No lie about it, the perjury sentencing guidelines must change.

• Jurisdiction: United States
• Author: Tupman, Nicole Oelrich
• Date: 22 March 2014

Perjury is an ancient crime that has been prominent in the media recently with high-profile perjury cases such as those of Barry Bonds and Roger Clemens. Defendants convicted of perjury, like Bonds, are sentenced under the current United States Sentencing Guidelines [section] 2J1.3. But the current Perjury Guidelines are working an injustice in the American legal system and undermining Congress's goals in creating the Guidelines, namely consistency and fairness in the federal sentencing process.

Under the Perjury Guidelines, a judge can increase a defendant's sentence by applying a cross reference to the Accessory After the Fact Guideline. This cross reference directs a judge to increase a defendant's sentence where the underlying perjury was "in respect to " an "underlying crime, " typically resulting in a significant increase in prison time. The "underlying crime" includes crimes of which a jury acquitted a defendant or crimes with which a defendant was never charged.

For example, a defendant committed perjury during a grand jury investigation into the rape and murder of a 15-year-old girl, but the government only charged him with perjury. Without applying the cross reference and factoring in the defendant's criminal history, the advisory Guidelines range was 18-24 months imprisonment. At sentencing, however, the judge applied the cross reference and determined that the underlying criminal offense was second-degree murder. The resulting advisory range was 108-135 months. But had the defendant committed perjury' in a civil case, his Guidelines range would only be 15-21 months. If he had committed perjury in a criminal case involving the distribution of 50 grams of methamphetamine, then the Guidelines range would be 63-78 months, or in the case of perjury involving a bank robbery, 21-27 months.

As these hypotheticals demonstrate, the current Perjury Guidelines create vast inconsistencies in sentencing depending on (1) whether perjury was committed in a civil or criminal case, and (2) what "underlying crime" is used to calculate the Guidelines range for a perjury violation in a criminal case. Undoubtedly, perjury is a serious crime and threatens the integrity of the American justice system. All perjury violations, however, are serious and involve the same core conduct and, as such, perjury violations should be sentenced in a similar manner. This lack of consistency in sentencing undermines Congress's goals in creating the Guidelines.

The Perjury Guidelines also violate a defendant's Sixth Amendment rights by destroying the criminal jury's important historical role because a judge may use uncharged or acquitted conduct to increase the sentence for a perjury violation.

Utilizing uncharged or acquitted conduct at sentencing is not new to the Guidelines. But the cross reference, where the perjury is "in respect to" the "underlying crime," is so broad and inconsistent in application that it allows unproven and uncharged conduct to impact excessively the advisory Guidelines range. Congress or the United States Sentencing Commission can and should rectify this situation.

1. INTRODUCTION

   The current Perjury Guidelines violate the most basic tenets of the American criminal justice system: the presumption of innocence and the right to an impartial jury trial. The presumption of innocence is an "axiomatic and elementary" tenet of criminal law, and enforcement of this tenet is the foundation of the American criminal justice system. (1) The other foundational principle of the system requires all defendants to receive a fair and impartial jury trial. (2) But the current Perjury Guidelines (3) violate the American criminal justice system's commitment to fairness and impartiality when applied to a defendant acquitted of, or never charged with, any other crime besides perjury committed in a criminal case.

   United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") [section] 2J1.3(c)(1) cross references the accessory after the fact Guideline promulgated under U.S.S.G. [section] 2X3.1 ("[section] 2J1.3(c)(1) Cross Reference" or "Cross Reference"). If the sentencing judge finds that the defendant committed perjury "in respect to" a criminal offense, the judge may enhance the sentence by the base offense level for that same criminal offense, (4) which can lead to a significantly higher sentence than if the Cross Reference was not applied.

   United States v. Olsen (5) provides an example of how a judge's use of the Cross Reference can significantly increase the penalty for a defendant convicted of perjury. In Olsen, a jury convicted the defendant of 15 counts of perjury in a grand jury investigation into the rape and murder of a 15-year-old girl, but the government charged him only with perjury. (6) Without applying the Cross Reference and factoring in the defendant's criminal history, the advisory Guidelines range was 18-24 months imprisonment. (7) At sentencing, however, the judge chose to apply the Cross Reference to an underlying criminal offense of second-degree murder. (8) The government did not charge perjury with respect to second-degree murder and no jury found that the defendant committed perjury with respect to the girl's murder. Instead the judge, and the judge alone, determined that the perjury was with respect to second-degree murder. (9) After factoring in the defendant's criminal history, the resulting advisory Guidelines range was 108-135 months. (10) The top end of the defendant's sentencing range jumped from 24 to 135 months, a 462% increase in the recommended prison term. The defendant's resulting sentence of 150 months was six times longer than his original Guidelines sentence of 18-24 months. (11) Sentences such as the one in Olsen are not uncommon under the current Perjury Guidelines. (12)

   This article argues that when judges apply the Cross Reference to a defendant who was not charged with or convicted of the underlying crime, that sentence fails to fulfill the Guidelines' mission for three reasons: (1) invocation of the Cross Reference violates a defendant's constitutional rights, especially his Sixth Amendment right to a trial by jury; (13) (2) the Cross Reference violates the Guidelines' underlying policies and goals; and (3) sentencing a defendant under the Cross Reference creates unnecessarily high sentences.

   Part II of this article provides a brief overview of the Guidelines and their evolutionary nature. Part III discusses the Perjury Guidelines in detail and changes to them over time. Part IV provides an overview of courts' interpretations of the Cross Reference. Part V argues that the current application of the Cross Reference violates a defendant's constitutional rights and erodes the criminal jury's role in the American justice system. This article ends with a short conclusion calling for either Congress or the United States Sentencing Commission to change the Perjury Guidelines.

2. A BRIEF HISTORY OF THE GUIDELINES

   1. SENTENCING BEFORE THE GUIDELINES

      In the late nineteenth century, American criminal statutes shifted away from providing fixed-term sentences for crimes and recognized that judges had broad discretion to sentence criminal defendants. (14) Thus, criminal statutes provided large ranges within which a defendant could be sentenced, (15) instead of the potential mandatory minimum and/or maximum sentences that currently exist. (16)

      This indeterminate sentencing system was often based on rehabilitating the offender:

      Frequently, these systems were both unguided and indeterminate. Expansive, unguided, and largely unreviewable discretion was the common thread running through many, if not most, such systems. Based on a rehabilitative model of punishment, these unguided, indeterminate sentencing schemes prized individualization in an effort to rehabilitate the offender. The idea was to incarcerate, and thus work to rehabilitate, the inmate "until he or she had reformed--which was by definition an indeterminate time." Despite their noble intentions, these unguided, indeterminate sentencing schemes presented a host of problems and inequities. (17) Lacking any system for regulating sentences, the pre-Guidelines American sentencing system was a "Wild West of unregulated discretion." (18)

      This Wild West system resulted in gross inequities and disparities in sentences. For example, one sentencing judge's system consisted of the judge asking the defendant to stand up, turn around, and count the number of spectators in the usually full courtroom. (19) If the defendant responded "17," the judge would divide the number of spectators in half and that became the bottom number in the sentencing range and the total number of spectators became the top number in the sentencing range. (20) Thus, the resulting range for 17 spectators would be 8-17 years. (21) While this particular judge's system of sentencing was especially inequitable, inequality in sentencing was rampant during the indeterminate sentencing time period. (22)

      Beginning in the 1950s, commentators began calling for reform in the sentencing system. Professor Norval Morris, a noted criminologist and advocate for criminal justice reform, argued for a uniform sentencing system. (23) In 1973, Judge Marvin Frankel shared his vision for creating a universal sentencing system. (24)

      A few years later, Congress, led by Senator Edward Kennedy, began exploring a way to create a new sentencing system. (25) The end result was the bipartisan Sentencing Reform Act of 1984 ("SRA"), (26) which Congress passed as part of the Comprehensive Crime Control Act. (27)

   2. CONGRESS PASSES SRA TO ENSURE FAIRNESS AND CONSISTENCY IN SENTENCING

      One of SRA's most radical provisions called for the creation of "an independent commission in the judicial branch ... a United States Sentencing Commission." (28) The Commission has two statutory purposes. (29) First, Congress charged the Commission to "establish sentencing policies and practices for the federal criminal...