The federal sentencing guidelines and the pursuit of fair and just sentences.

• Author: Cappellino, Anjelica
• Position: I. Introduction: Federal Sentencing and the Current State of Federal Incarceration through III. The United States Sentencing Guidelines: The Mechanics of Sentencing & Mitigating Factors to Consider, p. 771-800 - Miscarriages of Justice

1. INTRODUCTION: FEDERAL SENTENCING AND THE CURRENT STATE OF FEDERAL INCARCERATION

   The federal prison system has become an increasingly populated place. With an approximate 91% conviction rate in the federal criminal system, (1) with 97% of all cases entering a plea of guilty prior to trial, (2) and over 90% of those convictions resulting in a sentence of incarceration, (3) imprisonment is a nearly unavoidable part of a criminal defendant's experience in the federal system.

   According to statistics by the Federal Bureau of Prisons, the law enforcement agency responsible for the administration of federal prisons, there are a total of 217,180 federal inmates incarcerated in the United States. (4) This number has drastically increased over the past three decades; the federal prison population was approximately 25,000 in 1980. (5) Of those incarcerated, approximately 28.8% are serving sentences from five to ten years, the most prevalent sentencing range, (6) while 13.3% are serving over twenty years or life sentences. (7)

   Since the early 1980s, due to changes in federal sentencing and criminal justice policies, including the imposition of mandatory minimum sentences for drug offenses, there has been a rapid and unprecedented growth in the federal prison population. (8) And while the United States state prison population has seen slight decreases in the last several years, (9) it has also followed the federal prisons' trend of massive growth over the past several decades. (10) Consequently, the United States has the largest incarceration rate in the world, (11) reaching a total of approximately 2.2 million inmates. (12)

   Federal prison population growth is, in no small part, due to mandatory minimum penalties for drug offenses, which have increased in number and have been charged more frequently over the past twenty years. (13) Drug offenses are the most common; nearly half of the entire federal prison population is serving time for drug-related crimes, (14) and over 96% of defendants sentenced for drug trafficking crimes receive a sentence of incarceration. (15) In comparison, violent offenses compose less than 5% of federal inmate convictions. (16) As the numbers of federal inmates rise, so does the Bureau of Prisons' budget. The Bureau of Prisons' budget request for the fiscal year 2012 totaled approximately $6.8 billion, a 10.3% increase from last fiscal year. (17)

   Since the rates of conviction and incarceration in the federal system continue to rise, understanding the factors that determine a defendant's sentence is a crucial component in a criminal defense attorney's overall case strategy. While for the majority of United States history federal sentencing remained largely unregulated and indeterminate, the Sentencing Reform Act of 1984, (18) its establishment of the United States Sentencing Commission, and its creation of the United States Sentencing Guidelines (the Guidelines), sought to make federal sentencing more uniform and predictable. The Guidelines, which mandated a certain sentencing range dependent upon a defendant's offense and past criminal history, among other things, placed a considerable restraint on matters that had previously been almost entirely entrusted to individual judges' discretion.

   However, in United States v. Booker, (19) the Supreme Court held that the federal sentencing Guidelines were "effectively advisory," not mandatory. (20) Since Booker and its progeny, the Guidelines and the sentencing practices of the district courts have become more discretionary by allowing judges to take into consideration the individualized characteristics of the defendant and the offense.

   In contrast to the advisory nature of the Guidelines, mandatory minimum penalties for drug offenses, a product of America's ongoing "War on Drugs," constrain judicial discretion and limit individualized consideration of the defendant by mandating sentences based on drug type and quantity. (21) The seemingly incongruent relationship between the Guidelines and mandatory minimum penalties for drug offenses makes sentencing all the more complicated. This complexity, coupled with the high federal incarceration rate and the probability that most federal defendants will, indeed, serve prison time, makes sentencing arguably one of the most important, if not the most important, part of a defendant's case.

   This article analyzes the questions and considerations surrounding the post-Booker Guidelines from the perspective of the criminal defense attorney, with particular emphasis on the Guidelines' relationship to mandatory minimum drug laws. Part II considers the history of federal sentencing prior to and after the enactment of the Guidelines, as well as the impact United States v. Booker had on judicial sentencing discretion. Part III examines the mechanics of the Guidelines and the various mitigating factors that defense attorneys often raise in their arguments for lower sentences. Part IV discusses mandatory minimum drug offenses and their often conflicting relationship to the Guidelines' enumerated purposes. Part V considers the future of the Guidelines and mandatory minimum drug offenses, particularly in light of recent developments and public policy arguments advanced by the Department of Justice. Throughout the article, we have incorporated the opinions and experiences of prominent criminal defense attorneys and their reflections on the current state of federal sentencing.

2. THE HISTORY OF FEDERAL SENTENCING & THE EVOLUTION OF THE FEDERAL SENTENCING GUIDELINES

   1. The History of Broad Sentencing Discretion, Pre-Sentencing Reform Act

      Sentencing reform in the federal system has long been a topic of debate. For the majority of United States history, federal sentencing was largely indeterminate. (22) Federal criminal statutes offered little guidance since many stated only a maximum term of imprisonment. (23) Federal judges had wide, unfettered discretion in imposing sentences, bound only by the statutory maximum. Some judges started at the lower statutory range and adjusted upward depending on the severity of the crime, while other judges would impose the maximum sentence allowable and discount for mitigating circumstances. (24) Furthermore, "there was virtually no appellate review of the trial judge's exercise of sentencing discretion." (25) This combination of factors resulted in sentences that were disparate and uncertain to predict.

      The indeterminacy of sentencing was also a product of an ideological shift in the Court's treatment of offenders. By the beginning of the twentieth century, individualized rehabilitation was viewed as more important than fixed punishment. The Court took on a more proactive approach in determining a sentence with any and all information available. As stated by the Supreme Court in Williams v. New York, (26) "modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial." (27)

      The advent of federal parole in 1910 further broadened an offender's sentencing possibilities. (28) The parole board was responsible for determining the actual release date of federal inmates. (29) Most inmates were not eligible for parole until they had served one-third of their sentences, although an alternative statutory provision permitted the sentencing judge the authority to grant a defendant's immediate eligibility for parole. (30) "Under the rehabilitative model, parole officials' power to determine a sentence's duration was seen both as a valuable incentive to prison inmates to rehabilitate themselves and as a vehicle to permit 'experts' to determine when sufficient rehabilitation had occurred to warrant release from prison." (31)

      By the 1950s, however, critics of indeterminate sentencing existed on both ends of the political spectrum. (32) Liberal reformers argued that indeterminate sentencing was unsuccessful in terms of rehabilitation, created anxiety and uncertainty among prisoners due to disparities in sentences for the same crimes, and was "fundamentally at odds with ideals of equality and the rule of the law." (33) "Meanwhile, critics from the political right expressed dissatisfaction with the perceived leniency of sentencing judges and parole officials." (34)

      One of the most influential critics of federal sentencing at this time was a federal district court judge in the Southern District of New York and former Columbia law professor, Marvin Frankel. (35) In 1972, Judge Frankel published his book. Criminal Sentences: Law Without Order, (36) and an article, Lawlessness in Sentencing, (37) in which he argued that "the almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law." (38) Judge Frankel "criticized sentencing institutes, the shortcomings of judicial selection and education, parole, and indeterminate sentencing." (39) Judge Frankel proposed reforms included "the creation of an administrative agency, a 'Commission on Sentencing,' with 'the function of actually enacting rules . . . [and] making law' in the form of 'binding guides' on sentencing courts." (40) Throughout the next decade, "Judge Frankel's work remained the cornerstone of the legislative effort to replace judicial discretion in criminal sentencing with certainty and administrative expertise." (41)

      In 1975, Senator Edward M. Kennedy decided to sponsor sentencing reform legislation after hosting a dinner party for Judge Frankel and other scholars in the field. (42) Around the same time period, "members of the Yale sentencing seminar completed a manuscript on judicial sentencing disparity that contained a detailed proposal for the establishment of a sentencing commission empowered to promulgate sentencing...