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Federal Sentencing Guidelines Revisited Stephen Breyer, Associate Justice, Supreme Court of the United tates University of Nebraska College of Law Roman L. Hruska Institute Lincoln, Nebraska November 18, 1998

Thank you for the invitation to speak here in Nebraska at your program on the Federal Criminal Sentencing Guidelines.

I shall talk today about the Guidelines' history. I worked for the Senate Judiciary Committee when Congress considered sentencing reform. And I was a member of the original Sentencing Commission, from 1985 to 1989, when Judge Billy Wilkins was the Chairman. Speaking from that perspective, I shall remind you of the Guidelines' original purposes, discuss the most difficult problems that we, the original Commission, sought to resolve, refer briefly to at least one important contemporary criticism, and make several recommendations intended to provoke further discussion.

I. Original Purpose

The Guidelines sought greater fairness and honesty in sentencing. In seeking "greater fairness," Congress, acting in bipartisan fashion, intended to respond to complaints of unreasonable disparity in sentencing--that is, complaints that differences among sentences reflected not simply different offense conduct or different offender history, but the fact that different judges imposed the sentences. Congress acted with the support of Senators of both parties, including Senator McClellan and Senator Hruska, who I am pleased, is here today.

Congress recognized that the personality of a judge mattered in a criminal case. Both bar and bench, after all, advocated the random selection of judges in criminal cases. Studies indicated that a defendant sentenced by a Southern judge was likely to serve six months more than the average, while a defendant sentenced in Central California was likely to serve twelve moths less. Female bank robbers would likely serve six months less than men, and black bank robbery defendants convicted in the South were likely to be imprisoned an additional thirteen months.

In a well-known 1974 Second Circuit "experiment," fifty district court judges each sentenced twenty offenders on the basis of the same set of pre-sentence reports. And the results diverged dramatically. Where one judge sentenced a defendant to three years, another judge chose twenty years; where one imposed a suspended sentence for an immigration crime, another imposed a three-year prison term. The Department of Justice, later repeating the experiment with 208 federal judges, found them unanimous about whether to impose a prison term in only three of 16 hypothetical cases. It also found serious disparity as to length. For example, while the judges sentencing one particular hypothetical fraud defendant imposed a 1.1-1year prison term on average, one judge gave that same defendant 15 years.

To reduce this kind of unfair disparity, Congress created a sentencing system that was to categorize offenders through the use of "offense" and "offender" characteristics, attaching to each combined offense-offender category a Guideline sentencing range. If prison time was at issue, the top of the sentencing range could exceed the bottom by no more than 25%. The statute required a sentencing judge to impose the category's sentence in any typical case. But it permitted the judge to depart in any unusual cases long as the judge explained in writing why the case was unusual, thus preserving an important component of the district courts' traditional sentencing discretion, as the Supreme Court recently recognized in Koon v. United States. At the same time, the statute did authorize appellate review of sentences, thereby hoping to create a "common law" of sentencing. The statute set forth a general outline of this system. It also created the seven-member United States Sentencing Commission to fill in the details.

Congress's second objective was greater honesty in sentencing. Under previous law the Parole Commission determined (within broad limits) how much time an offender would actually serve. A judge might sentence an offender to twelve years, but the Parole Commission might release the offender after four. No one--not offender, judge or public--could say in advance what a twelve-year sentence really meant. And the consequence was gamesmanship and cynicism.

Congress's solution was to abolish parole. With minor exceptions, the time the judge imposed would now be the time the offender would serve. Sentence lengths, of course, were to be adjusted to accommodate this change in parole practice. The result is a sentencing system that is transparent, more candid, than before.

Both Congress and the Commission understood that the statutory objectives were greater fairness and greater honesty, not perfect fairness or perfect transparency. Congress and the Commission hoped to set in motion a system that, through trial and error, could gradually work toward these important goals.

[In part II of his speech, Justice Breyer discusses the history of the development of the Sentencing Guidelines and the Sentencing Commission's rationale in creating a system through which sentences depend on the particular offense but take into consideration both characteristics of the defendant and the way in which the offense was committed.]

III. Current Criticism

This brief history may help shed light on a few of the current criticisms made of the Guidelines. Critics often say, for example, that the Guidelines have shifted power to the prosecutors. I have heard this claim so often that I am prepared to believe there must be some truth in it. But I would still ask the critics to determine exactly in what ways that is so.

The Guidelines, after all, have shifted the power to determine sentences away from prosecutors in at least some ways. Prosecutors should find it more difficult than under pre-Guideline practice to control the sentence by manipulating the charge, for, within broad limits, the offender's actual conduct, not the charge, will determine the sentence. For this same reason plea bargaining over charges should have diminished, because, again within broad limits, a defendant's promise to plead guilty to a particular, perhaps less serious, charge likely will not affect the sentence. Nor can the prosecutor simply urge the judge to overlook certain aspects of the offender's conduct. The process is transparent; that conduct will appear in the pre-sentence report and the judge must use it for sentencing.

This is not to deny the prosecutor's considerable bargaining power. The prosecutor still may choose to charge an offense that carries a lower statutory maximum penalty (and statutory maximum penalties trump the Guidelines). He may enter into a plea agreement for a fixed sentence, an agreement that will carry significant weight with the judge. He can simply ignore certain conduct, believing that the probation officer will not discover it. And he can ask the judge to depart from a Guideline sentence. But the prosecutor possessed all these powers before the Guidelines as well--and to a greater extent. In principle, the Guidelines have not increased the prosecutor's powers in these respects--though there are those who believe that a perception of unfairness in some Guideline sentences has made prosecutors more willing to exercise these "conduct-hiding" powers in practice.

I recognize, however, other sources of special prosecutor power. Upon recommendation of the prosecutor, a court may depart downward from a Guideline sentence, and below even a statutory mandatory minimum, where there is "substantial assistance in the investigation or prosecution of another person who has committed an offense." U.S.S.G. §5k1.1. Moreover, statutory mandatory minimum sentences and Guideline sentences written to reflect those mandatory minimums--particularly in respect to drug crimes--may increase the pressure upon a defendant to provide "substantial assistance" in order to obtain a downward departure, or to plead guilty to an offense with a low statutory maximum (e.g., simple possessions).

Both factors--"substantial assistance" and "mandatory minimums"--rest upon special provisions in the Guideline statute. Moreover, those two factors play a particularly important role in federal drug prosecutions, which account for about 40% of all federal sentencing. Viewed in light of Guideline history, however, these two special "power-shifting" factors are nonessential, peripheral features of the Guidelines. And, for that reason, I believe it promotes accuracy in analysis, and leads to more constructive recommendations, to point to these two special statutory provisions, rather than the Guidelines themselves, as having increased prosecutorial power.

I recognize that greater certainty in sentencing may have led prosecutors to want to bargain less while defendants want to bargain for more. But this is a matter of perception. I leave for general discussion the question whether the Guidelines have actually increased the power of prosecutors in other ways.

Critics often complain about the Guidelines' definition of "relevant conduct." The current broad definition, it is said, means that an offender may receive extra years in prison on the basis of facts that may not be closely related to the crime of which he was convicted. Moreover, those facts will be found, not by a jury, but by a judge and by a "preponderance of the evidence" at a sentencing hearing.

Here too Guideline history can help illuminate the argument. That history shows that, before the Guidelines, judges, typically using many of the same factors, would increase or diminish the length of sentences with still fewer procedural protections. Judges sentenced on the basis of uncharged conduct all the time; it was an approved practice. Although a defendant had the right to contest any statement of fact contained in a pre-sentence report, few offenders would insist upon formal fact-finding procedures. One simply could not say which facts of those contained in the pre-sentence report had made a difference in respect to the judge's ultimate sentence. Compared to the pre- Guidelines "black box," the present procedural system must be an improvement.

...

A final important criticism that I wish to mention is that the Guidelines are simply too long and too complicated. There are too many words, too many provisions, too many distinctions. I recognize that the Commission has been engaged in a simplification effort. Yet I do believe that considerable further simplification is possible. I shall return to this subject in the form of a recommendation.

IV. Suggestions

As my last comment suggests, I recognize that the Guideline system is far from perfect. You are evaluating that system and considering changes. I should like to propose three general suggestions for discussion.

The first suggestion seems addressed to Congress, but it is really addressed to the criminal law enforcement community, which, in turn, helps Congress to understand what kinds of laws are effective. The suggestion is to remove mandatory minimum sentences from statutes setting forth specific crimes. Mandatory minimums, once rare in the criminal law, have grown in popularity. By 1991 Congress had created nearly 100 separate mandatory minimum provisions, located in about 60 different criminal statutes, including gun and drug statutes, which together account for about 44% of all Guideline cases. But it is difficult to find good reasons for that popularity.

The Commission, from the beginning, has strongly opposed mandatory minimums. My colleague, Justice Kennedy, along with most judges in the federal system, believes that mandatory minimums are "imprudent, unwise, and often an unjust mechanism for sentencing." The Chief Justice of the United States has said that mandatory minimums are generally not the product of careful deliberation:

Mandatory minimums...are frequently the result of floor amendments to demonstrate emphatically that legislators want to "get tough on crime." Just as frequently they do not involve any careful consideration of the effect they might have on the Sentencing Guidelines as a whole. Indeed, it seems to me that one of the best arguments against any more mandatory minimums, and perhaps against some of those that we already have, is that they frustrate the careful calibration of sentences, from one end of the spectrum to the other, which the Sentencing Guidelines were intended to accomplish.

I agree with these criticisms and would add others.

For one thing, statutory mandatory sentences prevent the Commission from carrying out it basic, congressionally mandated task: the development, in part through research, of a rational, coherent set of punishments. Mandatory minimums will sometimes make it impossible for the Commission to adjust sentences in light of factors that its research shows to be directly relevant, such as the amount of drug involved in a crime. They will sometimes prevent the application of Guidelines that would reduce a sentence in light of, for example, a minimal role in a drug offense, thereby sentencing similarly offenders who are very different, perhaps like a drug lord and a mule. Most seriously, they skew the entire set of criminal punishments, for Congress rarely considers more than the criminal behavior directly at issue when it writes these provisions, and their existence then prevents the Commission from taking into account other sentences for related crimes when it seeks, for that behavior, to write a sentence that makes sense.

Moreover, mandatory minimums carry with them many of the problems of a "pure charge" system. As I have pointed out, they may permit the prosecutor, not the judge, to select the sentence by choosing (say, in respect to less serious criminal conduct) to charge, or not to charge, a violation of a statute that carries a mandatory prison term.

At the same time, there is little evidence that mandatory minimums accomplish their goal of assuring lengthy and uniform prison sentences. To the contrary, a 1991 Commission study indicates that in nearly 40% of the cases involving conduct to which a mandatory minimum attached, the offender received a sentence lower than the minimum, perhaps because the prosecutor charged a different crime or because the prosecutor agreed to a "substantial assistance" departure. In fact, mandatory minimum defendants received downward departures 21.6% of the time, compared to a 14.4% downward departure rate for the general offender population.

These figures may represent the criminal justice system reacting sub rosa to instances in which it perceives a mandatory minimum as unfair. Every system, after all, needs some kind of escape value for unusual cases. No system could tolerate efforts to sentence someone like my low-I.Q. bank robber to a lengthy prison term. But mandatory minimum sentencing, unlike a Guideline-with-departure sentencing system, drives any such reactions underground. Neither judge nor prosecutor can explain as a reason for departure what is likely to be the true reason; rather, the departure must rest on other factors that may be present only randomly in particular cases. And the consequence of turning to these other factors to do the work of what under the Guideline would be a "departure," justified in writing, may be not only random departures but also more departures (and lower sentences) than there would be had the Guideline-with-departure sentencing system itself applied. For this reason, the Guideline system is a stronger, more effective sentencing system in practice.

In sum, Congress, in simultaneously requiring Guideline sentencing and mandatory minimum sentencing, is riding two different horses. And those horses, in terms of coherence, fairness, and effectiveness, are traveling in opposite directions. In 1994 Congress enacted a "safety-valve" permitting relief from mandatory minimums for certain non-violent, first-time drug offenders. This, in my view, is a small, tentative step in the right direction. A more complete solution would be to abolish mandatory minimums altogether.

My second suggestion is addressed to the Department of Justice. It is that the Department make the Guidelines a high institutional priority. ...

Ultimately, given the controversies that surround sentencing, the Guidelines cannot succeed without strong leadership from the Department, acting, not in its role as federal prosecutor, but as a national "Ministry of Justice," The Department can both undertake and encourage empirical research that sees sentencing as an increasingly important part of the entire criminal justice system. It can work for Guideline improvements. It can help obtain necessary legislative support for the Commission's work. And it can help to select Commissioners who are committed to the same. There are now seven Commission vacancies--an unfortunate fact that quite obviously prevents the Commission from carrying out its mandated responsibilities.

Our criminal justice system properly devotes much time and attention to the basic question, "Did this person commit an offense?" It has paid comparatively little attention to the question, "What should we do with a person found to have done so?" By opening up what was previously called a "black box" of sentencing, the Guidelines call attention to this latter problem. I believe that problem warrants the relatively high Departmental priority for which I have argued.

My third suggestion is addressed to the Commission. It concerns Guideline complexity and judicial sentencing discretion. The original 1987 Guidelines draft was just over 200 pages long, and many criticized that draft as too lengthy and too complex. The Guidelines are now twice as long. Can they be simplified?

The greatest obstacle to doing so is, I believe, the legal mind itself. We judges and lawyers love to make distinctions. For sentencing purposes, distinctions about how a crime was carried out are important in order to assure sentencing proportionality--a principle of fairness that insists upon treating different offenders differently. And the Guidelines should contain at least a few such distinctions--in the form of offense characteristics that can enhance, or diminish, the base offense level. But it is important to know when to stop.

We were able to write the initial draft in part because Commissioner Michael Block--an economist, not a lawyer--pointed out the importance of thinking crudely about punishment. Punishment is a blunderbuss. We do not know its precise effects, nor can the criminal justice system tell us much (beyond fairly obvious differences) about the true comparative "just desserts" of any two offenders--even in respect to the crimes they have committed. There is little, if anything, to be gained in terms of punishment's classical objectives by trying to use highly detailed offense characteristics to distinguish finely among similar offenders. And there is much to be lost, both in terms of Guideline workability and even in terms of fairness (recall the Guidelines' logarithmic numerical scales). Ranking offenders through the use of fine distinctions is like ranking colleges or the "liveableness" of cities with numerical scores that reach ten places past a decimal point. The precision is false.

For this reason, I believe the Commission should review the present Guidelines, acting forcefully to diminish significantly the number of offense characteristics attached to individual crimes. The characteristics that remain should be justified for the most part by data that shows their use by practicing judges to change sentences, through departures if necessary. ...

V. Conclusion

As you can see, despite the criticism of the Guidelines, and even recognizing the bias that might arise from my own participation in the creation of the Guidelines, I remain cautiously optimistic about their future. They have opened up the "black box" of sentencing. They have begun to lead broader segments of the legal community to focus upon the question of punishment. They have helped to diminish disparity in sentencing. And most importantly, they have begun to put in place a system for sentencing research that, in principle, can transmit to sentencing policy makers the results of judicial sentencing experience in the field. For all these reasons, I would not recommend a return to pre-Guidelines practice. I do believe it important, however, to focus upon areas where change is desirable and possible. Discussion of suggestions for improvement, whether my own suggestions or those of others, is necessary, and I am pleased to be at this Institute today where that discussion is taking place.

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