Guiding the sentencing court's discretion: a proposed definition of the phrase "non-violent offense" under United States Sentencing Guidelines s. 5K2.13.

• Author: Travis, Seth A.

1. INTRODUCTION

   The United States Sentencing Commission enacted the Sentencing Guidelines in an attempt to establish a fair and effective federal sentencing system.(1) This system instituted sentencing ranges which the sentencing court must apply when sentencing all offenders.(2) The Commission recognized, however, that there are certain factors relevant to a crime or criminal for which the general Guidelines could not fully account.(3) Therefore, the Commission established policy statements which enabled the sentencing court to depart from the applicable Guideline when certain factors exist.(4)

   One such policy statement is United States Sentencing Guideline [sections] 5K2.13, which allows the court to use the defendant's reduced mental capacity as a mitigating factor in sentencing.(5) Section 5K2.13 sets out three requirements for departure. The defendant must have (1) committed a non-violent offense (2) while suffering from a significantly reduced mental capacity which contributed to the commission

   of the offense and was not caused by voluntary use of drugs or other intoxicants, and (3) a criminal history which does not indicate a need for incarceration to protect the public. Elements (2) and (3) are generally fact specific inquiries that have not produced opposing legal views and are infrequently reviewed on appeal.(6)

   Conflict has arisen within the federal circuits, however, regarding the interpretation of element (1), the commission of a non-violent offense.(7) The Sentencing Commission failed to adequately define the phrase "non-violent offensein the Guidelines and the Supreme Court has yet to examine this issue. Although this phrase appears to be straightforward, the federal courts have been unable to establish a consistent interpretation.

   The majority of circuits have defined the term "non-violent offense" as any crime that does not have "as an element the use, attempted use, or threatened use of physical force...."(8) These circuits have held that this definition of "non-violent offense" is the contrapositive of the definition of "crime of violence" in U.S.S.G. [sections] 5K2.13.(9) Therefore any crime defined as violent under [sections] 4B1.2, including threats of violence, are not "non-violent offenses."(10)

   A minority of circuits have concluded that this approach is not supported by the policies underlying [subsections]4B1.2 and 5K2.13.(11) As such, they have applied a fact specific inquiry to determine whether the underlying conduct was indeed non-violent.(12)

   This Comment suggests that the current interpretations of "non-violent offense" are inconsistent with the underlying purposes of the Sentencing Guidelines and [sections] 5K2.13 in particular, because they fail to adequately balance a determinate system with the leniency intended by [sections] 5K2.13. The courts adopting the majority approach fail to recognize textual difficulties with their analysis, as well as the leniency espoused by [sections] 5K2.13. The courts adopting the minority rationale have failed to offer sufficient guidance to the sentencing court. Therefore, this Comment offers a new approach that balances these competing interests.

   To better understand the following discussion, Part II briefly discusses the history of sentencing and sets forth the concerns confronting Congress when promulgating the Sentencing Guidelines. Part III discusses the approach taken by the majority of the federal circuits. It analyzes the rationale of the approach and offers criticisms of its rationale. Part IV summarizes the minority approach and sets forth criticisms of its interpretation. Part V then proposes a revision of [sections] 5K2.13 in light of the current provision's failure to provide the just sentencing scheme envisioned by Congress when establishing the Guidelines and its policy statements.

2. HISTORY

   For most of the past century, the federal government's system of sentencing criminals was largely indeterminate.(13) While statutes specified penalties for crimes, they typically gave the sentencing court broad discretion to decide whether the offender should be incarcerated, for how long, and whether some other form of punishment, such as probation or a fine, should be imposed in place of imprisonment.(14) This system was supplemented by parole, which allowed the offender to return to society earlier than his sentence would have allowed under the "guidance and control: of their parole officer.(15)

   This system of discretionary sentencing and parole was based on the desire to rehabilitate the offender, thereby minimizing the risk that he would resume criminal activity upon his unsupervised return to society.(16) Each criminal's amenability to rehabilitation was necessarily an ad hoc determination made by the individual's sentencing judge and parole officer.(17) The judge and parole officer would assess the criminal's amenability to rehabilitation before handing down the sentencing and release decisions.(18) Therefore, sentencing officials exercised great discretion.(19)

   The wide discretion exercised by sentencing officials, however, led to serious disparities in sentences.20 Also, the indeterminate sentencing system produced high recidivism rates. Critics questioned rehabilitation as a theory of punishment and regarded its goals as unattainable in most cases.(21) Therefore, Congress determined that a new system, which incorporated alternative theories of punishment, was necessary.(22)

   The first step in moving away from the discretionary system came in 1958, when Congress authorized the creation of judicial sentencing institutes and joint councils, whose purpose was to formulate sentencing standards.(23)

   In 1973, still unhappy with the system of sentencing currently in place, the United States Parole Board adopted guidelines that established a "customary range" of confinement.(24) In 1976, Congress endorsed this initiative through the Parole Commission and Reorganization Act.(25) In that act, Congress attempted to give the Parole Commission a role in moderating "the disparities in the sentencing practices of individual judges."(26) Under the new system, the judge continued to set the sentence within the statutory range fixed by Congress, while the Parole Commission set the prisoner's actual release date.

   This indeterminate sentencing system failed in two respects. First, the system created great variation among sentences imposed by different judges on similarly situated offenders.(27) For instance, a statistical survey of the Second Circuit revealed that sentences imposed in almost identical cases ranged from three to twenty years.(28)

   Second, the system created uncertainty as to the time the offender would actually serve in prison.(29) Race, sex, and the region in which the defendant was convicted, among other things, caused these differences.(30) These unfair disparities and uncertainties caused a widespread public concern because they proved to be a serious impediment to an evenhanded and effective criminal justice system.(31)

   Congress recognized the need for a new system because these new approaches failed to cure the "shameful" and "unjustified" consequences of this failing system.(32) After wrestling with the problem for more than a decade,(33) Congress enacted the Sentencing Reform Act of 1984.(34)

   The main goal of the Sentencing Reform Act was to channel judicial discretion through a highly structured sentencing scheme designed to promote honesty,(35) uniformity, and proportionality(36) in sentencing.(37) To promote honesty, Congress eliminated the parole system for federal prisoners sentenced after the Commission instituted the Guidelines.(38) As a result, a sentence imposed by the court would be the sentence served in prison, less approximately fifteen percent reduction for good behavior.(39) To promote uniformity and proportionality, the Sentencing Reform Act established the Federal Sentencing Commission to promulgate the detailed Sentencing Guidelines which judges must follow when imposing sentences.(40)

   As part of the Sentencing Reform Act Congress enacted a Guidelines Manual, which set out goals that Congress intended to achieve by enacting the Sentencing Guidelines.(41) The statutory mission states that:

   The Sentencing Reform Act of 1984 . . . provides for the development of

   Guidelines that will further the basic purposes of criminal punishment:

   deterrence, incapacitation, just punishment, and rehabilitation. The Act

   delegates broad authority to the Commission to review and rationalize

   the federal sentencing process.(42) Additionally,

   Congress sought reasonable uniformity in sentencing by narrowing the

   wide disparity in sentences imposed for similar criminal offenses committed

   by similar offenders. [It also] sought proportionality in sentencing

   through a system that imposes appropriately different sentences for

   criminal conduct of differing severity.(43)

   As can be evidenced by these statements, rehabilitation was no longer the sole theory behind sentencing.(44) Further, Congress intended to totally replace the current system with a more structured scheme designed to limit judicial discretion.(45)

   Congress also enacted a number of specific directives to further narrow the Commission's drafting discretion.(46) For example, statutes instructed the Commission to take into account the nature and degree of harm caused by the offense, community views and concerns about the gravity of the offenses, and aggravating and mitigating circumstances when establishing offense categories.(47) These directives also allowed the Commission to consider the nature and capacity of the correctional facilities and services.(48) Finally, the maximum range of imprisonment for each sentencing category could not exceed the minimum by more than twenty-five percent.(49)

   These goals led the Commission to create the Sentencing Guidelines, a basically determinate sentencing system.(50) It created a generic sentencing table containing forty-three...