Federal Sentencing Guidelines Research Articles

The Sixth Amendment Right to Fair Sentencing: An Analysis of Acquitted, Dismissed, and Uncharged Conduct Under the Federal Sentencing Guidelines

The Sixth Amendment Right to Fair Sentencing: An Analysis of Acquitted, Dismissed, and Uncharged Conduct Under the Federal Sentencing Guidelines

Retroactive Guidelines Amendments Must Apply to Individuals Who Receive Below-Guidelines Sentences to Protect the Individualized Sentencing Required by Federal Sentencing Statutes

Retroactive amendments to the federal sentencing guidelines, such as Amendment 821 to the calculation of criminal history, confer discretion on judges to reduce sentences when the Sentencing Commission determines that a guideline is overly harsh. The statute on retroactive amendments, 18 U.S.C. § 3582(c)(2), authorizes modification of sentences “based on” the pre-amendment guidelines range. From the time of the initial Commission until 2011, all defendants whose guidelines range calculations included the amended guideline were eligible for a comparably lower sentence, regardless of whether the sentence was below-, within-, or over the guidelines range, under U.S.S.G. § 1B1.10. But in response to Booker, the Commission amended the policy statement in 2011 to bar from eligibility persons who received below-guidelines sentences, whether by downward variance or departure. This change reflected the earlier Commission’s hostility to Booker variances under the advisory guidelines and conflicts with subsequent Supreme Court authority holding that downward variances are “based on” the guidelines range within the meaning of § 3582(c)(2). By disqualifying those who had grounds for below-guidelines sentences, the Commission fails to follow statutory directives regarding individualized sentencing and avoidance of unwarranted disparities. The exclusion of persons who established that downward departure or variance was warranted under the overly harsh pre-amendment guidelines is irrational and unfair, apparently based on an anachronistic attachment to the mandatory guidelines. The Commission should amend its policy statement without delay to recognize eligibility for all defendants whose sentences are “based on” the guidelines range within the broad meaning of the statute.

Reflections on the Rewriting the Sentence II Summit on Alternatives to Incarceration

The Center for Justice and Human Dignity hosted the Rewriting the Sentence II Summit at George Washington Law October 17-18, 2023. This article reviews the presenters’ key comments and the leading insights set forth throughout the Summit regarding sentencing reform and the expansion of alternatives to incarceration. Notably, the sessions included the participation of directly impacted individuals alongside judges, prosecutors, and academics. Keynote speaker Dr. Alisha Moreland-Capuia, M.D. discussed trauma-informed systems change. Various federal and state judges shared their experiences in establishing new alternative to incarceration programs within their courts, exercising judicial discretion, and incorporating compassion and humanity in sentencing. Prosecutors discussed their own experiences of pursuing alternatives to incarceration in appropriate cases, and how their views have evolved. Judge Nancy Gertner presented a critical analysis of the federal sentencing guidelines and their effect on sentencing outcomes. Panelists also discussed current research findings on recidivism reduction, the modern landscape and implications of electronic monitoring, and the multitude of challenges facing jurisdictions in implementing more effective approaches to public safety across all stages of the criminal legal system. The Summit featured speeches from Federal Bureau of Prisons Director Colette Peters and the Chair of the U.S. Sentencing Commission, Hon. Carlton Reeves. Full session recordings can be found at www.cjhd.org/summit.

Recommended but Rarely Followed: Downward Departures of the Federal Sentencing Guidelines Among Child Pornography Offenders

Recommended but Rarely Followed: Downward Departures of the Federal Sentencing Guidelines Among Child Pornography Offenders

Showcase: A Data-Driven Dashboard for Federal Criminal Sentencing

The main purpose of the Sentencing Reform Act of 1984 was to provide more uniformity in sentencing and reduce interjudge disparity. Subsequently, the act created the federal sentencing guidelines to offer judges a possible sentencing range for offenses. However, since these recommendations were based on historical data, the guidelines amplified existing biases and increased inequality and the disproportionate sentencing of minorities. To address this problem, we developed an artifact called “ShowCase”—a data-driven dashboard—that is grounded in penal theory, organizational context theory, social bonds theory, and triangulation notion in design theory. The artifact helps judges make fairer and more objective decisions by integrating a variety of data points. We used a design science research methodology and mixed methods to guide the development and evaluation of the proposed dashboard. Our research inquiry revealed the legal and extralegal factors that contribute to more equitable judicial decisions. We also found support for integrating data science and more diverse viewpoints in the sentencing process. Our study shows that a validated data-driven dashboard can be used to promote fairness, objectivity, and transparency in the criminal justice system.

Saving the People Congress Forgot

Lost among more than 150,000 federal prisoners is a small cohort of “old law” people who have served many decades in custody. They were sentenced for offenses committed prior to November 1987, when the Federal Sentencing Guidelines went into effect. These are some of the oldest and most vulnerable people in the federal system, and least likely to re-offend. The possibility of release for most of them lies with the U.S. Parole Commission, a dysfunctional government agency. Unlike other federal prisoners, old law people cannot ask a court for compassionate release. The Commission was scheduled to go out of business in 1992, but instead its role has changed and it has been continually re-authorized, currently through October 2023. But as the article explains, the Commission is a failed agency: it has lost track of old law people and has not reported accurately to Congress. Further, the Agency was created to oversee a vastly different population than the aging and medically vulnerable people under its jurisdiction now. The article recommends amending the First Step Act to allow all old law people to apply for compassionate release under the same procedures available to new law prisoners. Congress should not continue to re-authorize the Parole Commission. Parole authority should be transferred to U.S. magistrate judges, to apply release criteria more suited to an elderly population. Finally, clemency petitions for everyone sentenced under the old law should be prioritized by President Biden.

Fine Tuning the Guidelines—Again

In Fine Tuning the Guidelines – Again, the author revisits his recommendations on how to fine tune the federal sentencing guidelines that he offered twenty-seven years ago, and explores the ways in which the guidelines, first upheld by the Supreme Court in 1989, have impacted the criminal justice system of today, for better or worse. Tracking its history and development through the years, this article queries whether the original intentions behind the federal sentencing guidelines are still being served by the now-advisory nature of the guidelines. And taking into account the statistical information and data now publicly available, this article explores the disparities in sentencing that exist today and the myriad of potential causes for such results. The same need for justice and equality in sentencing, regardless of factors such as location or race or ethnicity, appears to be as ardent as it was 40 years ago, especially considering that 98.3% of defendants ended up pleading guilty in 2021. Hopefully, armed now with decades more experience and access to data from across the country, the guidelines can again be adjusted further to achieve their original purposes.

A Suggestion for Making the Federal Sentencing Guidelines and the U.S. Sentencing Commission Reflect the Realities of Post-Booker Sentencing

It has been approximately seventeen years since the Supreme Court issued its landmark decision in United States v. Booker. In Booker, the Court transformed the Federal Sentencing Guidelines from mandatory to advisory. Nonetheless, the front-end of federal sentencing looks the same today as it did pre-Booker—the U.S. Probation Office prepares a presentence report (PSR), the parties litigate over the guidelines calculations set forth in the PSR, and the judge makes a ruling as to the appropriate guidelines range. The work of the U.S. Sentencing Commission also looks largely the same today as it did pre-Booker. This essay argues that it is time to change the guidelines to reflect the realities of post-Booker sentencing. More specifically, this essay argues that the complex and intricate guidelines need to be radically simplified. If the guidelines are simplified in the manner proposed, then the Sentencing Commission’s primary function would become the collection, analysis, and dissemination of sentencing data. Although the changes discussed in this essay would not result in a perfect federal sentencing system (far from it), they would result in a more efficient one that better reflects the practical realities of post-Booker sentencing.

Sentencing Drug Offenders Justly While Reducing Mass Incarceration

In my paper, I discuss what I believe is the most effective approach to sentencing drug defendants. I start with the proposition that in many, if not most cases, incarcerating drug offenders does more harm than good. Imprisonment contributes to mass incarceration, does not deter unlawful drug activity and has an adverse racial impact. Thus, if a judge can reasonably avoid imposing a prison sentence, he or she should do so. Fortunately, this is the judge’s duty under the law. 18 U.S.C. §3553(a) requires a judge to impose a sentence that is “sufficient but not greater than necessary…” or, in other words, the least restrictive reasonable sentence. Thus, in every case, the judge must first consider whether a non-incarcerative sentence is sufficient. It often will be. In determining the appropriate sentence, a judge should focus on what the offender did and why and what he or she will likely do in the future and pay less attention to such factors as drug type and drug weight. Sometimes, a mandatory minimum sentence will apply and prevent a judge from imposing a fair sentence, but that is outside the judge’s control. Fortunately, because of Booker and its progeny, the Federal Sentencing Guidelines do not pose a similar problem. The judge, of course, must calculate and consider the applicable guideline but in many cases the guideline will be irrelevant to a just sentence. This is so because the guidelines are excessively oriented toward prison sentences and thus frequently conflict with the sufficient but not greater than necessary command of §3553(a). In my paper, I provide numerous examples of sentences that I have imposed and explanations of those sentences to illustrate this approach.

Sentencing Drug Offenders Justly While Reducing Mass Incarceration

In my paper, I discuss what I believe is the most effective approach to sentencing drug defendants. I start with the proposition that in many, if not most cases, incarcerating drug offenders does more harm than good. Imprisonment contributes to mass incarceration, does not deter unlawful drug activity and has an adverse racial impact. Thus, if a judge can reasonably avoid imposing a prison sentence, he or she should do so. Fortunately, this is the judge’s duty under the law. 18 U.S.C. §3553(a) requires a judge to impose a sentence that is “sufficient but not greater than necessary…” or, in other words, the least restrictive reasonable sentence. Thus, in every case, the judge must first consider whether a non-incarcerative sentence is sufficient. It often will be. In determining the appropriate sentence, a judge should focus on what the offender did and why and what he or she will likely do in the future and pay less attention to such factors as drug type and drug weight. Sometimes, a mandatory minimum sentence will apply and prevent a judge from imposing a fair sentence, but that is outside the judge’s control. Fortunately, because of Booker and its progeny, the Federal Sentencing Guidelines do not pose a similar problem. The judge, of course, must calculate and consider the applicable guideline but in many cases the guideline will be irrelevant to a just sentence. This is so because the guidelines are excessively oriented toward prison sentences and thus frequently conflict with the sufficient but not greater than necessary command of §3553(a). In my paper, I provide numerous examples of sentences that I have imposed and explanations of those sentences to illustrate this approach.

Supporting Responsive Federal Drug Sentencing Through Education in the Workshop on Science-Informed Decision Making

On the federal level, judicial education in sentencing has been focused primarily on preparing judges to calculate and apply the Federal Sentencing Guidelines. But in an advisory guidelines context, making individualized assessments in drug cases requires education in the science of addictions, the drivers of behavior, and the prospects for behavior change when substances are involved. Neuroscience and the sciences of human behavior provide clarifying insight into substance-driven behaviors and cognitions that are routinely encountered in federal drug cases. These disciplines support individualized sentencing by shedding new light on the nature of inhibitory control, the reasonable expectations for relapse, and the distinctions that can be drawn based on science between different treatment interventions. In this Article, we report on the Workshop on Science-Informed Decision Making, an education initiative in the federal judiciary. Since 2016, it has provided education in neuroscience and behavioral science, as well as skills training in individualizing sentences using insights from that science, to U.S. district judges, magistrate judges, and pretrial services and probation officers in thirty-two federal districts. We describe the case-study-based instructional approach of the workshop, including some of the misconceptions about addiction behavior it addresses, and explain why we believe that this kind of education helps federal judges, and pretrial services and probation officers, craft more responsive sentencing decisions and recommendations.

A Trial Judge’s Reflections on Departures from the Federal Sentencing Guidelines

Research Article| February 01 2021 A Trial Judge’s Reflections on Departures from the Federal Sentencing Guidelines Hon. Jack B. Weinstein Hon. Jack B. Weinstein United States District Judge, Eastern District of New YorkAs part of this Issue dedicated to the Honorable Jack B. Weinstein (EDNY), we are pleased to reprint this article authored by Judge Weinstein. This article originally appeared in FSR Vol. 5, No. 1 at p. 6 (July/ August 1992)This paper was originally drafted as notes for a discussion at the March 2, 1992 meeting of the Sentencing Institute for the Second and Eighth Circuits in Lexington, Kentucky. Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2021) 33 (3): 202–205. https://doi.org/10.1525/fsr.2021.33.3.202 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn MailTo Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Hon. Jack B. Weinstein; A Trial Judge’s Reflections on Departures from the Federal Sentencing Guidelines. Federal Sentencing Reporter 1 February 2021; 33 (3): 202–205. doi: https://doi.org/10.1525/fsr.2021.33.3.202 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. © 2021 Vera Institute of Justice. All rights reserved.2021 Article PDF first page preview Close Modal You do not currently have access to this content.

A Judge’s Attempt at Sentencing Consistency After Booker

This article examines how Judge Jack B. Weinstein, who served as a federal district judge in the Eastern District of New York for 53 years, approached the issue of consistency in sentencing after the Federal Sentencing Guidelines were rendered advisory in United States v. Booker. It was Judge Weinstein’s practice to publish a statement of reasons for each sentence he imposed, and the article relies on these statements of reason – as well as articles and speeches published by the Judge – to demonstrate how he attempted to ensure that each defendant before him received an individualized sentencing determination, and that comparable cases and sentencing factors were treated consistently. It examines how Judge Weinstein developed a specific sentencing procedure, took into account the personal history and characteristics of each defendant, and considered the need for the sentence in order to avoid unwanted sentencing disparities. It is a condensed version of an article that was originally published in the Cardozo Law Review in 2019.

Judge Weinstein's Contributions to Sentencing Law

This article examines how Judge Jack B. Weinstein, who served as a federal district judge in the Eastern District of New York for 53 years, approached the issue of consistency in sentencing after the Federal Sentencing Guidelines were rendered advisory in United States v. Booker. It was Judge Weinstein’s practice to publish a statement of reasons for each sentence he imposed, and the article relies on these statements of reason – as well as articles and speeches published by the Judge – to demonstrate how he attempted to ensure that each defendant before him received an individualized sentencing determination, and that comparable cases and sentencing factors were treated consistently. It examines how Judge Weinstein developed a specific sentencing procedure, took into account the personal history and characteristics of each defendant, and considered the need for the sentence in order to avoid unwanted sentencing disparities. It is a condensed version of an article that was originally published in the Cardozo Law Review in 2019.

Caught In-Between: A Video Essay of Masculine Identity and Methamphetamine Use in the Rural South

Judicial discretion in sentencing has historically produced disparities in criminal sentencing outcomes. In an effort to address disparity at the federal level, in 1984, the U.S. Congress passed legislation that led to the creation of the U.S. Sentencing Commission and subsequently the adoption of federal sentencing guidelines. Studies show that even among similarly situated defendants (in terms of offense score and criminal history category) disparities have persisted regardless of the sentencing guidelines. An understudied source of disparity is the combined and interactive role of judges, prosecutors, and defense attorneys in the application of the guidelines and the statutory framework that informs sentencing. The current study examines sentencing for the federal offense of illegal reentry of removed aliens (8 U.S. Code §1326) in one division of a U.S. District Court. This study reports data from direct non-participant observation of sentencing hearings and publicly available court records. Findings reveal sources of sentencing disparity among similarly situated cases that are not readily illuminated by the yearly quantitative data provided by the U.S. Sentencing Commission. The findings suggest that disparity in the sentencing of similarly situated illegal reentry defendants is influenced by differential judicial interpretation of and use of the tools made available to them in the sentencing guidelines and the statutory sentencing authority.

Opening the “Black Box” of Federal Illegal Reentry Sentencing: A Non-Participant Observational Analysis of Sentencing Constraints and Judicial Discretion

Judicial discretion in sentencing has historically produced disparities in criminal sentencing outcomes. In an effort to address disparity at the federal level, in 1984, the U.S. Congress passed legislation that led to the creation of the U.S. Sentencing Commission and subsequently the adoption of federal sentencing guidelines. Studies show that even among similarly situated defendants (in terms of offense score and criminal history category) disparities have persisted regardless of the sentencing guidelines. An understudied source of disparity is the combined and interactive role of judges, prosecutors, and defense attorneys in the application of the guidelines and the statutory framework that informs sentencing. The current study examines sentencing for the federal offense of illegal reentry of removed aliens (8 U.S. Code §1326) in one division of a U.S. District Court. This study reports data from direct non-participant observation of sentencing hearings and publicly available court records. Findings reveal sources of sentencing disparity among similarly situated cases that are not readily illuminated by the yearly quantitative data provided by the U.S. Sentencing Commission. The findings suggest that disparity in the sentencing of similarly situated illegal reentry defendants is influenced by differential judicial interpretation of and use of the tools made available to them in the sentencing guidelines and the statutory sentencing authority.

Sentencing Abstention

A primary role of the Supreme Court is to resolve conflicts among the federal courts of appeal. When the split concerns the federal sentencing guidelines, however, the Supreme Court has ceded this role to the U.S. Sentencing Commission, effectively allowing the Commission to act as the court of last resort in this context. As then-Judge Alito recognized, “no other federal agency—in any branch—has ever performed a role anything like it.” This anomaly has largely escaped academic attention because the Court’s abdication comes in the form of certiorari denials, which are buried in the Court’s long order lists. But the consequences of the Court’s refusal to review splits involving federal sentencing policy—referred to here as “sentencing guidelines abstention”—cannot be ignored. Sentencing guidelines abstention perpetuates uncertainty and wide-ranging sentencing disparities, meaning the length of a federal defendant’s sentence will depend on the happenstance of where the defendant is sentenced. The principled and fair administration of justice cannot tolerate such ambiguity and randomness. This Article argues that there is no sound basis for sentencing guidelines abstention. It outlines reasons—grounded in precedent, congressional intent, administrative law principles, and practical considerations—why the Court should reassume its traditional role of resolving federal sentencing guideline splits, provide uniformity and consistency to the federal judiciary, and contribute thereby to the development of a reasoned and coherent federal criminal justice system.

Race, Ethnicity, and Punishment for Federal Sex Offenses: Changing Composition in Child Pornography and Sex Abuse Cases and Temporal Disparity in Sentencing Over Time.

In response to several high-profile violent offenses against children over the past two decades, Congress has enacted several pieces of legislation aimed at increasing punishment for those convicted of federal sex offenses. Coinciding with these enhanced penalties was a demographic shift in the composition of those prosecuted for these offenses. In the federal criminal justice system, sex offenses fall into two main categories: child pornography and sexual abuse. The racial and ethnic makeup of individuals charged for federal sex offenses has significantly changed over the past 15 years. The current study utilizes federal sentencing data from the United States Sentencing Commission for the years 2006 to 2017 to explore the nature of punishment for these offenses over time. We also employ multivariate analyses to examine differences in punishment for the two types of offenses and employ disaggregated analyses by offense type to examine temporal change in racial/ethnic disparities in sentence length and departures from the federal sentencing guidelines. Findings demonstrate that convicted individuals who are Black and Hispanic are receiving harsher sentences over time net of controls for other key predictors such as age, sex, criminal history, and presumptive sentence length. Implications for how legislatively enhanced penalties and changing demographic makeup of those convicted for these offenses may have introduced extra-legal disparity into federal sentencing are further discussed.

When “One Step” Is a Leap: Examining the Fifth Circuit's Correct Interpretation of the Federal Sentencing Guidelines

When “One Step” Is a Leap: Examining the Fifth Circuit's Correct Interpretation of the Federal Sentencing Guidelines

Corporation blameworthiness and federal criminal fines

PurposeThe purpose of this paper is to assess if federal judges have sentenced criminal corporations to fines that are consistent with the seriousness of the offense and the blameworthiness of the organization, which would be in line with the directives from the US Sentencing Guidelines. This paper will also use the focal concerns framework to measure organizational blameworthiness.Design/methodology/approachThis paper uses secondary data from federal sentencing documents, collected by the US Sentencing Commission, for cases that were adjudicated between October 1, 2010 and September 30, 2017.FindingsResults showed that the focal concerns framework can be used to define potential constructs for blameworthiness and that an organization’s culpability score was a significant predictor in whether the company received a higher fine.Research limitations/implicationsThe data are unable to examine two of the three measures of focal concerns. Cross-sectional data limits the ability to draw conclusions regarding cause and effect between blameworthiness and monetary fines.Practical implicationsResults imply that judges are sentencing corporations that have higher culpability scores to more severe fines, in accordance with both the federal Sentencing Guidelines and focal concerns framework.Originality/valueThis study is one of the first to apply the focal concerns framework, usually used to examine the sentencing of individuals, to the sentencing of corporations. It is also one of the first to attempt to empirically define blameworthiness.