Sentencing reform lessons: from the Sentencing Reform Act of 1984 to the Feeney Amendment.

• Author: Howell, Robert

1. INTRODUCTION

   For more than two decades, Congress has been on a mission to obtain uniformity in the federal sentencing system. What began with the Sentencing Reform Act of 1984 ("SRA"), and was soon followed by the Sentencing Guidelines, has been continually criticized by both the judiciary and the legislature. (1) In the spring of 2003, in what caught many interested parties off guard, Congress abruptly responded to the perceived inadequacies of the federal sentencing system by enacting the Feeney Amendment to the PROTECT Act ("The Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003"), signed into law by President Bush on April 30, 2003. (2) The Act implemented sweeping reforms focused on eliminating trial judges' discretion to deviate from congressionally mandated sentences. (3)

   The goal and structure of the SRA was to achieve uniformity in federal sentencing. (4) However, the PROTECT Act was enacted as a response to growing congressional sentiment in opposition to the post-SRA sentencing system. This sentiment was based on anecdotal case evidence of post-SRA sentencing disparity, political pressure to be tough on crime, and analyses of sentencing statistics. (5) Disparity and inequality in sentencing was often blamed on trial judges since they hold the ultimate authority to determine each defendant's sentence. (6) Thus, disparity amongst different defendants' sentences for similar crimes was perceived as resulting from judicial leniency. (7) Congress accumulated information suggesting that judges--particularly at the trial level--were not consistently following the congressionally mandated sentencing ranges; Congress reacted by instituting substantial changes to the sentencing structure through the PROTECT Act aimed at compelling uniformity. (8)

   The PROTECT Act creates substantial debate as to whether unwarranted disparity existed in the federal sentencing system, whether the reforms will prove effective, and whether the reforms themselves will create new problems of greater magnitude in the sentencing system. While all of these questions raise very serious concerns regarding the PROTECT Act reforms, it is equally important to fully understand how and why the PROTECT Act became law and what, if anything, could have been done to prevent it. The SRA removed most sentencing discretion from trial judges. (9) The PROTECT Act took another giant step by effectively removing what little discretion remained. It also served to greatly marginalize the judiciary's input into federal sentencing policymaking. Therefore, without a firm understanding as to why Congress felt compelled to reinforce and expand upon the SRA via the PROTECT Act, the judiciary faces the possibility of losing what scraps of sentencing discretion and policy input still remain.

2. THE SENTENCING REFORM ACT OF 1984

   The United States Constitution does not explicitly assign exclusive jurisdiction for federal sentencing to any one of the three branches of government. (10) The Legislative Branch has the power to define federal crimes and establishes the method and degree of punishment. (11) The Judicial Branch tries offenses and imposes punishments within the limits set by the legislature. (12) Finally the Executive Branch determines "where offenders will serve their time ... and supervise[s] them upon their release." (13)

   For almost a century, Congress maintained a minor and indirect role in federal sentencing. (14) Congress delegated virtually "unfettered discretion to the sentencing judge to determine what the sentence should be" within a typically wide range of potential sentences as prescribed by statute. (15) Therefore, the judge controlled the "various goals of sentencing, the relevant aggravating and mitigating circumstances, and the way in which these factors would be combined in determining a specific sentence." (16) Judicial sentences which fell within the prescribed range "were virtually unreviewable on appeal." (17) The overarching rationale of the sentencing system was predicated on "coercive rehabilitation." (18) Therefore, sentences were based on the judge ordering a long sentence and the parole board granting release based on sufficient rehabilitation. (19)

   By the 1970s, "there was a broad and rising level of concern in the Congress ... regarding the pervasive, serious problems of sentencing disparity." (20) In 1984, after evaluating the sentencing system, "Congress concluded that the entire system was outmoded and in need of reform." (21) Congress determined that the "system lacked the certainty necessary to inspire public confidence" and therefore could not appropriately serve as a deterrent to crime. (22) The sentencing system's deficiencies were deemed the direct result of unwarranted disparity and inconsistency in sentencing application by the judiciary. (23) Congress sought to reduce this wide sentencing disparity by enacting the Sentencing Reform Act of 1984. (24)

   The SRA introduced a new comprehensive scheme for structuring judicial sentencing discretion that drastically altered sentencing in the federal criminal justice system. (25) The SRA's principle goal was to eliminate unwarranted sentencing disparity. (26) In doing so, Congress specifically rejected the notion of rehabilitation as a primary sentencing objective. (27) Instead, the SRA stated that punishment should serve retributive, educational, deterrent, and incapacitative goals. (28) The SRA included the following:

   1) A clear, concise statement of the federal law of sentencing, including the kinds and lengths of sentences ... and a statement of permissible sentencing purposes;

   2) A comprehensive set of sentencing guidelines to structure and limit the exercise of judicial sentencing discretion within permissible sentencing ranges, consistent with the authorized sentencing limits and the enunciated sentencing objectives;

   3) An allowance for departures from the sentencing ranges where necessary in atypical cases to ensure fairness;

   4) A requirement that the sentencing judge specifically state on the record the reasons for the sentence imposed and, if the judge [departs] from the guideline range, the reasons for the departure;

   5) An allowance for appellate review of sentences imposed to ensure correctness of guidelines application and reasonableness of departures from the guidelines ranges;

   6) Abolition of parole.... (29)

   1. THE UNITED STATES SENTENCING COMMISSION AND THE SENTENCING GUIDELINES

      One of Congress's most revolutionary remedies to the sentencing disparity problem was its creation of the United States Sentencing Commission (the "Commission"). (30) The Commission is an independent agency within the judicial branch "charged with producing a sentencing guidelines system that would further the [Sentencing Reform Act's] objectives by curtailing unwarranted sentencing disparity, ensuring certainty, and providing just punishment." (31) The Commission consists of seven members and prior to the PROTECT Act included at least three federal judges. (32) The members of the Commission are appointed by the President and confirmed by the Senate. (33) The Commission was charged with drafting sentencing guidelines, which went into effect six months after the SRA was enacted. (34) Since 1987, federal sentencing has been governed by the Federal Sentencing Guidelines, which are annually amended, by the U.S. Sentencing Commission. (35)

      The Federal Sentencing Guidelines were created partly in reaction to a perception that the previous system produced unjustifiable sentencing disparities by giving too much discretion to district judges. (36) The Guideline system sought to constrain judicial sentencing discretion by the use of a grid that set presumptive sentences according to the seriousness of the offense and the defendant's criminal history. (37) The goal behind the Guidelines was to:

      provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account n the establishment of general sentencing practices. (38) However, the architects of the Guidelines recognized that some measure of judicial discretion was necessary, since no set of national rules could prescribe the "correct" sentence for every defendant. (39) Thus, each position on the grid covers a range of sentences, stated in months. (40) The district judge finds the facts necessary to apply the guidelines, but also has the legal power to either sentence the defendant anywhere within the range or to "depart." (41) Departure results in a sentence above or below the guideline range if the judge finds certain aggravating or mitigating factors. (42) Under the Federal Sentencing Guidelines, departures would be relatively rare. The United States Code prescribes:

      [T]he court shall impose a sentence of the kind, and within the range ... unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. (43) In effect, under the SRA, the Guidelines were intended to be mandatory except in significantly atypical cases. (44)

   2. APPELLATE REVIEW AND REPORTING REQUIREMENTS

      Crucial to preventing unwarranted disparity was the SRA's requirement that the sentencing judge who determines that a departure from the guideline range is warranted must provide an explanation for the departure which is subject to a potential appeal. (45) Prior to the SRA, sentencing judges could base their decisions on a wide variety of reasons, or no reason at all. (46) The SRA required that the judge state on the record her reasons for...