Federal Criminal Defense Lawyer
How the Federal Sentencing Guildelines Work
The process of sentencing a federal criminal defendant is a formal and complicated one. Essentially, it requires the judge to engage in a three-step analysis: (1) determine the Guideline sentencing range; (2) determine whether any standard Guideline departures apply; and (3) determine whether any other (non-Guideline) factor requires a variance from the Guideline-range sentence.
The sentencing process begins with the Federal Sentencing Guidelines. The Guidelines establish a sentencing range based on the characteristics of the crime committed by the defendant (the “offense level”) and the defendant’s criminal history. The Supreme Court has determined that the Guidelines are advisory, not mandatory. Still, the judge must identify the Guideline range. The court may not, however, presume that the Guideline range is reasonable; rather, the court must continue with the remaining steps in the sentencing process before making a final decision.
Once the judge has identified the Guideline range, the next step is to determine whether the Guidelines allow for a departure from that range. The Guidelines provide that a departure is appropriate when (a) aggravating or mitigating circumstances exist, such that this case is an “unusual case,” outside the realm of the “typical” cases of this nature that were considered in developing the Guidelines; or (b) the prosecutor requests a departure on the ground that the defendant has provided “substantial assistance” in another case.
The final step in the sentencing process requires the judge to consider whether non-Guideline, statutory factors (i.e., factors established by law in the Sentencing Reform Act) justify a variance from the Guideline range. These factors include the unique circumstances of the defendant and the crime; the broader goals of federal sentencing and federal sentencing policy; the sentencing options available; and the Guideline range. If the court relies on these additional factors to vary the sentence, the court must issue a written opinion explaining its reasoning.
Restoring the Court’s Sentencing Discretion
For the thirty years, Congress successfully robbed Federal judges of sentencing discretion by requiring them to impose the Federal Sentencing Guidelines. By making the Federal Sentencing Guidelines mandatory, Congress attempted to remedy the sentencing disparities for seemingly similarly situated criminal defendants. While ostensibly arguing for a fairer system, these so-called “tough-on-crime” politicians were really targeting judicial empathy. Rarely, if ever, did these politicians anguish over a judge meting out too tough a sentence to some poor bastard. To straightjacket the judicial miscreants who refused to clobber the convicted, Congress passed Federal Sentencing Guidelines.
Unfortunately for the accused, “Guidelines” was a misnomer; the guidelines were mandatory, allowing for almost no judicial input into the sentencing process. Under the “guidelines,” each crime began with a base score. To this base score, sentencing “enhancements” (additional factors – such as the defendant’s criminal history, if any, position within the criminal enterprise, fraudulent conduct, etc.) were added, driving up the point total. The point total determined whether an individual received straight probation or a lengthy prison sentence. A defendant convicted of a crime with a base score of “6” (a probatable offense) could easily serve a prison sentence of more than twenty years because of sentencing enhancements.
In 2005, after 18 years of suffocating insanity, the United States Supreme Court finally ruled mandatory application of the Guidelines unconstitutional in the cases of United States v. Brooker and United States v. Fanfan.
The Guidelines did not strip the judiciary of its power; it shifted that power, and then some, to Federal prosecutors. Like twisted revelers at Christmas time, these Federal avengers pre-determined sentence length by carefully selecting the offense with which to charge the accused and then hanging on it every enhancement ornament they could find. With no power with which to restrain the prosecutors, Federal judges were forced to give out lengthy and often undeservedly harsh sentences to defendants. Wisdom, imagination, and decency were no longer needed or even desirable traits for those seeking the elevation to the Federal bench – with the Guidelines, any imbecile who could count on his fingers could competently serve as a Federal judge.
The Guidelines persist – but as guidelines only. Federal judges have recovered their discretion and prosecutors have been knocked back on their asses – where they belong. Defendants sentenced to unduly severe and unwarranted Federal prison terms under the Sentencing Guidelines may now challenge those sentences. The Booker and Fanfan decisions will rescue untold numbers of Federal prisoners from years, if not decades, of irrational, costly and counterproductive incarceration.
Kevin J. Mahoney is a Federal criminal defense lawyer, author of Relentless Criminal Cross-Examination and on-air legal analyst.