Sentencing Reform Act

The Sentencing Reform Act was passed with overwhelming support in Congress in 1984. The Act’s purpose was to address the appearance (and may be reality) of unwarranted disparity in federal sentences. The Act was supported by politicians on both the left and right of the political spectrum. The former felt that treating similar defendants differently in the courts was simply unjustified; some means had to be found to regularize sentences, to treat defendants with similar backgrounds who committed comparable crimes in a consistent fashion. Proponents on the right of the political spectrum felt that reform of Sentencing would lead to tougher penalties and would preclude the kinds of lenient sentences these advocates felt judges often meted out.

To achieve the goal of reducing unwarranted disparity in Sentencing, the Sentencing Reform Act created the Sentencing Commission whose membership included both judicial and lay individuals. The Commission in turn promulgated Federal Sentencing Guidelines that became the required handbook for all Federal Sentencing after November 1987. The Guidelines were essentially a 2
2 grid, with offender characteristics on one side and offense characteristics on the other. All crimes were said to fall within one of the resultant boxes, and judges were to sentence within the range (25 percent) of sentences indicated in the box. Several other factors are important to note about this Sentencing process. First, judges were expected to increase or decrease a sentence after a jury verdict on a particular charge depending on certain factual matters (for example, the amount of drugs involved in a drug sale). This was to be done after a factual hearing in which the standard of proof was preponderance of the evidence (not the ‘‘beyond a reasonable doubt’’ standard the jury with which the jury was charged). Second, although in principle judges could depart from these Guidelines, the variables that justified these departures were few. If the Commission was said to have considered the variable in its deliberations— and indicated that it was not a ground for departure—the judge could not substitute his or her judgment for the Commission’s. Third, if the defense or prosecution opted for an appeal of a sentence outside the Guidelines, it was now permissible to do so. Appellate review of sentences before Sentencing Reform Act was limited mostly to Sentencing ‘‘abuse of discretion,’’ a stringent standard rarely successfully used to overturn a sentence.

Since its implementation, the Guidelines have received mixed reviews. In their favor, they removed some of the difficulty in Sentencing for judges. This is to say, judges who agonized over Sentencing choices may have welcomed the mechanical nature of Sentencing the Guidelines could offer. It could make a judge’s job easier. On the other hand, many criticisms of the Guidelines also surfaced. Judges felt like robots under the Guidelines, simply applying the increasingly complex adding and subtracting that the Guideline grids, and their accompanying rules, dictated. This was particularly difficult for some judges in ‘‘equity cases’’ wherein the judge felt the Guideline sentence was unfairly harsh and yet felt unable to mitigate the required sentence. Finally, judges, and many others, criticized the failure of the Guidelines to actually reduce disparity in sentences, the original animating purpose of the Sentencing Reform Act. Although the Guidelines hamstrung judges, critics noted, they did not appreciably restrict prosecutorial discretion As a consequence, the power of the U.S. attorneys increased under the Guidelines, and their plea bargaining practices resulted in the very kind of disparity the Guideline’s aimed to reduce.

In January 2005, in U.S. v. Booker and U.S. v. Fanfan, a divided U.S. Supreme Court required that the major product of the Sentencing Reform Act—the Federal Sentencing Guidelines—needed to be substantially changed. Instead of mandating that judges opt for a particular box in the Sentencing grid and then adjust the prescribed sentence depending on specific facts of the offense (facts established by the judge after the jury’s decision on guilt on a particular charge), the Guidelines should merely be advisory to the Sentencing judge. The judge should preserve the discretion to sentence anywhere within the statutory range for a particular jury conviction. Whether in the future this will lead prosecutors to ask the jury to decide on additional factors (and thus limit a judge’s range), or whether in the case of pleas, defendants are expected to stipulate to certain Sentencing facts, remains to be seen. Also, and most important, is the matter of whether increased judicial discretion will lead to the kind of ‘‘unwarranted Sentencing disparity’’ that gave birth to the Guidelines initially.

MILTON HEUMANN

References and Further Reading

• Freed, Daniel, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, The Yale Law Journal 101 (1992): 8: 1681–1754.
• Heumann, Milton, Empirical Questions and Data Sources: Guideline and Sentencing Research in the Federal System, Federal Sentencing Reporter 6 (1993): 15–18.
• Stith, Kate, and Jose Cabranes. Fear of Judging. Chicago: University of Chicago Press, 1998.
• Tonry, Michael. Sentencing Matters. New York: Oxford University Press, 1996.

Cases and Statutes Cited

• Blakely v. Washington, 542 U.S. (2004), 124 S. Ct. 2531 (2004)
• United States v. Booker, No. 04-105, January 12, 2005, 125 S. Ct.739 (2005)
• United States v. Fanfan, (decided together with Booker)

See also Guilty Plea; Jury Trial; Jury Trial Right; Mandatory Minimum Sentences; Sentencing Guidelines