SENTENCING REFORM

The first draft of the new determinate sentencing guidelines

has been published and the overwhelming response thus far seems

to be cries of dismay The Sentencing Reform Act of 1984 which

is included in the Comprehensive Crime Control Act of 1984

stipulated the formation of the United States Sentencing Commission

and promulgation of the guidelines Within the Sentencing Reform

Act Public Law 98473 was written sense of the Senate resolu

tion This was not law per se but an expression of the intent

of Congress in passing such major crime reform bill It would

seem this intention was waylaid disregarded or forgotten for

surely it has not resurfaced in the draft off the guidelines The

following is the full text of the Senate resolution as it appears

in the 1986 edition of the Federal Criminal Code and Rules

Sentencing Considerations Prior to Enactment of

Guidelines Section 239 of Pub.L 98-473 TitleII II Oct 12 1984 98 Stat 2039 provided

Since due to an impending crisis in prisonovercrowding available Federal prison space mustbe treated as scarce resource in the sentencingof criminal defendants

Since sentencing decisions should be designedto ensure that prison resources are first andforemost reserved for those violent and seriouscriminal offenders who pose the most dangerousthreat to society

To improve by correction of error or removal of defectsto abolish abuse American Heritage Dictionary

Since in cases of nonviolent and nonseriousoffenders the interests of society as wholeas well as individual victims of crime can

continue to be served through the imposition of

alternative sentences such as restitution and

community service

Since in the two years preceding the enactment of sentencing guidelines Federal sentencing practice should ensure that scarce prisonresources are available to house violent and

serious criminal offenders by the increased useof restitution community service and nonseriousoffenders Now therefore be it

Declared That it is the sense of the Senatethat in the two years preceding the enactmentof the sentencing guidelines Federal judges in

determining the particular sentence to be imposedconsider

the nature and circumstances of the

offense and the history and characteristics of

the defendant

the general appropriateness of imposingsentence other than imprisonment in cases in

which the defendant has not been convicted of

crime of violence or otherwise serious offenseand

the general appropriateness of imposingsentence of imprisonment in cases in which the

defendant has been convicted of crime of

violence or otherwise serious offense

How Sentence Will Be Determined

The draft guidelines outline 12 steps the Court should take in

determining sentence In brief they go something like this

Determine the statute the offender has been

convicted of violating

Statutory Index at the back of the guide

lines then refers the Court to specific

section in the chapter on Offense Conduct

This chapter assigns base offense value

numerical figure to the offense The

Court then adds or subtracts points for

special offense characteristics thus aggra

vating or mitigating the base offense score

Steps and are repeated for each offense

of conviction

Then the Court refers to chapter in the

guidelines which covers applicable adjustments

for Offender Characteristics Points are

added or subtracted to aggravate or mitigate

the base offense score further

When all offenses have been thus scored the

Court totals the offense values

There is an adjustment for PostOffense Conduct

obstruction of justice and perjury acceptance

of responsibility cooperation

There is also an adjustment for Criminal History

The new total is the offenders Sanction Unit

Score

The Court then refers to the Sanction Unit Guide

line Table and sentence is assigned within the

applicable guidelines

In the above steps where the Court is instructed to add or sub

tract points for special Offense Characteristics or Offender Charac

teristics it is clear from reviewing the lists and lists and lists

of aggravating factors and the list of mitigating factors that the

Court is not fond of subtraction

See Sentencing samples p.56f this article

See Offender Characteristics 15 of this article

What Does RealOffense Mean

Although judges would have to consider variety of factors in

sentencing under this proposed modified realoffense approach the

approach itself bears marked resemblance to the working practices

of the Parole Commission Under current law the Parole Commission

can by Preponderance of the Evidence use evidence or indictments

not used at sentencing to aggravate an inmates release date If

this modified realoffense system is adopted defendant indicted

on homicide charges later reduced to manslaughter would essentially

be sentenced under homicide sentencing guidelines nonetheless Thus

judge like the soon to be abolished Parole Commission could

consider factors the defendant thought mooted by agreement to the

negotiated plea Critics of this system point out the obvious

impact this would have on defendants incentive to plea bargain

or cooperate with the Government There will not be much of

bargain in plea bargaining

In its commentary the Commission does point out this and other

concerns involved in realoffense system Without incentives

defendants have nothing to lose and everything to gain by going to

trial Critics suggest that even 10 to 15 percent decline in the

guilty plea rate would require the Courts to double their current

load of trials to maintain the current rate of disposition That is

an alarming thought

The near opposite Of realoffense system charge of convic

tion system is also described in the draft guidelines In charge

of conviction system defendants know what their sentence is likely

to be at the time they plead guilty in plea agreement However

fair sentencing system must take into account at least some of

the real uncharged elements of crime All defendants sentenced

for say tax evasion could not be sentenced identically regardless

of wide variances in the dollars involved in the offense

In conclusion the Commission felt these and other considera

tions pointed to need for modified realoffense structure For

sentencing purposes only those real elements that are importantly

bound up with the conduct that constitutes the crime charged are

to be included The judge uses the guidelines specifically the

special Offense Characteristics listed with each offense and the

list of explicitly crossreferenced aggravating harms and conduct

associated with the particular offense to determine which conduct

should be taken into account Here is how it is explained in the

draft itself

Prior to sentencing an offender convicted of bank robberythe judge will look up bank robbery in the guidelines An

explicit reference to the amount of money stolen and crossreferences to those aggravating physical harms and conductthat typically accompany most bank robberies are given The

judge will not find any reference to conduct e.g drugtrafficking that is unusual in bank robbery The guidelines take account of those harms and conduct that it lists

or crossreferences They do not take account of any otherconduct Such other conduct will affect the sentence onlyif the offender is charged and convicted separately

The following examples demonstrate how modified realoffense sentencing works under the preliminary guidelines

The offense of conviction is distribution of

cocaine Evidence at trial established thatthe offender used twelve-year old child to

transport the drugs

The offense value for distribution of cocaine is

aggravated by the offense value for usingminor child as conduit for distributing drugsThe involvement of the child is related to andis an act done in furtherance of the offense of

conviction

The offense of conviction is distribution ofcocaine After the offenders arrest officersexecute search warrant at the offendersapartment The search reveals no other evidencelinking the offender to other drug transactionsHowever an illegal shortbarreled shotgun isrecovered No indictment or conviction resultsfrom seizure of this weapon at the time of

sentencing

The offense value for the shotgun is not underthese circumstances added to the offense valuefor the drug distribution The possession ofthe shotgun is not related to the offense of

conviction

The offense of conviction is conspiracy to stealand forge one social security check At sentencing the judge finds by preponderance of theevidence that the offender stole forged andcashed 20 checks

All of the offenses related to the 20 checks donein furterance of the conspiracy or that resultedtherefrom are used to calculate the total offensevalue for the conspiracy

The question we still have about this system is will this type

of real but uncharged information still appear in the Government PSI

If the judge supposedly cannot use the information in establishing

the sentence then why should it be in the Government PSI Rule 32

conflicts correction of PSI controversies will continue if this

issue is not resolved prior to finalization of the guidelines

An important related issue concerns sentencing facts When

sentencing fact is disputed the judge is to determine the fact

using Preponderance of the Evidence standard If hearing becomes

6--

necessary the Government will bear the burden of proof for any aggra

vating factors but the defendant and the defense bear the burden

for mitigating factors If Preponderance of the Evidence standard

is to be applied to mitigating factors as well defense would be

less than wise to greet the day of sentencing without having reviewed

the Government PSI and without defense PSI ready in hand to docu

ment preponderance of evidence for any mitigating factors which

could well prove to be time savers for the defendant

The New Guidelines And Sentencing Alternatives

Results from recent study by the Bureau of Justice Statistics

show that the nations state and federal prison population is not

only growing but accelerating at rate of approximately 1000 new

prisoners each week Other statistics from this same source indicate

that Category One offenders make up at least onethird of our prison

population The majority of which are first offenders of non-violent

crimes The sense of the Senate resolution repeatedly emphasizes the

great need to recognize prison space as scarce resource and to

reserve its use for offenders of violent crime who need to be removed

from society for the protection of all The impetus behind the Nunn

Armstrong bill on sentencing reform which led to the Sentencing

Reform Act of 1984 was to stop the useless waste of taxpayer dollars

being spent to keep nondangerous offenders behind bars The pro

posed guidelines do not address the issue of alternatives to lengthy

incarceration If guidelines are not going to be provided to the

Court which recoimnend sentencing options other than incarceration

for first offenders of nonviolent crimes or options to be paired

with shortterm incarceration let the Court request sentencing

alternative plan from the defense This would provide the Court

with focal point from which to work in deciding an appropriate

sentence Unless the guidelines are revised before enactment to

allow wider range of Sanction Units as at least possibly eligible

for alternatives to incarceration this suggestion is close to

pointless

The guidelines table which converts an offenders total Sanction

Units into term of imprisonment does not specifically include any

alternative sentencing options Sanction Units less than 14 result

in term of imprisonment from zero to six months The Court may

added therefore impose sentence other than imprison

ment on offenders whose units total less than 14 Sanction Unit

totals of 14 or more will require added the Court to

impose some term of imprisonment

The tables below are from the new guidelines and will give the

reader some idea of what offenses in terms of monies or drugs

involved would be eligible for sentence other than incarceration

Few Even though some of the tables seem to represent small number

of offenders who might be eligible for alternatives the base score

in the table does not take into consideration the multiple aggrava

ting factors available to the Court which will convert potential

alternative sanction into incarceration In reality there appears

to be no alternative sentencing options available to the majority

who are eligible The number of persons incarcerated right now who

are eligible is phenomenal first time offender of nonviolent

offense with no priors rated above 14 Sanction Units would not be

eligible for an alternative to incarceration as the guidelines now

stand The Commission does include lengthy commentary on severar

proposed methods for converting Sanction Units into terms of impri

sonment as well as into sentences other than imprisonment However

there are no guidelines or even specific suggestions for the Court

on the appropriation of sentences other than incarceration

OFFENSES INVOLVING PROPERTY OFFENSES INVOLVING INCOME TAXES

Monetary Value

Up to $10001001 20002001 50005001 10000

10001 2500025001 5000050001 100000

100001 200000200001 500000500001 1000000

1000001 20000002000001 5000000

Over $5000000

OffenseValue

12

16

20

24

30

36

42

48

54

60

Deficiency

Up to $10001001 50005001 10000

10001 2000020001 3500035001 7000070001 120000

120001 200000200001 350000350001 600000600001 1000000

1000001 2000000Over $2000000

BaseOffenseValue

10

12

14

16

18

22

26

30

36

42

48

54

60

OFFENSES INVOLVING DRUGS

Amount Base Offense Value

kg or more cocaine 180kg to kg cocaine 168

500 gIns to kg cocaine 144250 to 500 gms cocaine 132100 go 250 gms cocaine 7225 to 100 gms cocaine 6610 to 25 gms cocaine 48

10 gins cocaine 28

20000 lbs or more marijuana 1082000 to 20000 lbs marijuana 72200 to 2000 lbs marijuana 4850 to 200 lbs marijuana 3210 to 50 lbs marijuana 24

to 10 lbs marijuana 18lb marijuana 12

As they now stand the guidelines do not require or suggest that

the Court deliver an alternative to incarceration even for those

cases where the Sanction Units do fall below 14 It is left entirely

to the discretion of the Court It is an established fact that the

United States has the longest sentences in the world and one of the

highest crime rates.1 There is no evidence that longer sentences

provide greater ceterrence to the offender or wouldbe offender

than short ones.2 AS the prosecutorially oriented reforms begin to

1James Jay State Prisons on Trial State LegislaturesVol Feb 1979 p.S

2lbid Jay p.4

10

jell the onus falls with increased heaviness onto the shoulders of

the defense counselor to aggressively represent the defendant at

the time of sentencing documented defense PSI which intelligently

reviews the facts of the case and highlights the mitigating aspects

is essential to an informed sentencing decision Eighteen U.S.C

3553c states The Court must explain its specific reasons for

imposing sentence at particular point within the range or out

side the range in open Court at the time of sentencing The judge

can readily point to specific tables and offense and offender charac

teristics in print in the guidelines with assigned numerical values

as the reasons for aggravating the defendants base offense score

As the guidelines stand now there are no corresponding lists for

mitigating factors whereby the base offense score might be reduced

Although the Commission states it has yet to fully consider the

weight to be given such basic offender characteristics as age educa

tion previous employment record family ties and responsibilities

community ties and so on and seeks the publics input on such

matters as it now stands these are not addressed formally within

the structure of the guidelines Any list of mitigating factors

to be used at sentencing which bear with relevance on the facts of

the case will not come from the sentencing guidelines or drop from

heaven In some respects guidelines alone could not address these

factors not entirely An individual life has very individual cir

cumstances which give rise to the situation bringing the defendant

before the Court defense PSI prepared to aid the attorney on

behalf of the client must address sentencing alternatives whenever

appropriate One of the purposes of defense PSI is to document

11

specific mitigating factors investigated and researched whereby the

Court can view the offender and the offense in the context of the

offender as an individual person past present and future This

document can serve as an immediately available written record from

which the judge can identify mitigating facts that support reduc

tion of the defendants Sanction Units to render decision at or

near the lower end of the applicable guideline range This is the

only opportunity for the defense to influence the time client will

serve in jail There is no parole Time sentenced is time served

under the new guidelines

It is hard to believe that the purposes of sentencing and

justice will be met by sentencing an 18-year-old the same as 40-

year-old under identical guidelines as if both had equal culpability

and ability to evaluate themselves and their behavior Any one of

us at least age 30 or older can look back at ourselves at age 18

and readily admit we were not capable of the insight and foresight

we can now bring to our decisionmaking process as result of our

longer life experience And who could possibly believe that justice

and the community are better served by paying $15000 to $17000 per

year to house man in jail for refusal to file tax charge of

$16000 when he could have served as community volunteer in

local hospital filling staff position normally costing the hospital

$14000 in salary Through community service sentence this individ

ual could begin paying back his debt to society real and moral And

who would willingly turn over their personal tax dollars to foot the

bill for imprisoning young man for taking six bags of dirt from

National Park Surely he requires punishment but who is being

12

punished by sending him to jail Perhaps under our current federal

system alternatives to incarceration do not receive widespread

attention or popularity among judges or the public but they are

available and on occasion wisely selected and used These prelimi

nary guidelines seem inclined to preclude the use of alternatives

to incarceration to any degree which would make them practical and

helpful to our current judicial and prison systems not to mention

society

In any project corporate or personal there are goals Some

are stated some are implicit some are private The Senate resolu

tion states some very obviously worthy goals The Comprehensive

Crime Control Act of 1984 with its first time ever written purposes

of sentencing stated some goals for our federal sentencing practices

The Sentencing Commission holder ofmanygoals states its long term

goals as achieving workable fair and effective sentencing guide

lines The implicit goals of the crime reform wave sweeping across

our country are perhaps goals for greater personal safety crime

reduction reduction of sentencing disparity But upon reading

through the draft of these guidelines albeit filled with underscored

requests for comments and assumed future revisions prior to finaliza

tion it seems the private goal being sought by our justice system

and current administration is to add another title to our countrys

image-making machineryCrime Busters of the Universe

13

Constitutionality Of The Proposed Guidelines

The Supreme Court has ruled that the Sixth Amendment forbids

penalties against defendants who choose to stand trial but does

not forbid proper degree of leniency in return for guilty pleas

Corbitt New Jersey 439 U.S 212 223 l978 An individuals

right to trial is Constitutional right the basic foundation

of which may be threatened by these new guidelines witness at

one of the Commission hearings Edward Marek federal public

defender for the Northern District of Ohio testified that an expli

cit system-wide automatic discount which would apply in 90 percent

of all cases might well be viewed not as leniency but as means of

.4penalizing those who do not accept it It is appearing to many in

criminal justice circles that mitigating sentence by admission of

guilt is fine-line issue which the Commission must walk bit more

convincingly if these new guidelines are to be endorsed as they

stand

This is not to say that cooperation should not have its due

rewards but the message in the guidelines appears to be Plead

guilty cooperate and in turn few points will be deducted from

your offense Sanction Unit score However if you have been con

victed of greater charge than the one you pled to you will be

sentenced nonetheless based on the Sanction Units assigned to the

greater charge It sounds like the interest earning checking

3Criminal Justice newsletter Vol.17 No.19 October 1986

4lbid

14

accounts with monthly service charge for balances below certain

dollar amount. .whatever you gain in interest you lose in service

charge One of the concerns of using cooperation as mitigating

factor in sentencing is that it considers only those people who

literally admit to crime despite their right to trial and

fair trial at that

Aggravating And Mitigating Offender Characteristics

In calculating an offenders Sanction Unit score the Court has

three Offender Characteristics to assess Role in the Offense

Post-Offense Conduct and Criminal History

Role in the Offense Titles are not controlling

It is the offenders role in the offense of con

viction that is significant There are various

characteristics such as position of control over

criminal enterprise supervising another person

in the commission of the offense or using

special skill in the offense which multiplies an

offense score by set number If the offender

was minor participant the score is reduced

based upon culpability and the nature of the

criminal conduct involved The appropriate

numerical multiplier for some of the considerations

listed is decided by the judge For first conviction for engaging in continuing criminal enter

prise the base offense value is 120 or the total

of the offense values applicable to the predicate

offenses whichever is greater

15

Post-Offense Conduct This section includes

Obstruction of Justice whereby the judge selects

an appropriate numerical multiplier to assign to

such considerations as attempts to conceal or

destroy evidence offering untruthful testimony

directing another person to offer perjured tes

timony The second characteristic is Acceptance

of Responsibility whereby the offenders Sanction

Unit score can be decreased by an amount not to

exceed 20 percent of the base score if the judge

finds through Preponderance of the Evidence

that the defendants acceptance of responsibility

has been established This may be accomplished

through such activities as voluntary surrender

before charges are filed voluntarily making

restitution or other objective steps towards

rehabilitation This is one of the few areas

whereby mitigating factors may be assessed and

used to decrease Sanction Unit score This

is separate category from Cooperation

Cooperation is the third characteristic in this

section The text from the guidelines reads thus

COOPERATION

If the United States Attorney certifies thatthe offender provided truthful and signifcant information regarding the criminal activities of another person or persons multiplythe total offense value from Chapter Two by.8

If the United States Attorney certifies thatthe offender actively assisted authorities in

an ongoing investigation or provided truthfuland significant testimony before grand juryor in court proceeding multiply the totaloffense value by .7

If the United States Attorney certifies thatthe offender provided exceptional assistanceto law enforcement authorities multiply the

total offense value by .6

16

The last statement provides for 40 percent

reduction for exceptional cooperation

The third section under Offender Characteristics

is Criminal History The introductory text from

the guidelines reads as follows

sentence adjustment for an offenders criminalhistory can be justified on both just punishmentand utilitarian grounds From just punishmentperspective repeat offenders who have alreadyexperienced intervention from the criminal justicesystem has ignored warnings Therefore they aredeemed more blameworthy than offenders who have notbeen confronted previously The amount of the

sentence adjustment that is justified by criminalhistory is subject of debate but many just punishment proponents accept some sentence modification for criminal record

Crime control arguments provide stronger justification for using criminal history to adjustsentence Criminal record is strong predictorof recidivism As result it is often used to

increase the length of imprisonment and the levelof supervision for offenders thus addressing incapacitation and deterrence respectively

The major components of the criminal historyadjustment are the number and severity of sanctions imposed for prior convictions and whetherthe offender was under criminal justice controlduring the commission of the current offense orhad recently been released from custody These

components reflect the extent seriousness andrecentness of criminal history An additionalitem deals with the use of heroin opiate derivatives and other dangerous drugs decayfactor is used to eliminate old offenses fromthe criminal history adjustment

The Commission invites public comment on the

appropriate relationship between criminal record

and sentence The guidelines contain criminal

history score table based on the role criminal

history has played in past sentencing decisions

17

as focal point for examining various alternative

approaches The following is taken from the guide

lines listing the areas to be considered in calcu

lating the criminal history score The total score

is then applied to the criminal history score

table which relates that score to the base offense

score and determines the final number to be added

to the base offense score

Score at least points for each prior sentenceof imprisonment for maximum term of more thanone year For each such term

score points if the offender served less

than three years

score points if the offender served threeor more years but less than five years

score points if the offender served five

or more years

Score points for each prior sentence of imprisonment for maximum term of 60 days or more that is

not counted above

Score point for each prior sentence that is notcounted above

Score points if the offender committed the current offense

while under any form of criminal justicecontrol including probation parole or

supervised release custody or escapestatus or any form of release pendingtrial sentencing or appeal or

within three years after any release from

imprisonment on sentence counted in

above or within three years after the

imposition or commencement of any sentencecounted in above

Score points if the offender had positiveurine test for heroin or any other opiatecocaine or PCP either at the time of arrestduring the pretrial release period or duringthe presentence release period or scorepoints if the offender is determined to have

been an abuser of heroin or any other opiatecocaine or PCP within ten years of the currentconviction

18

The chapter on Offender Characteristics concludes

with two major considerations Plea Agreements and

Other Offender Characteristics The plea agreement

section consists of list of unresolved issues

about which the Commission solicits public comments

The remaining Offender Characteristics are ones the

relevance of which has not been determined

The Commissions authorizing legislation requiresit to consider whether number of offender characteristics have any relevance to the nature extentplace of service or other incidents of an appropriatesentence and to take them into account only to theextent they are determined relevant 28 U.S.C 994dThe characteristics are

ageeducationvocational skillsmental and emotional condition to the

extent that such condition mitigatesthe defendants culpability or to the

extent that such condition is otherwise plainly relevantphysical condition including drugdependenceprevious employment recordfamily ties and responsibilitiescommunity tiesrole in the offense

10 criminal history and11 degree of dependence upon criminal

activity for livelihood

Comparing The Old And The New

It would be difficult to draw perfectly equal comparisons since

the scoring systems between the old and new guidelines are not the

same However looking at some basic examples readily establishes

comparison

19

Months To Serve

Offense Example Under Old Guidelines Under New Guidelines

10 50 lbs marijuana to 22 months 12 to 18

depending onSalient FactorScore

200 to 2000 lbs marijuana 12 to 44 36 to 44

depending on

Salient FactorScore

to kilos cocaine 40 to 100 132 to 210

depending onSalient FactorScore

20000 or lbs marijuana 40 to 100 96 to 120

depending on

Salient FactorScore

500000.00 property offense 40 to 100 24 to 30

depending on

Salient FactorScore

From these and other examples across old and new guidelines

some patterns stand out Drug offenses of small quantities start

out with higher guidelines under the new system with upper limits

close to the old limits Penalties for larger quantities start

very much higher with higher maximum terms Some white collar

offenses have comparable or lower penalties under the new guide

lines compared to the old

It is understandable that we would all like there to be less

crime in our country less fear of crime but longer tougher senten

ces and classifying all criminals in the same category will not

bring the sought after results This last resort emotionalism

20

will not remedy the situation Too many of the wrong offenders are

being sent to prison in droves occupying precious space which is

then unavailable for the violent offenders and it does not appear

that the new guidelines will alter this pattern they may in fact

increase the problem The vision of criminal law reform that

began as progressive is looking dismally repressive

One of the most distressing lacks in the draft of the new

guidelines is strong provision for lessening sentence severity

based on the youthfulness of the offender By incarcerating 18 to

20yearolds to the severity level presented in these new guide

lines we are jeopardizing the very essence of our humanity The

very heart of Americats future is demoralized by incarcerating our

young people for extended periods of time This is so applicable

to cases of youthful first time offenders At 18 with your whole

life before you there is sense of invincibility which precludes

an adult grasp of cause and effect relationships We are not

leaving any latitude for judges to work with youthful offenders in

alternatives to incarceration The new guidelines mention youth

as mitigating factor to be discussed between now and finalization

but in this the Sentencing Commissions conclusive draft developed

as result of enormous input from criminal justice professionals

no regulating procedure or point values are mentioned to account

for youth as mitigating factor in determining sentence Even

if two three or four points were deducted that does not change

the rate of incarceration to such degree that young person will

have chance to resolve their difficulties and return to life

The guidelines would not drop from ten years to two years but only

21

perhaps nine We really need to focus on rehabilitation for young

people not punishment for punishments sake

Summary

We have attempted in this article to represent what we have

identified as the most urgent concerns for those interested in

sentencing reform Much of the information contained in the article

comes from the actual draft of the guidelines and Commissions

commentary therein

National Legal Services is dedicated to sentencing alternative

planning and the preparation of defense presentence reports to enable

defense attorneys to be more effective sentencing advocates now and

in the future

wise statesman once said There are two things people

shouldnt watch being made sausages and laws

from The Advocate Vol.8 No.4 June 1986

22--