In the 1970’s citizens, Congress and discontent judges began expressing their frustration with discretionary sentencing. Defendants accused of similar crimes were often receiving radically different sentences and crime rates across the country were on the rise. Conservatives were against discretionary sentencing because they believed it allowed liberal judges to put guilty defendants back on the streets. Liberals and the more thoughtful conservatives acknowledged the problem and were determined to do something about it. So, in 1984 Congress enacted the Sentencing Reform Act and created the United States Sentencing Commission, which was charged with the task of establishing sentencing guidelines to replace indeterminate sentencing. Thus the Federal Sentencing Guidelines came into being. They were a good idea with unintended consequences.
The worst of these consequences was the injustice caused by quantity driven guidelines, that is, those guidelines which determine sentences by “quantity,” like the amount of money stolen, laundered, or secreted (tax evasion) or the amount of drugs possessed. Upon hearing of this strange formulation, one district court judge commented that that they might as well sentence defendants according to their body weight for all the sense it made.
Another judge highlighted the unfairness this way: Suppose twin brothers A and B were on different street corners selling crack, and by day’s end brother A had one bag of crack in his possession and brother B had sixty bags. Then suppose that both brothers were arrested at the end of their shifts. The brother with 60 bags of crack would be sentenced to prison, and the brother with one bag would be sentenced to probation, if he was prosecuted at all. The more successful brother would thus escape jail while the less successful one would be incarcerated.
There were many permutations of quantity-based sentences, each more bizarre and tragic than the other. A defendant arrested in possession of 500 grams of cocaine had an offense level of 26 with a minimum sentence of 63 months. But a defendant in possession of 499 grams had an offense level of 24 with a minimum sentence of only 51 months, a difference of more than a year for holding one more gram. The Sentencing Commission tried to deal with the problem, but was unwilling to abandon quantity as a basis for the guidelines and did not have any success.
For the next two decades the sentencing guidelines were enforced as mandatory. But in 2005 the Supreme Court intervened and gave some discretion back to the district court judges. With U.S. v. Booker, the Supreme Court decided that the district courts had to consider the guidelines when sentencing defendants, but that the guidelines were now only “advisory” and no longer mandatory. The appeals courts would then review the sentences for “reasonableness.” Still, Judges continued to apply the guidelines based on quantity and appellate courts kept a wary eye on those who did not. When district courts strayed from the sentencing guidelines, the appellate courts applied an arithmetic approach. If a sentence was twenty percent less than the guideline sentencing range, it could be considered acceptable, but if the sentence drastically deviated from the guideline range, it was almost always deemed “unreasonable.”
For example, in U.S. v. Ratoballi a judge in the Southern District of New York sentenced a print broker to probation instead of the 27 months called for by the guidelines. The judge reasoned, in part, that if the defendant, who employed 12 people, went to jail for his non-violent crime, the business would be forced to close and twelve people would be out of work. The court of appeals reversed and directed the judge to re-sentence the defendant to prison. Far from emphasizing the fact that the guidelines were no longer mandatory, the court of appeals extolled the virtues of the guidelines, stating that “the Guidelines are an expression of popular political will . . .” and “. . .[they] represent at this point eighteen years’ worth of careful consideration of the proper sentence for federal offenses.” Although the guidelines were advisory, there was no doubt that they were first among equals.
However, nearly two years later the Supreme Court provided some much needed clarification on the subject of “reasonableness.” In Rita v. U.S. the Supreme Court attempted to determine what the presumption of reasonableness was for sentences within the guidelines. The appellate court had decided that a sentence that landed within the Guidelines range is considered “presumptively reasonable,” and that most sentences would remain in the applicable guideline range. Although the Supreme Court agreed with the circuit court, it explained that the “fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness,” where sentences deviate from the guidelines. The court went on to address the process of determining sentencing and declared that district judges were to use “[their] reasoned sentencing judgment, resting upon an effort to filter the Guidelines’ general advice through § 3553(a)’s list of factors.” The court’s ruling explained that the guidelines were meant to be advisory, not first among equals, and were to be given the same weight as any other factor listed in 18 U.S.C. 3553(a), that is,
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established[and recommended by the Sentencing Guidelines] …
(5) any pertinent policy statement … issued by the Sentencing Commission …
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
But even after the Supreme Court’s opinion the guideline yardstick did not lose its luster.
Now in the post-Booker era of sentencing, a small number of judges took the opportunity to challenge the underlying policy supporting the crack cocaine guideline, a harsh 100:1 ratio between crack and powder cocaine (one kilo of crack = 100 kilos of powder cocaine). In U.S. v. Kimbrough, the district court issued a sentence nearly 50 months below the minimum sentencing guideline for charges including distribution of crack cocaine and conspiracy to distribute crack cocaine. The court of appeals quickly remanded the case for resentencing, claiming that the district court could not deliver a sentence below the guidelines simply because it disagreed with the disparity between crack and powder cocaine. Circuit courts reasoned that you could tinker with the guidelines, but you could not challenge the policy underlying them.
The Supreme Court stepped in again. It held that a judge could most certainly disagree with the policy underlying a guideline sentence and cited several reports from the Sentencing Commission criticizing the excessiveness of the 100:1 ratio. The Supreme Court found that the district court followed sentencing procedure appropriately and that the initial sentence was sufficient and reasonable. This decision suggested that judges now had free reign to fashion any sentence so long as it was in fact reasonable, regardless of previous policy.
But in U.S. v. Spears, a case before the eighth circuit court of appeals challenging the 100:1 crack cocaine ratio and the imposition of a lower sentence, the appellate court reversed claiming that the district court could not reduce a sentence solely upon the rejection of the guideline policy. This was in direct contradiction to Kimbrough v. U.S. and the case went to the Supreme Court where the eighth circuit judgment was vacated and remanded.
The Supreme Court found that a district court could impose a lesser sentence solely upon the policy rejection underlying a particular guideline, stating:
“The Court thus established that even when a particular defendant in a crack cocaine case presents no special mitigating circumstances—no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation—a sentencing court may nonetheless vary downward from the advisory guideline range. The court may do so based solely on its view that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates ‘an unwarranted disparity within the meaning of §3553(a),’ and is ‘at odds with§3553(a).’”
With so much emphasis on the shared view that the guidelines were not practical and there was a need for indeterminate sentencing, after Booker, district courts had only sought to lower sentences. But as stated in United States v. Cavera, “sentencing discretion is like an elevator in that it must run in both directions.” In U.S. v. Cavera, the Court of Appeals for the Second Circuit established what would henceforth govern sentencing in its circuit. The case affirmed a district court judge’s decision to enhance a sentence based solely on the geographical location of the crime, New York City, a factor that had never been considered and was nowhere to be found in the Sentencing Guidelines. Cavera plead guilty to conspiracy to deal in and transport firearms. But at sentencing the judge felt that the guidelines did not sufficiently account for the seriousness of trafficking firearms in a densely populated city with stringent gun laws and sentenced the defendant to six months more than the guideline range.
Initially, a three judge appellate panel reversed, but before the case went back to the district court for resentencing, a majority of the judges on the full court (en banc) decided to hear the case again and came to a different conclusion. “The majority, by a 10-4 margin, held that the district court had sufficiently justified its upward variance . . . The court held that sentencing courts have ‘very wide latitude’ to decide the proper punishment for a particular offense and offender. [I]t is ‘emphatically clear that the Guidelines are guidelines—that is, they are truly advisory.’” The sentence increase held because the district court had reasonably supported the “geographic” enhancement, and as a result the Second Circuit clearly established the district court’s capacity to sentence outside the guidelines.
Because of the fact that the guidelines were fashioned to be hard on crime through severe penalties, it is no surprise that the majority of non-guidelines sentences are below the guideline range, not above. But the important point to remember is that judges now have the discretion to sentence defendants appropriately. “Sentencing judges can now do what they are well-suited to do: use their experience and judgment in determining what price a particular defendant should pay for his or her crime, aided by the guidelines but in no sense governed by them, with very deferential appellate review.” Sadly, however, there will still be judges who only feel comfortable imposing sentences according to the guidelines.
It has been a long struggle. The cookie cutter approach to sentencing damaged lives. Defendants who received ten and twenty year sentences before Booker was decided are still in jail. But while guideline die-hards argue that discretionary sentencing will cause unjust and excessive disparities, the Supreme Court found that disparities are “a necessary cost” of Booker.
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U.S. v. Booker, 125 S. Ct. 738 (2005)
U.S. v. Rattoballi, 452 F.3d 127, C.A.2 (N.Y.)
Rita v. U.S., 127 S.Ct. 2467, 2007
Id.
U.S. v. Kimbrough, 05-4554, EDVA, 2005
Kimbrough v. US, 128 s.ct. 558 (2007).
US v. Spears, 533 F.3d 715 (8th Cir, 2008)
Spears v. U.S., 129 S.Ct. 840, 2009. (Opinion of Colloton, J.)
Cavera, 2008 WL 5102341
US v. Cavera, 550 F.3d 180, 2nd Cir. 2008
New York Law Journal, December 17, 2008, vol. 240-no.117, “‘Cavera,’ ‘Adelson’: Second Circuit Gives Truly Advisory Guidelines, by Vinegrad and Bloom.
Id.
Kimbrough v. US, 128 s.ct. 558 (2007).