy in part through detailed directives to the Commission appears to be continuing in the current Congress. A bill, H.R. 1240, passed by the House and Senate in slightly different forms, directs the Commission to further increase offense levels for various child pornography offenses, add an enhancement for the computer transmission of pornographic materials, and submit a report to Congress. A pending terrorism bill, H.R. 1710, directs the Commission to broaden its recently promulgated, international terrorism enhancement to cover domestic terrorism incidents, while the Senate counterpart, S. 735, directs the Commission to enhance penalties for damaging a federal interest computer. Should the Congress enact another comprehensive crime bill, additional directives may well be considered.

Implications of Post-SRA Legislation on Guideline Simplification

In addition to their effective substitution, in many instances, for mandatory minimums, the aforementioned existing and likely future directives to the Commission have other substantial implications for guideline simplification that should be carefully considered. First and foremost, the directives indicate areas of special sentencing policy concern to Congress. How best to incorporate the numerous general and specific directives into a revised guideline structure (absent their possible modification by Congress) may be a complicated matter. In this regard, some--but not all--of the directives expressly anticipate the possibility of future Commission amendments to the guidelines structure and instruct the Commission, in the event such changes are proposed, to implement the instruction so as to achieve a comparable result.

Clearly, an offense specific or larger categorical basis, Congress has shown no hesitancy about commanding the Commission to add additional specific factors to the guidelines. Even in the face of some Commission arguments suggesting an insufficient empirical basis for such specific enhancements, Congress sometimes has seen fit to insist on the inclusion of new sentencing factors. Certainly, these political realities and tendencies must be considered as the Commission proceeds with its simplification project.

Possible Statutory Revisions

This discussion of the basic SRA framework and subsequent congressional embellishments of it may suggest a number of possible approaches that the Commission wishes to explore. These could include, for example, legislative modification of the 25 percent rule, amendment of the departure and/or appellate review standards, or other changes. Counsel stands ready to draft any options that the Commission wishes to pursue. However, because even the consideration of possible statutory changes may have political repercussions, it; was felt best to seek guidance from the Commission before statutory revision options are presented.

APPENDIX A: Post-SRA Directives to the Sentencing Commission

Anti-Drug Abuse Act of 1988, Pub. L. 100-690

(1) Minimum offense levels for certain defendants convicted of operating common carriers while intoxicated--see 2D2.3.

(2) Enhanced and minimum offense level for introducing drugs into prisons--see 2P1.2(c)(1).

(3) Enhanced and minimum offense level for drug trafficking involving minors--see 2D1.2.

(4) Enhanced and minimum offense level for drug importation by aircraft or boat--see 2D1.1(b)(2).

Major Frauds Act of 1988, Pub. L. 100-700

(5) Enhanced penalty for fraud resulting in conscious or reckless risk of serious injury--see 2F1.1(b)(4).

Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub. L. 101-73

(6) Enhanced penalties for frauds substantially jeopardizing financial institutions--see 2F1.1(b)(6)(A).

Crime Control Act of 1990, Pub. L. 101-647

(7) Enhanced penalties for smokable crystalline methamphetamine (ice) offenses--see 2D1.1.

(8) Minimum offense level for major bank frauds--see 2F1.1(b)(6)(B).

(9) Enhanced offense levels for child kidnapping--see 2A4.1.

(10) Enhanced penalties for sexual crimes against children--see 2A3.1, 2A3.2, 2A3.4.

FY 1992 Treasury, Postal Service Appropriations Act, Pub. L. 102-141

(11) Enhanced and minimum offense level for child pornography offenses--see 2G2.2, 2G2.4, 2G3.1. Note: This series of instructions mandate that the Commission reverse certain amendment decisions submitted to Congress earlier in the 1991 amendment cycle.

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322

(12) Enhanced offense levels for hate crimes--see 3A1.1, effective November 1, 1995.

(13) Report to Congress and enhanced penalties for fraud against older victims--see 3A1.1(b), as amended effective November 1, 1995. Note: The required report to Congress was submitted March 13, 1995.

(14) Enhanced penalties for violent crimes against older victims--see 2A3.1, 2A3.3, 2A3.4, 3A1.1, as amended effective November 1, 1995.

(15) Enhanced penalties for drug trafficking in truck stops, rest areas--see 2D1.2.

(16) Enhanced penalties for involving minors in crime--see 3B1.4, as promulgated effective November 1, 1995.

(17) Enhanced penalties for terrorist crimes--see 3A1.4, as promulgated effective November 1, 1995.

(18) Enhanced penalties for firearms possession by violent felons or serious drug offenders--see 2K2.1.

(19) Enhanced penalties for using firearm in commission of counterfeiting or forgery--see 2B5.1, 2F1.1, as amended effective November 1, 1995.

(20) Enhanced penalties for second offense of using explosive to commit felony--see 2K2.4, 4A1.1, 4A1.2.

(21) Enhanced penalties for use of semiautomatic firearm during crime of violence or drug trafficking--see 2D1.1, 2K2.1, 5K2.17, as amended effective November 1, 1995.

(22) Enhanced penalties for illegal drug use in prisons and smuggling into prisons--see 2D1.1, 2D2.1, as amended effective November 1, 1995.

(23) Enhanced penalties for drug trafficking in protected locations--see 2D1.2.

(24) Reduced penalties for nonviolent, low-criminal history drug traffickers ("Safety Valve")--see 5C1.2. Note: As amended effective November 1, 1995, 2D1.1 provides an additional two-level reduction for offenders meeting the safety valve criteria and whose offense level is 26 or greater. The amendment thereby

coordinates the minimum of the guideline range for the least culpable drug trafficking defendant with the 24-month sentence floor established in the directive to the Commission.

(25) Report to Congress and amendments relating to intentional transmission of the HIV virus. Note: The report was submitted March 13, 1995. No amendments were deemed immediately necessary.

(26) Report to Congress and amendments regarding sexual offenses. The report was submitted March 13, 1995. See 2A3.1, as amended effective November 1, 1995.

(27) Report to Congress and recommendations regarding cocaine offenses. The report was submitted February 28, 1995. See 2D1.1, as amended effective November 1, 1995.

United States Sentencing Commission