Reforming the Federal Sentencing Guidelines' misguided approach to real-offense sentencing.

• Author: Yellen, David

INTRODUCTION I. WHAT IS REAL-OFFENSE SENTENCING? II. REAL-OFFENSE SENTENCING AND SENTENCING GUIDELINES A. State Guidelines Systems B. Federal Sentencing Guidelines C. The Impact of Apprendi, Blakely, and Booker CONCLUSION: SOME BASIC PRINCIPLES A. Simplicity B. Transparency C. Criminal Conduct INTRODUCTION

All sentencing systems make use of information beyond the elements of the offense of conviction. This practice, known generally as "real-offense sentencing," is necessary because of the complexity and variety of criminal behavior and the need to keep criminal statutes relatively simple. Two defendants convicted of violating the same statute may be very different in terms of amount of harm caused, levels of personal culpability, and degrees of dangerousness to the community.

One of the enduring challenges in sentencing policymaking is the need to identify the appropriate structure and scope of real-offense sentencing. What facts beyond the elements of the offense of conviction should have an impact on the defendant's sentence? Should consideration of such additional facts be systematized or left to the discretion of individual judges? Should certain types of information be excluded from sentencing decisionmaking, even if they are logically relevant? What process and burden of proof should apply to such fact-finding?

The United States Sentencing Commission adopted a radical policy that requires judges to consider, in a mechanistic way, a great deal of real-offense sentencing information. This policy helped make the Federal Sentencing Guidelines overly rigid and complex and contributed directly to the Supreme Court's decision in United States v. Booker (1) to invalidate the mandatory nature of the current Federal Sentencing Guidelines. As Congress and the Sentencing Commission consider the appropriate response to Booker, they should dramatically scale back this disastrous approach to real-offense sentencing. Fortunately, good models exist in a number of states with more successful sentencing guidelines.

1. WHAT IS REAL-OFFENSE SENTENCING?

   Real-offense sentencing is easier to discuss than to define. (2) In some ways, it is easier to identify what real-offense sentencing is not. It is not its polar opposite: charge-offense sentencing. Pure charge-offense sentencing involves setting a sentence or sentencing range based entirely on the statute of conviction. The consideration of any facts beyond the elements of the offense introduces "real-offense" elements. I will use the term in this broad sense: real-offense sentencing is the use in sentencing of any facts beyond those necessarily found by a jury in reaching a guilty verdict or admitted by a defendant as part of a guilty plea. Real-offense sentencing information can concern the offense or the offender. It can relate to the harm caused by the offense, the defendant's culpability, or background information about the offender.

   The principal reason generally cited for employing real-offense sentencing information is that the facts necessary for conviction are generally quite limited. Even in jurisdictions with well-developed criminal codes, criminal statutes tend to be broad in scope. Two defendants convicted of violating the same criminal statute may present vastly different situations. Whether a sentencing decision is being based on retributive or utilitarian purposes, more information than that which is provided in the statute of conviction may be needed. If one is interested in how much harm was caused by a robbery, for example, it is important to know how much money was taken, whether a weapon was used, whether injury was inflicted, etc. In assessing the offender's culpability, whether the offender was a leader in the criminal activity or played a very minor role can be a critical distinction. To determine the offender's amenability to treatment or future dangerousness, much personal information is needed, including prior criminal offenses, employment or educational history, and family and community ties. Few if any of these facts are likely to be part of the definition of the offense for which the defendant was convicted. If they are to be considered, then, it must be through fact-finding at the sentencing stage.

   Defined in this manner, real-offense sentencing information is potentially limitless. No sentencing process, of course, will inquire endlessly into facts about the offense and offender. First, as noted above, the purposes of punishment that are emphasized by a particular sentencing regime impact the relevance of potential real-offense sentencing information. Pragmatic considerations require that sentencing fact-finding not be unduly time consuming or complicated. Considerations of fairness may argue for limiting the impact of facts not proved to a jury or admitted by the defendant. No system, then, is likely to approach a "pure" real-offense model. The important questions are who decides which real-offense elements are incorporated into sentencing decisions, by what fact-finding process, and with what weight?

   The proper approach to real-offense sentencing cannot be determined in a vacuum. Whether particular information should help determine a sentence depends upon the goals the sentencer is pursuing. An individual judge or a sentencing commission aiming for deterrence or incapacitation will be interested in different information than a sentencer focusing on just deserts. In addition, these questions look different when addressed to a traditional sentencing system marked by broad...