Constitutional Challenges, Risk-based Analysis, and Criminal History Databases: More Demands on the U.S. Sentencing Commission

Abstract

Criminal history has traditionally been a component of any sentence determination. In guideline systems, it has become one of the two axes that determine an offender’s sentence. This FSR Issue focuses largely on the important role criminal history plays in the federal Guidelines, though it also provides an update on recent developments in England. The Contributors to this Issue discuss a host of empirical and legal questions, the resolution of many of which require crucial value judgments and call for a more focused re-thinking of the justifications underlying the federal Guideline structure. This Issue continues FSR’s ongoing coverage of the criminal history category, a topic we have taken up in two other recent Issues. 1 The impetus for this Issue were two recent Sentencing Commission studies on criminal history. One, entitled Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines examines the predictive statistical power of Chapter Four, as it is currently written. Linda Drazga Maxfield, a senior research associate with the Commission, presents a synopsis of this report in this Issue. The second study focuses on Recidivism and the “First Offender.” It analyzes recidivism rates among federal offenders with little or no criminal history prior to the federal offense at issue. 2 Former Commissioner O’Neill includes some of the major findings of this study in his article in this Issue.