Vol. 10, No. 5, Pg. 20. Obstruction of Justice Enhancement: Do the Sentencing Guidelines Present an Ethical Dilemma for the Criminal Practitioner?.

• Author: By Russell D. Ghent, William Mayer and Kelli M. Hamby

South Carolina Lawyer

1999.

Vol. 10, No. 5, Pg. 20.

Obstruction of Justice Enhancement: Do the Sentencing Guidelines Present an Ethical Dilemma for the Criminal Practitioner?

20OBSTRUCTION OF JUSTICE ENHANCEMENT: Do the Sentencing Guidelines Present an Ethical Dilemma for the Criminal Practitioner?By Russell D. Ghent, William Mayer and Kelli M. HambyThe process of crafting the Federal Sentencing Guidelines did not take place on a blank slate. The U.S. Sentencing Commission sought and received extensive public comment from prosecutors, defense attorneys, district judges, probation officers and numerous interested parties, as well as experts on sentencing and punishment. By using empirical data, the Commission discovered trends in sentencing practices that existed prior to the guidelines, but did not consider itself bound by what those practices revealed.

In some instances, the Commission was guided by specific statutory mandates under the Sentencing Reform Act of 1984, in others by previous decisions of the appellate courts, although sentencing case law was significantly limited prior to the creation of the guidelines.

22This reflected the previously unfettered and unstructured discretion that trial judges had once enjoyed in sentencing federal defendants. One case in particular, U.S. v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, L.Ed.2d 582 (1978), presented a specific criterion for enhancement of a sentence that was essentially "codified" by the Commission in its initial set of guidelines and remains a part of the guidelines in their current version.

In Grayson, the Supreme Court held that a district court may enhance the sentence of an offender based on a finding subsequent to conviction that the defendant committed perjury in trial of the case. The Grayson case is rooted in an intuitive concept that the purpose of a criminal trial should be disposition of the charges against the defendant in line with the truth. The numerous perjury and false swearing statutes that are found in state codes and in the federal criminal code lend further support to the decision in Grayson.

Furthermore, it is not uncommon for a prosecutor, even where a defendant's story is flagrantly misleading or false, to choose not to pursue further prosecution for perjury, but rather to argue to the court that the conduct of the defendant in his or her trial itself warrants enhancement in sentencing. The rationale of such an enhancement, at least in theory, spares the court further time spent in...