111TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERSAN OVERVIEW OF THE UNITED STATES SENTENCINGGUIDELINES*
Rya W. Zobel**
I. INTRODUCTION
In the United States, sentencing rules
have historically been influenced by four
objectives: punishment, incapacitation,
rehabilitation, and deterrence. Over time,
one or another of these objectives has
gained or diminished in importance. The
Sentencing Reform Act of 1984 created theUnited States Sentencing Commission andauthorized it to promulgate sentencing
guidelines for the federal courts. With one
stroke, the U.S. Congress replaced anindeterminate sentencing system - basedon the goal of rehabilitation andimplemented through parole release - witha determinate system emphasizing
deterrence and just deserts. This new
guidelines system was the result of morethan a decade of reform efforts, and theunlikely coalition of liberals andconservatives in the United States
Congress. When he introduced thelegislation in 1983 that ultimately resulted
in the 1984 Sentencing Reform Act, Senator
Edward Kennedy stated:“Federal criminal sentencing is indesperate need of reform. ...The
current system is actually a nonsystem. It is unfair to the defendant,
the victim, and society. It defeats thereasonable expectation of the public* I wish to acknowledge the significant contribution
to this paper of David E. Rauma, Senior Research
Associate at the Federal Judicial Centre,
Washington D.C..
**U.S. District Court judge for the District ofMassachusetts; Director, Federal Judical Centre,
United States of America.

that a reasonable penalty will be
imposed at the time of the defendant’s
conviction, and that a reasonablesentence actually will be served.1”
This was not the first time that Congress
had turned its attention to federal
sentencing, nor would it be the last. The
legislation introduced by Senator Kennedy
in 1983 was substantially the same as thelegislation that the Senate had agreed toin 1979, which in turn was based on earlier
Senate bills, one introduced in 1974 andanother by Senator Kennedy in 1975, tocreate a judicial commission to promulgate
sentencing guidelines. This round offederal sentencing reform can be traced
back to 1966 when, upon therecommendation of President Johnson,
Congress created the National Commission
on Reform of Federal Criminal Laws. This
commission, commonly known as the
Brown Commission, after its chair,
Edmund G. Brown Sr., former governor of
California, issued its final report in 1968
and Congress began hearings on the reportin early 1971.2 Legislation based upon the
Brown Commission’s recommendations fora model criminal code was introduced in
1973, but was not passed by Congress.
Not long after Congress began its
hearings on the Brown Commission report,
Judge Marvin E. Frankel3 gave a series of1

129 Congressional Record p. S2090 (Mar. 3, 1983)(daily ed.).
2 National Commission on Reform of Federal
Criminal Law, Final Report (1968).
3 U.S. District Judge for the Southern District of New
York (since retired).

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RESOURCE MATERIAL SERIES No. 55
lectures, later published, in which heproposed the creation of a sentencing
commission to develop rules forsentencing.4 In Judge Frankel’s proposal,
these sentencing rules would bepresumptively applied, but could be
appealed to higher courts. This proposal
became arguably the most influential
concept in sentencing reform for the next
decade or more. In the 1970’s, Minnesota
and Pennsylvania created sentencing
commissions and several other states,
California for example, replaced theirindeterminate sentencing systems withstatutorily specified sentencing rules. By
1996, 20 states had sentencing guidelines
and new sentencing commissions were atwork in three more.
Judge Frankel’s proposals, following
soon after the Brown Commission and theCongressional hearings on its report,
helped form the basis for the legislation
introduced in Congress during the mid1970s that would eventually result in the
Sentencing Reform Act of 1984. Along theway, this idea of a sentencing commission
gained adherents, each with different goals
who viewed the concept of an
administrative sentencing agency as asolution to the problems each saw in federal
sentencing. Early proponents, such as
Senator Kennedy, were concerned about
sentencing from a civil rights perspective.
They were troubled by the potential for
discrimination and disparity in sentencing
within an indeterminate sentencing
system. Sentencing guidelines would
eliminate the possibility of discriminationin sentencing by the application ofsentencing rules. Later proponents wereconcerned about rising crime rates andwhat they viewed as the leniency of thefederal courts. A sentencing commission
could address this problem by crafting
sentences designed specifically to deter
crime and deliver punishment withc e r t a i n t y. B y 1 9 7 9 , l i b e r a l s a n d

358

conservatives in the Senate, led by
Senators Kennedy and Thurmondrespectively, had agreed to the reform
package, but it was not until 1984 that theHouse of Representatives passed thelegislation and President Reagan signed it
into law.
The remainder of this paper will discuss
federal sentencing before and after thefederal sentencing guidelines that went
into effect on November 1, 1987. The next
section will examine pre-guidelines
sentencing and how it became an impetus
for reform. Following that will be a sectionthat examines how the federal sentencing
guidelines operate in practice. The next
section will discuss some real and potential
impacts of the federal sentencing
guidelines. The final section will looktoward the future and what might be instore for federal sentencing.
II. FEDERAL SENTENCING PRIORTO THE GUIDELINES
Before the introduction of the sentencing
guidelines in 1987, sentencing in federal
district courts was based on anindeterminate sentencing system. Federal
judges had the discretion to sentence
within, sometimes very broad, statutory
ranges. An offence such as bank robbery
had a statutory maximum sentence of 20
years, with no minimum sentence.5 If theoffender assaulted someone in the courseof the robbery, or jeopardized someone’s lifeby the use of a dangerous weapon, themaximum sentence was increased to 25
years.6 The judge thus had the discretion
to impose on the bank robbery defendants
4

Marvin E. Frankel, Lawlessness in Sentencing, 41
U. Cinn, L. Rev. 1 (1972). See also: Marvin E.
Frankel, Criminal Sentences: Law Without Order(1972).
5 18 USC § 2113(a) (1984).
6 18 USC § 2113(d) (1984).

111TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
any sentence from straight probation to 20
and 25 years incarceration, respectively.
Very few offences carried minimum
sentences, and those that did were often
specified as “any term of years.” Thesentence imposed by the court could not be
appealed, nor did the court have to specify
the reasons for the sentence.
The heart of this indeterminate system
was parole release, created in the federal
system in 1910. Offenders sentenced toprison could be released on parole
supervision before the expiration of theirterm. The parole release date was set by
the U.S. Parole Commission according to
the imposed sentence and the Parole
Commission’s assessment of the offender’sreadiness for release. By statute, anoffender sentenced to prison for a fixed
term greater than one year would be
eligible for release on parole after serving
either one-third of the sentence, or ten
years of a life sentence or a sentence
greater than 30 years. 7 However, atsentencing, the court could also specify aminimum sentence to be served before
parole eligibility, if that minimum was onethird or less of the maximum also specified
by the court.8 The court could also specify
a maximum term and leave thedetermination of parole release entirely to
the Parole Commission. 9 In 1974, theParole Commission began to use its own
parole decision-making guidelines forrelease decisions, and the Parole
Commission and Reorganization Act of1976 required that parole guidelines beused for all parole release decisions.10
It is in this context that the Congress
began to consider an alternate system ofdeterminate sentencing. The report of the
Senate Judiciary Committee on theoriginal 1983 legislation described theprevailing view in Congress of federal
sentencing:“In the Federal system today, criminal
sentencing is based largely on an
outmoded rehabilitation model. The
judge is supposed to set the maximum
term of imprisonment and the Parole
Commission is to determine when to
release the prisoner because he is“rehabilitated.” Yet almost everyone
involved in the criminal justice system
now doubts that rehabilitation can be
induced reliably in a prison setting, and
it is now quite certain that no one canreally determine whether or when aprisoner is rehabilitated. Since thesentencing laws have not been revised
to take this into account, each judge isleft to apply his own notions of the
purposes of sentencing. As a result,every day federal judges mete out anunjustifiably wide range of sentences
to offenders with similar histories,
convicted of similar crimes, committed
under similar circumstances.11 ”
Although rehabilitation would remain astated goal of federal sentencing after the
introduction of sentencing guidelines andthe abolition of parole,12 the view remainedthat the rehabilitative model underlying
American criminal justice efforts, since theearly part of this century, was wrong. By
the late 1970’s, many criminal justiceexperts in the United States had come tothe conclusion that the rehabilitation of
offenders was uncertain at best. An
influential review of the research on
rehabilitation programs in the federal andstate criminal justice systems, publishedin 1975, concluded that “nothing works.”13
The authors of this review found no7

18 USC § 4205(a) (1984).
18 USC § 4205(b) (1984).
9 Ibid.
10 Pub. L. No. 94-233, 90 Stat. 219 (May 14, 1976).
11 Senate Commission on the Judiciary, Sentencing
Reform Act of 1983, S. Rep. No. 98-223, at 34.
12 18 USC § 3553(a)(2) (1998).
8359

RESOURCE MATERIAL SERIES No. 55
systematic evidence that specific types ofcorrectional treatments reduced
recidivism.
An equal or greater skepticism existed
about the indeterminate sentence practices
that typically were used to implement thismodel. Indeterminate sentencing decisions
and parole release decisions were, many
experts felt, too often abused or were too
often poorly made. Judges and paroleboards had wide latitude to make decisions
about imprisonment. The end result, many
felt, was a tremendous potential for
discrimination and disparity in sentencing
practices, and uncertainty for allconcerned, including prosecution anddefence attorneys, judges, and offenders.
As Senator Kennedy stated, there could be
no reasonable expectations about thecertainty and length of punishments.
How serious was the problem ofsentencing disparity? A Special Panel on
Sentencing Research, created in 1980 at
the request of the National Institute ofJustice and the National Academy of
Sciences, assessed the quality of existing
sentencing research. With regard tosentencing disparity and discrimination,
the Panel found that the research findings
on discrimination in sentencing weremixed.14 Some studies showed evidence of
racial, socio-economic, and/or gender
discrimination, although most studies tothat point had one or more methodologicalproblems that cast doubt on theirconclusions. In contrast, the research on
disparity in sentencing decisions could
systematically account for only a small
amount of the variation in judicial
decisions. This result is not surprising,since an indeterminate system addresses
unique aspects of each offender’s situation.
The Panel noted that, stripped of its
justification for rehabilitative purposes,
this variation in sentencing had become arationale for reform efforts.

360

III. THE SENTENCING REFORMACT OF 1984
A. The Structure of the UnitedStates Sentencing Commission
The Sentencing Reform Act of 1984
established the United States Sentencing
Commission, a panel of sentencing experts
appointed by the President of the UnitedStates. Judge Frankel’s original proposal
called for a judicial commission to set
sentencing rules. The Sentencing Reform
Act specified that the Commission would
have seven voting members, one of whomwould be the chair of the Commission. The
Attorney General of the United States, or
his/her designee would be an ex officio, nonvoting member of the Commission. The
voting members would be appointed for sixyear terms. At least three of the voting
members had to be federal judges
recommended to the President by the
Judicial Conference of the United States.
No more than four of the voting members
could be members of the same politicalparty.
The original set of Commissioners
consisted of one district court judge, also
designated as the chair; two circuit court
judges, a former member of the UnitedStates Parole Commission; and threeacademics. The original Commissioners
were appointed for staggered terms of two,four, and six years, in order to promote
continuity by preventing complete turnoverin membership every six years. As theoriginal Commissioners left or their terms
expired, the number of judges on the panel
has been maintained.
13 Douglas Lipton, Robert Martinson, & Judith Wilks,

The Effectiveness of Correctional Treatment: A
Survey of Treatment Evaluation Studies (1975).
14 Alfred Blumstein, Jacqueline Cohen, Susan E.
Martin, and Michael H. Tonry (eds.), Research on
Sentencing: The Search for Reform (1983) at 64.

111TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
B. Directives to the Sentencing
Commission
When the Sentencing Commission began
its work in 1985, its task was to promulgate
guidelines that meet the purposes ofsentencing outlined in 18 USC § 3553(a)(2):just punishment, deterrence,incapacitation, and rehabilitation. In
outlining the tasks of the Commission,
Congress had three goals: honesty,
uniformity, and proportionality. Honesty
in sentencing would be achieved by the
specification of the sentence at the time ofsentencing. The indeterminate sentencing
system that guidelines had replaced gave
the authority for determining the time
served in prison to the United States Parole
Commission. An offender sentenced toprison would not know the exact length of
his/her incarceration until after a parole
hearing, and that hearing might not occur
until the offender had served a third of thesentencing imposed by the court. The
Sentencing Reform Act specified that thefull term of imprisonment imposed by the
court would be served, minus up to 15
percent of the sentence that could be
subtracted for good behavior, in prison.15
Uniformity would be achieved by the
avoidance of unwarranted sentencing
disparity among offenders with similar
criminal records convicted of similar
criminal offences.16 Although there wasscant empirical evidence on which to baseit, there was a widespread belief thatfederal sentencing practices varied widely
between judges and that these practices
were sometimes based on illegitimate
factors such as gender and race. 17 To
achieve this goal of uniformity, Congress
gave the Sentencing Commission a numberof directives. For one, Congress directed
the Commission to ensure that theguidelines and their policy statements beentirely neutral with regard to race,
gender, national origin, creed, and socioe c o n o m i c s t a t u s . 1 8 F u r t h e r, t h eCommission was instructed to at leastconsider whether certain offences andoffender characteristics are relevant tosentencing. The Commission’s response tothis directive is discussed in a later section.
Congress specified, however, that theguidelines should reflect the “general
inappropriateness” of considering an
offender’s education, vocational skills,
employment record, family ties andresponsibilities, and community ties whenrecommending a prison term or its length.19
Proportionality would be achieved by asystem of guideline sentences thatrecognized and incorporated differences inboth an offender’s criminal behavior andhis/her criminal background. In otherwords, punishment should be proportional
to the real or potential harm of an offence
and to the offender’s history of criminal
behavior. Congress gave no detailed
instructions as to types of sentences nor
their lengths, but did give the Commission
guidance as to what it should consider
during the development of the guidelines.
Consistent with the goal of proportionality,
Congress directed that the guidelines
should: (1) specify “substantial” terms of
15 18 USC § 3624(b) (1998).
16 28 USC § 991(b)(1) (1998).
17 One of the studies most frequently cited as evidence

for sentencing disparity is a study done by theFederal Judicial Center: Anthony Partridge andWilliam B. Eldridge, The Second Circuit Sentencing
Study, A Report to the Judges (1974). Fifty judges
in the second circuit were given the same 20 offence/
offender scenarios and asked to impose a sentence
for each. The study showed quite a bit of variation,
particularly for the most serious offences. For
example, the range for bank robbery was 5 years
to 18 years in prison, with a median sentence of 10
years. The study did not examine the possible roleof illegitimate factors in these judges’ sentencing
decisions.
18 28 USC § 994(d) (1998).
19 28 USC § 994(e) (1998).

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RESOURCE MATERIAL SERIES No. 55
imprisonment for certain offenders, suchas those with prior convictions or who
committed the offence while on pretrial
release20; (2) reflect the “appropriateness”
of imposing incremental penalties for
multiple offences, whether committed at
different times or as part of the same course
o f c o n d u c t 21; a n d ( 3 ) r e f l e c t t h e“inappropriateness” of imposing
consecutive penalties for conspiracy tocommit an offence and the actual offence.22
At the same, the Commission was
instructed to take into account the capacityof the penal facilities and other services in
the federal system and makerecommendations, if necessary, for changes
or expansion needed as a result of theguidelines. Congress tempered thissomewhat by also directing that theguidelines be formulated to minimize thepossibility that the federal prison
population will exceed the capacity of thefederal prison system.23
C. The Development of Empirical
Guidelines
In the absence of any prior sentencing
rules, the development of a sentencing
guideline system is a daunting task,
particularly for a criminal code as diverseas the Federal Code. Congress stated thatthe starting point for guidelines
development should be the averagesentences imposed before the creation of
the Commission, including the averagetime served for offenders sentenced toprison.24 Congress prefaced this instruction
with the directive that the Commission
should ensure that the guidelines reflect
the fact that, in many cases, thesesentences do not accurately reflect theseriousness of the offender’s crime.25 As aresult, the Commission’s starting point wasan assessment of then-current sentencing
practices in the federal courts, including
release decisions by the United States
Parole Commission. As part of thisassessment, the Commission collected data362

on a sample of 10,500 cases sentenced in
the federal courts between October 1, 1984
and September 30, 1985. From theAdministrative Office of the U.S. Courts,
the Commission obtained automated datathat included offence descriptions,i n f o r m a t i o n a b o u t e a c h o f f e n d e r ’s
background and criminal history, themethod of disposition (i.e., guilty plea,
conviction after trial), and the sentenced
imposed. To augment this data with more
complete offence and offender information,
the Commission requested and received
information from the Probation Division of
the U.S. Courts that included thepresentence investigation reports preparedfor judges by U.S. Probation Officers.26
Finally, the Commission obtained thisinformation from the Bureau of Prisons on
offenders in the sample who had beensentenced to a term of imprisonment:(1) Time actually served in prison, or(2) Time scheduled to be served inprison if a parole date had been set,or(3) An estimate of the time to be servedin prison if no parole date had beenset.
In order to have an empirical basis fordeveloping the guidelines, the Commission
analyzed this data to answer thesequestions:(1) How much time is served on average
20 28 USC § 994(i) (1998).
21 28 USC § 994(l)(1) (1998).
22 28 USC § 994(l)(2) (1998).
23 28 USC § 994(g) (1998).
24 28 USC § 994(m) (1998).
25 Ibid.
26 U.S. Probation Officers are employees of the federal

courts. Their duties include the supervision of
offenders on probation and the preparation of
investigative reports for use by judges at
sentencing.

111TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
by convicted federal offenders?
(2) How does this average vary withcharacteristics of the offence, theoffender’s background and criminal
history, and method of disposition?
(3) How much of this variation cannot
be attributed to the offence and theoffender ’s background (i.e., howmuch disparity exists)?
The goal of this analysis was not toreplicate judicial decision-making, but toobtain information about the range ofjudges’ sentencing practices, on an offenceby-offence basis. In particular, theCommission would have information about
the relationship between offence, offendercharacteristics and sentences imposed on
one hand, and time served on the other. At
the very least, it was expected that thisanalysis would provide material for policy
deliberations.
At the same time the Commission was
analyzing the sentencing data, it collected
information and input from a wide variety
of other sources. During the guidelines
development period, the Commission
conducted public hearings in Washington
D.C. and in other regions of the UnitedStates, solicited written comments fromhundreds of criminal justice practitioners
and other interested parties, andestablished advisory groups of federal
judges, U.S. attorneys, federal publicdefenders, U.S. probation officers, state
district attorneys, private defence
attorneys, and academics. The
Commission’s goal was to involve as many
interested parties as possible, so as tobetter inform its policy deliberations.
D. The Commission’s Policy
Decisions
1. The Relevance of Offence and OffenderCharacteristics
Congress gave the Sentencing
Commission broad authority to develop a

guideline system, although, as notede a r l i e r, i t a l s o g a v e a g o o d m a n y
instructions as to how those guidelines
should function. Among otherconsiderations, the Commission was todecide the relevance of certain offences andoffender characteristics for sentencing:
Offence Characteristics27(1) Grade of the offence (e.g., misdemeanoror felony);(2) A g g r a v a t i n g a n d m i t i g a t i n gcircumstances;(3) The nature and degree of harm causedby the offence;(4) The community view of the gravity ofthe offence;(5) The public concern generated by theoffence;(6) The potential deterrent effect of aparticular sentence for the offence; and(7) The current incidence of the offence inthe community and in the nation as awhole.
Offender Characteristics28(1) Age;(2) Education;(3) Vocational skills;(4) Mental and emotional condition as a
mitigating factor or as otherwise
relevant;(5) Physical condition, including drug
dependence;(6) Employment record;(7) Family ties and responsibilities;(8) Community ties;(9) Role in the offence;(10)Criminal history; and(11)Dependence upon criminal activity fora livelihood.
The Sentencing Commission decided
that, with the exception of the role in theoffence, criminal history, and dependence
27 28 USC § 994(c) (1998).
28 28 USC § 994(d) (1998).

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upon criminal activity for a livelihood, noneof the offender characteristics listed above
are relevant to the purposes of sentencing.
The offence characteristics were, however,incorporated in various ways into thestructure and substance of the sentencing
guidelines ultimately issued by theCommission.
2. Real vs. Charged Offence Sentencing
The guidelines issued by theCommission in 1987 are described as amodified real-offence sentencing system,
modified by incorporating some elementsof a charge-based sentencing system. A
pure charge-based system would tie thesentence directly to the charges on which
the offender was convicted. To the extent
that these charges captured features of theoffence (e.g., assault with a deadly weapon),these features would be reflected in
gradations in the sentence. In contrast, apure real-offence system would catalog theharms caused by the offence conduct, andthe offender’s sentence would be based on
those harms and aspects of the offence
conduct regardless of the specific conviction
charges.29 One benefit of such a system,compared to a charge-based system, would
be its potential effect on prosecutorial
discretion. Prosecutors would not be able
to shape sentences directly through theircharging practices. Rather, the court wouldbase the sentence on the offence as it
occurred.
A drawback of the real-offence system isthe level of complexity and detail it canrequire to represent a set of offences withan inventory of generic harms, particularlyin the federal system’s very diverse
criminal code. Before issuing guidelines
in 1987, the Sentencing Commission
considered a real-offence system but
concluded that it was too complex; that itrisked reintroducing the sentencing
disparity Congress sought to eliminate;that it jeopardized the certainty of364

punishment; and that it might mute theguidelines’ deterrent effects. The modified
real-offence system that the Commission
did adopt is organized around statutorilydefined offences, just as a charge-based
system would be, but catalogs on an
offence-by-offence basis the harms that are
the most common for each offence. This
guideline system goes on to address a setof more generic features of criminal
offences, such as the offender’s role in theoffence, the nature of the victim,
obstruction of justice, and multiple countsof conviction. For example, robbery is a
category in the sentencing guidelines, as
defined by statute, and the robbery
guidelines enable the sentencing judge totake account of the most common featuresof robbery. A more detailed example will
be described later, including the moregeneric features, such as the role in theoffence, but here are some of thecharacteristics of a robbery that areincorporated into the robbery guideline:(1) Did the offender have a weapon?
(2) How was that weapon used?
(3) Was a victim injured?
(4) Was a victim taken hostage or
abducted?
(5) What was the value of the property
taken in the robbery?
One of the more controversial aspects ofthis modified real-offence system is theconcept of relevant conduct. Relevant
conduct is what makes this a real-offence
rather than a charge-based system. Here
29 Offence conduct may be incorporated into a real-

offence system in several ways. For example, afraud of $1,000 could be treated as a more serious
offence if the victim was considered especiallyvulnerable because of age or infirmity. Alternatively,
the offence conduct could increase the potential
harm, such as in a sophisticated scheme that, before
it was detected, was intended to defraud large
numbers of victims.

111TH INTERNATIONAL SEMINAR
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is the definition of relevant conduct in the1998 Sentencing Guideline Manual:30(1) (a) all acts and omissions committed,
aided, abetted, counselled,commanded, induced, procured, or
willfully caused by the defendant;and(b) in the case of a jointly undertaken
criminal activity (a criminal plan,
scheme, endeavor, or enterprise
undertaken by the defendant inconcert with others, whether or not
charged as a conspiracy), allreasonably foreseeable acts andomissions of others in furtheranceof the jointly undertaken criminal
activity, that occurred during thecommission of the offence ofconviction, in preparation for that
offence, or in the course of
attempting to avoid detection or
responsibility for that offence;(2) solely with respect to offences of acharacter for which §3D1.2(d) would
require grouping of multiple counts, allacts and omissions described in
subdivisions (1)(a) and (1)(b) above thatwere part of the same course of conduct
or common scheme or plan as theoffence of conviction;(3) all harm that resulted from the acts
and omissions specified in subsections(a)(1) and (a)(2) above, and all harmthat was the object of such acts andomissions; and(4) any other information specified in theapplicable guideline.
Relevant conduct, as defined in thesentencing guidelines, takes the offender’saccountable behavior beyond that
represented by the conviction charges, toinclude for example, the behavior of others
in jointly undertaken criminal activity andthe criminal behavior for which theoffender was neither charged nor convicted.
For example, an offender could be charged

with multiple counts of larceny, totalling
several thousand dollars but plead guilty
to a single count of larceny involving lessthan $500. At sentencing, the relevant
conduct standard would have the judge
total all of the losses, including those for
dropped counts, and use that total amountto determine the sentence. The guidelines
for other offences such as drug trafficking
also total the harm for convicted, dropped
and uncharged counts, to arrive at a totalharm.
3. Uniformity and Proportionality
The tension between the goals of
uniformity and proportionality is one of thekeys to understanding the choices made by
the United States Sentencing Commission
concerning the structure and content of thesentencing guidelines. Too much of either
uniformity or proportionality would be at
the expense of the other. In a system of
uniform sentences where, all offenders
convicted of bank robbery receive a fiveyear sentence and all offenders convictedof fraud receive a three-year sentence,
could avoid sentencing disparity andeliminate many or most differences
between judges. But that uniformity could
undermine proportionality by, for example,
ignoring gradations in the harm caused by
the offence, the offender’s criminal history,or aggravating and mitigating factors suchthe offender’s role in the offence. While asystem of proportional sentences would be
important for the purposes of deterring
more serious criminal behavior andrepetitive criminal behavior, too muchvariation could undermine the effort to
reduce disparity in sentencing.
The analysis of the 10,500 cases provided
one basis for negotiating between these twogoals. The Commission used the empirical
data to: (1) set narrow sentence ranges that
centered on the average current sentencing
30 USSG §1B1.3 (1998).

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RESOURCE MATERIAL SERIES No. 55
practices for individual offences; and (2)identify relevant aggravating factors, suchas monetary loss or injuries to victims, andtheir relationship to the sentence. Where
the data for individual offences wasinconclusive, the Commission readpresentence investigation reports andconsulted with practitioners and U.S.
probation officers to develop a rationale forsetting sentencing ranges. In some otherinstances, such as for white-collar and drug
offences, the Commission had received
directives from Congress to increase
penalties over current practice, but theCommission still used data analyses to
identify relevant aggravating factors forthese offences.
4. Probation and Supervised Release
Before the guidelines, judges had broad
authority to sentence offenders toprobation as a means of controlling andsupervising their conduct, without
confinement. The Sentencing Commission,
through the guidelines, curtailed the useof probation. This was a response by theCommission to the Congressional directive
to ensure that the guidelines reflect the factthat pre-guideline sentences do not always
accurately reflect the seriousness of theoffence. The Commission accomplishedthis through the structure of the guideline
sentencing table, which will be describedin more detail in a later section. The result
was that fewer offenders would be eligible
for probation. During the statistical year
1987,31 just prior to the effective date of theguidelines, 36.5 percent of the 43,942
offenders convicted in federal courts
received probation as part of theirsentence.32 A decade later, during fiscal
year 1997, 21.2 percent of the 55,648
convicted offenders received a probation
sentence.33
The Sentencing Reform Act of 1984
abolished parole release from prison, andtherefore parole supervision after release,366

but Congress directed the Sentencing
Commission to consider whether a term of
imprisonment should include a term ofsupervised release.34 The Commission
decided that a term of supervised releaseshould be imposed in all cases with asentence of one or more years of
imprisonment and in all other cases at the
court’s discretion.35 The length of the termof supervised release can vary from one to
five years, depending on the seriousnessof the conviction offence.36 Unlike parole
release, the term of supervised release isserved after the completion of the full termof imprisonment, less good time credits.
The released offender is subject to anumber of mandatory conditions37 and issupervised by a U.S. Probation Officer who
reports to the sentencing judge.
5. Mandatory Minimum Sentences
While the Sentencing Commission was
creating the sentencing guidelines,
Congress passed the Firearm Owner’s
Protection Act38 and the Anti-Drug Abuse
Act of 1986.39 The former instituted a new,mandatory 5-year penalty for the use of a
firearm during the commission of a drug
felony; the latter added mandatory
31 Until 1991, the Administrative Office of the U.S.

Courts compiled data on a statistical year basis,from July 1 to June 30 of the following year.
Statistical year 1987 refers to the period July 1,
1986 to June 30, 1987. In 1992, the Administrative
Office switched to fiscal year reporting. Fiscal year
1997 refers to the period October 1, 1996 to
September 30, 1997.
32 Administrative Office of the United States Courts,
Annual Report of the Director (1987) at 282.
33 Administrative Office of the United States Courts,
Annual Report of the Director (1997) at 217.
34 28 USC § 994(a)(1)(C) (1998).
35 USSG §5D1.1 (1998).
36 USSC §5D1.2 (1998).
37 USSG §5D1.3.
38 Pub. L. No. 99-308, 100 Stat. 449 (1986).
39 Pub. L. No. 99-570, 100 Stat. 3207 (1986).

111TH INTERNATIONAL SEMINAR
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minimum penalties that tied the minimum
penalty for certain drug offences to theamount of drugs involved in the offence.
Two years later, in the Omnibus Anti-Drug
Abuse Act of 1988, Congress enacted
additional penalties for drug offences,including a five-mandatory minimum
sentence for possession of 5 grams of crack
cocaine.40
This was not the first time thatmandatory minimum penalties for drug
offences had existed in the federal system.
The Narcotic Control Act of 195641 createdmandatory ranges for most drug
importation and distribution offences.
Judges were required to select a specificsentence within the range, and parole
release was prohibited for the covered
offences. Congress repealed most of thesemandatory minimum sentences after
finding that the sentence increases had notbeen shown to reduce the number of druglaw violations.42
The creation of mandatory minimum
sentences so soon after the Sentencing
Reform Act clearly conflicts with the goalof the guidelines created by a panel ofexperts. The Commission’s response
during the guideline development process
was to incorporate the mandatory
minimum penalties as baselines in the
drug guidelines. The drug guidelines tie
penalties to drug amounts as a measure ofharm, and the drug amounts that trigger
mandatory minimum penalties (e.g., 5
grams of crack cocaine) result in an
identical or greater guideline sentence.
6. Just Deserts vs. Crime Control
As noted earlier, the 1984 Sentencing
Reform Act elevated the notion ofpunishment over the then prevalent
objective of rehabilitation. Still, one
philosophical dispute the Sentencing
Commission had to address involved the
purposes of punishment. Some observers

argue that punishment should follow a“just deserts” model, in which punishment
is keyed to the harm caused by the offence
and the offender’s culpability. Others argue
that the goals of deterrence andincapacitation should take precedence insentencing, that the primary purpose ofpunishment is the control of crime andsentences should be designed to achieve
this purpose. The Commission’s solution
to this debate was to declare that theapplication of either model would achieve
the same results in most sentencing
decisions.
IV. THE FEDERAL SENTENCINGGUIDELINES
A. Structure
The guidelines are structured according
to broad offence categories such as offences
against the person, property offences, drug
offences, fraud, and a variety of otheroffences that are unique to the federal
system (e.g., immigration and national
defence). Most of these categories arebroken down further into major
subcategories such as homicide, robbery,and drug trafficking. These sub-categories
are linked to specific criminal statutes andutilize a scoring system for determining theharm caused by the offence and, ultimately,
the sentence the convicted offender will
receive. Under this scoring system,
offences are assigned levels based on
specific offence characteristics such bodily
harm to victims, financial loss, and themethods used to commit the offence.
B. An Example: Bank Robbery
1. The Adjusted Offence Level
Consider this example: an offenderconvicted of one count of bank robbery (1840 Pub. L. No. 100-690, 102 Stat. 4377 (1988).
41 Pub. L. No. 84-728, Title I, Sec. 103. 70 Stat. 651,

653-55 (1956).
42 S. Rep. No. 613, 91st Cong., 1st Sess. 2 (1969).

367

RESOURCE MATERIAL SERIES No. 55
USC § 2113) would be sentenced under therobbery guidelines (USSG §2B3.1). The
guideline calculation begins with a baseoffence level of 20. An unarmed robbery ofa person, with no harm to the victim and aloss of no more than $10,000, is assigned
an adjusted offence level of 20. No
enhancements are made to the base offence
level. Because the example is a bankrobbery, 2 levels are added for robbery of afinancial institution. If the offender had aweapon, 3 to 7 levels are added dependingon the nature of the weapon and its use
during the robbery. Three levels are added
if a dangerous weapon (e.g., a firearm or aknife) was possessed, displayed, orbrandished. More levels are added torepresent greater levels of threat, up to 7
levels if the weapon was a firearm and it
was discharged during the robbery. Bodily
harm to victims adds 2 to 6 levels
depending on the degree of harm, but the
combined adjustment for weapon use andharm to victims is capped at 11 levels in
the robbery guideline. Financial loss adds
0 to 7 levels, again depending on theamount of loss. If a victim was taken
hostage to facilitate escape, another 4
levels are added to the total. Thus, a bankrobbery in which the offender fired a gun,wounded a victim, stole $500,000 and tooka hostage will have an adjusted offence
level of 41.
Other categories of offences are
structured similarly, with a base offence
level and adjustments to that levelaccording to specific offence behaviors.
Most of these adjustments are increases,
because the base offence level is intended
to describe a basic or unsophisticated formof an offence, with minimal harm.
Occasionally, an adjustment will bestatutory and not related directly to theoffence behavior, or the base offence level
will itself be scaled. The drug trafficking
guideline assigns a base offence levelaccording to the amount of drugs involvedin the offence. Multiple counts of368

convictions are handled by “grouping”
related counts, selecting the group with thegreatest adjusted offence level, and making
adjustments to that level based on the
additional groups of counts.
Once the conviction offence has beenscored according to its specific features,
further adjustments are made for moregeneral offence features. These
adjustments, which may result in increases
or decreases in the adjusted offence level,
and which may be applied to any offence,are for the nature of the victim (e.g., wasthe victim vulnerable?), the offender’s rolein the offence (e.g., organizer as opposed
to a minimal participant), obstruction ofjustice, and the offender’s acceptance of
responsibility for the criminal behavior.
Further adjustments are made to theoffence level for offenders defined bystatute as career offenders 43 or whose
livelihood is derived from criminal conduct.
For example, an offender with two priorfelony convictions for drug offences orcrimes of violence may have his or her
adjusted offence level increased if that levelis below levels specified in the guidelines.44
2. The Criminal History Score
The next step is the scoring of theoffender’s criminal history. The calculationof the criminal history score is done on thebasis of the length of prior sentences ofimprisonment (not the amount of time
actually served) in any jurisdiction, local,
state or federal. For example, 3 points areadded for each prior sentence exceeding one
year and one month; 2 points are added foreach shorter sentence of imprisonment thatis of at least 60 days; and 1 point is added
for each sentence of imprisonment that did
not receive 2 or 3 points. A sentence is
43 21 USC § 841 (1998). See also 28 USC § 994(h) for

directives to the Commission regarding thesentencing of career offenders.
44 USSG §4B1.1 (1998).

111TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
counted only if that sentence was imposed
no more than fifteen years prior to thebeginning of the offence of conviction.
Points are also added if :(1) the offence wascommitted while the offender was under
any type of criminal justice sentence,
including not only imprisonment but also
any form of community supervision; (2) if
the offence was committed within two years
after release from imprisonment on asentence worth 2 or 3 points; or (3) if theoffender was convicted of a crime of violence
whose sentence did not receive any points
as described above.
C. The Sentencing Table
The calculation of the adjusted offence
level and of the criminal history score are
outlined in a presentence report prepared
for the sentencing judge by a U.S. probation
officer. This report is typically shared with
the U.S. Attorney’s Office and defense
counsel, both of whom may dispute theprobation officer’s recitation of facts andapplication of the guidelines. These
objections, if not resolved prior tosentencing, are included as appendices tothe report. The sentencing judge will,
either in a separate hearing or during thesentencing hearing, rule on any disputes.
After determining in court the final offence
level and criminal history score, the judge
uses the sentencing table in Annexure 1 todetermine the type of sentence possible andits length.
The sentencing table has twodimensions: offence levels are listed on thevertical axis and criminal history
categories (i.e., groupings of criminal
history scores) are listed across thehorizontal axis. Within each of the table’s
cell is a range of months of imprisonment.
When formulating the table, theSentencing Commission followed threeprinciples. First, the ranges in adjacentcells overlap. The goal was to reduce thepotential for litigation over the exact

guideline application. If the same sentence
could be have been imposed whether theoffender received one or two fewer (oradditional) levels, there is no ready basis
for appealing the sentence. Second, thelower ends (and the upper ends) of thesentencing ranges were designed toincrease at an increasing rate. 45 Thisfeature produces wider ranges as offence
levels and/or criminal history categories
increase. However, the width of theseranges is bound by the third, statutory
principle: the maximum of a sentencing
range cannot exceed the minimum of that
range by more than 25 percent of theminimum range or six months, whicheveris greater.46 The exception is that ranges
with minimum sentences of 30 years ormore may have a maximum sentence of life
imprisonment.47
The sentencing table specifies months ofimprisonment, but depending on the regionof table, some form of probation may be apossible sentence. The table is divided into
four zones, A to D. Zone A consists of all
ranges for which zero is the minimum
sentence, allowing the sentencing judge toimpose a sentence of probation rather thanimprisonment for offenders whose
combined offence level and criminal history
score places them in one of these ranges.
Offenders in Zone B (minimum sentenceof 1 - 6 months) or Zone C (minimum
sentence of 8 - 10 months) may, with certain
restrictions, be sentenced to somecombination of imprisonment andsupervision, referred to as a “split
sentence.” Offenders in Zone D have aminimum sentence of 12 months and mustreceive a sentence of imprisonment.

45 With some exceptions,the lower and upper endsof the ranges increase logarithmically.
46 28 USC § 994(b)(2) (1998).
47 Ibid.

369

RESOURCE MATERIAL SERIES No. 55
At sentencing, after determining theapplicable sentencing range, defined by theintersection of the adjusted offence level
and the criminal history score, the judge
must impose a specific sentence within that
range. If the sentence is probation, or
includes a term of probation, the judge can
impose a term of 1 to 5 years, depending
upon the adjusted offence level. 48 A
defendant serving a sentence of 12 months
or greater is entitled to a credit of up to 15
percent of the sentence for good behavior
in prison.49
D. Departures from the Sentencing
Range
One of the features of this sentencing
system that sets it apart from the previous,
indeterminate system is the ability of bothoffenders and the government to appeal
sentences that do not fall within theapplicable sentencing range or which theappellant claims are based on an erroneousinterpretation of the guidelines.
Presupposing sentences outside theprescribed range is the power of the judges
to depart from that range. Judges may
depart from that range under either of two
circumstances: (1) if the offender has
provided assistance to the government,50
or (2) if there are characteristics of theoffender or the offence that were not, in theopinion of the judge, adequately consideredby the Sentencing Commission in thecreation of the guidelines.51 In the case of
assistance to the government, this type of
departure can only be made after a motion
by the government (i.e., the U.S. Attorney).
Once the motion is made, the judge may
sentence anywhere below the specified
sentencing range, even below statutory
minimum sentences. If the judge
determines that there is somecharacteristic of the offender or the offence
that was not adequately considered by the
Sentencing Commission, the judge may
sentence above or below the applicablerange, although not below the statutory

370

minimum. A judge may never exceed thestatutory maximum sentence.
As noted above, the Commission decided
that most of the factors Congress asked it
to consider are not relevant to sentencing,
and therefore, there may not be very many
characteristics the Commission has notconsidered. However, the guidelines do
include instructions that describe
circumstances in which judges may
consider a departure. For example, theguidelines include a policy statement that
if an offender’s criminal history score does
not adequately represent the seriousness
offender’s criminal history, the judge may
consider departing from the specified
sentencing range.52 The theft guideline
includes an instruction that if the monetaryloss to victims underrepresents theharmfulness of the crime, particularly thenonmonetary loss, the sentencing judge
may consider an upward departure.53 Caselaw developed since 1987 has further
broadened the discretion of sentencing
judges. During fiscal year 1997, 19.2
percent of guideline sentences weredepartures for substantial assistance, 12.1
percent were downward departures forreasons other than substantial assistance,and 0.8 percent were upward departures.54
V. THE IMPACT OF THE FEDERALSENTENCING GUIDELINES
After more than ten years of sentencing
guidelines in the federal courts, theirimpact can be seen in a number of changes
48 USSG §5B1.2 (1998).
49 18 USC §3624(b) (1998).
50 USSG §5K1.1 (1998).
51 USSG §5K2.0 (1998).
52 USSG §4A1.2 (1998).
53 USSG §2B1.1, comment (n. 15) (1998).
54 United States Sentencing Commission, 1997

Sourcebook of Federal Sentencing Statistics (1997)at 53.

111TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
throughout the federal criminal justicesystem. The federal prison population has
more than doubled since the guidelines’
introduction. Under the guidelines,
offenders are being sent to prison more
often and to serve longer sentences.
Criminal appeals have also doubled. As
offenders sentenced to terms of supervised
release are released from prison,particularly after long sentences, thenumber of supervised released revocation
hearings has increased.
A. The Federal Prison Population
During the period from 1986 to 1997, thefederal prison population grew from 40,505
to 101,845. 55 In 1986, drug offenders
accounted for 38.1 percent of newly
sentenced offenders. By 1997 this figure
had grown to 59.5 percent. The majorityof these drug offender are first-timeoffenders who have been sentenced toprison under the mandatory minimum
statutes.56
As noted earlier, the use of probation has
declined from 36.5 percent of all sentencesin 1987 to 21.2 percent in 1997. This meansthat a greater proportion of convicted
offenders are going to prison under theguideline system, some of them forconsiderably longer periods of time. The
average time served in prison increase from
15.6 months in 198657 to 26.5 months in1995 58 . Drug offenders released fromfederal prison in 1986 had served anaverage of 19.5 months. Time served bydrug offenders increased to an average of
37.6 months by 1995. The effect of
mandatory minimum sentences and theguidelines has been to double the averagetime served by drug offenders. This is themost dramatic increase in average time
served, but average time served may mask
the equally important change in the
proportion of offenders sentenced to prison.
Offenders who once received probation may
now be serving short prison terms. For

example, the average time served for fraud
increased only slightly from 13.6 months
in 1986 to 15.6 months in 1995, but thepercentage of fraud offenders sentenced toprison during this period increased fromless than 50 percent to about 60 percent.
B. Appeals
During statistical year 1987, there werea total of 5,260 criminal appeals
commenced in the U.S. Courts of Appeals.59
During this same year, 41,087 criminalcases were terminated in the U.S. District
Courts. 60 During fiscal year 1997, thenumber of criminal appeals commenced
had increase to a total of 10.521.61 During
this year, 46,887 criminal cases were
terminated.62 Thus, while there was a 100
percent in criminal appeals commenced
from 1987 to 1997, the number of criminalcases terminated increased by only 14
percent. Although we have no data
showing the nature of these appeals, thebulk of this increase is almost certainly
attributable to appeals of guideline
sentences.63
C. Supervised Release Revocations
An impact of the sentencing guidelinesthat is only now beginning to show is theincrease in the numbers of persons under
supervised release and the concomitantrevocations of supervised release. On
55 Ibid. at 506.
56 Miles D. Harer, Do Guideline Sentences for Low-

Risk Drug Traffickers Achieve Their StatedPurposes? 7 Fed. Sent. Rep.22 (1994).
57 Bureau of Justice Statistics, Sourcebook of Criminal
Justice Statistics-1988 (1988) at 647.
58 Bureau of Justice Statistics, Sourcebook of Criminal
Justice Statistics-1997 (1997) at 507.
59 Administrative Office of the United States Courts,
supra note 32 at 142.
60 Ibid. at 234.
61 Administrative Office of the United States Courts,
supra note 33 at 81.
62 Ibid. at 178.

371

RESOURCE MATERIAL SERIES No. 55
September 30, 1997, 51,036 persons wereserving a supervised release term,compared to 33,006 persons on probation.64
Supervised release is now the largest
supervision category, but it did not evenexist prior to the guidelines. Persons under
supervised release are subject tomandatory conditions such as reportingand maintaining employment, and may besubject to additional, court-imposed
conditions such as drug testing andtreatment. Violations of those conditions
could result in a return to prison, much as
violations of probation conditions can resultin a prison sentence. During fiscal year
1997, 5,455 persons were removed fromsupervised release for violations ofconditions. 65 This figure represents
approximately one-third of all individuals
removed from supervised release duringthat period (e.g., their term expired). In
contrast, only about one-sixth of persons
removed from probation supervision were
removed for violations of probation.
An examination of violations ofsupervised release and of probation showsthat the proportion of major violations was
2-3 times higher among the supervised
release population compared to theprobation population. Defendants released
after lengthy terms of confinement often
emerge from prison to a hostileenvironment without support of family andthe ability to maintain employment andnavigate a greatly changed social
environment.
Supervised release is intended to keep
offenders who have committed serious
offences under some type of control after
release from prison. But this is also a
population with, on average, more
extensive and more serious criminal
histories than offenders serving a term of
probation. As a result, supervised release
gives additional responsibilities to bothprobation officers and to the courts. These372

responsibilities are certain to increase
because an ever-growing prison population
has to result in an ever-growing population
on supervised release.
D. The Purposes of Punishment
What has been the impact of thesentencing guidelines in terms of the
purposes of sentencing - just punishment,
deterrence, incapacitation, rehabilitation?
Certainly, the sentencing guidelinesachieve incapacitation. The use ofprobation has been reduced and prison
terms have been increased for many or
most of the offences under federal
jurisdiction. Deterrent effects are difficult
to measure and will probably remain so.
Offences prosecuted in federal courts
represent a very small and, in someinstances, a unique portion of all offences
prosecuted in the courts of the UnitedStates. Deterrent effects of the guidelines
are likely to be masked by the much large
state criminal justice systems.
Rehabilitation, although a stated purposeof sentencing, is not vigorously pursued ateither the state or the federal level.
Just punishment has been, from thestart, a major goal of the reform efforts that
led to the Sentencing Reform Act of 1984.
If one defines just punishment narrowly interms of the process by which sentences are
imposed, the guideline system is closer, ingeneral, to fulfilling this purpose of
sentencing than was the indeterminate
system it replaced. Convicted offenders can
63 The Sentencing Commission’s 1997 Annual Reportcontains data on 3,691 sentencing appeals during
1997. This is almost certainly an undercountbecause the Commission collects only opinions andorders issued by the courts of appeal. United States
Sentencing Commission, 1997 Sourcebook ofFederal Sentencing Statistics (1997) at 103, A-1.
64 Administrative Office of the United States Courts,
supra note 33 at 243.
65 Ibid. at 256.

111TH INTERNATIONAL SEMINAR
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know before sentencing the type ofsentence they will receive and will havesome idea of its approximate length. If aterm of imprisonment is imposed, theoffender can expect to serve at least 85
percent of it. However, a broader view ofjust punishment might lead to questions
about other factors outside the narrow
scope of guideline application.
For one, many observers argue that the
mandatory minimum sentences for drugtrafficking, specifically those for crack
cocaine, have a disproportionate impact onBlack offenders. For example, the five-year
mandatory minimum sentence for cocaine
trafficking is triggered by 500 grams of
powder cocaine but only by 5 grams of crack
cocaine. Since Blacks are more likely to be
charged with trafficking crack cocaine thanare Whites, they receive a mandatory
sentence for much smaller amounts ofc o c a i n e . 66 E v e n t h e S e n t e n c i n g
Commission has found that Blacks are
disproportionately affected by thism a n d a t o r y m i n i m u m s e n t e n c e . 67
Nevertheless, Congress rejected theCommission’s recommendation for greater
parity between crack and powder cocaine
for triggering a mandatory minimum
penalty. If the statutory penalties that the
Sentencing Commission is required to
implement are perceived as unjust, noamount of procedural fairness in theapplication of the guidelines cancompensate.
At the other end of the process, judges
are able to depart from the guidelines
under circumstances described in theguidelines and noted earlier. One of thosecircumstances is substantial assistance tothe government in the prosecution ofothers. If an offender has provided suchassistance, and the government makes amotion for a departure, the court may
depart downward, even below mandatory
minimum penalties. A potential forsentencing disparity clear exists is these
instances, and it is of two sorts. For one,the guidelines do not define what
constitutes substantial assistance, and astudy by Sentencing Commission staff
shows that definitions of substantial
assistance and prosecutorial practices varyacross U.S. Attorney offices. 68 Two
offenders convicted in different districts ofthe same offence, with similar
backgrounds, who provided the sameassistance to the government, can receive
very different sentences depending on how
the U.S. Attorney’s office in each district
defines assistance. Once the motion for a
substantial assistance departure is made,no guidelines define for judges the limitsof a reasonable departure, nor are judges
required to explain their reasons in thiscontext. Although the limits on otherdepartures are also undefined, except bystatutory minima and maxima, they dorequire justification by the sentencing
judge. In these instances, as required bystatute, the judge will have a rationale forthe departure that can form the basis forthe degree of departure. No such rationale
is needed for substantial assistancedepartures. This again raises the question
whether the process invariably leads to ajust punishment. Since substantial
assistance departures were made inapproximately 19 percent of cases
sentenced during fiscal year 1997, this is
not an issue limited to a few cases.
Finally, the issue of variation across U.S.
Attorney Offices, with respect tosubstantial assistance, raises a larger
66 United States Sentencing Commission, Special

Report to Congress: Cocaine and Federal Sentencing
Policy (1995) at 156.
67 Ibid at xii.
68 Linda Drazga Maxfield and John H. Kramer,
Substantial Assistance: An Empirical YardstickGauging Equity in Current Federal Policy andPractice (1997).

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RESOURCE MATERIAL SERIES No. 55
issue: how variation in definitions,procedures, and practices across federal
court districts, as well as the courts ofappeals, may produce sentencing disparity.
At present, the extent of such variation andhow it interacts with the application of theguideline system is unknown. The
guideline system is designed to accept acertain amount of disparity, hence theoverlapping and increasingly wider
sentencing ranges in the sentencing table.
The extent of disparity due to inter-district
or inter-circuit differences in guideline
application, the precursor to the sentencing
table, is unmeasured. Even if it were
known, the Sentencing Commission has
limited authority to make adjustments to
reduce disparity of this sort. For example,
the Commission can amend the guidelines,
perhaps to resolve conflicts in case law
between circuits over guideline application.
When the amendment results in a
reduction in a term of imprisonment andit deems it necessary, the Commission canapply the result retroactively to reduce theterms of imprisonment of offenders alreadysentenced.69
VI. THE FUTURE OF FEDERALSENTENCING
What does the future hold for federal
sentencing? Reform efforts tend to be
cyclical, as problems with the current
system are recognized and there emerges
a consensus that something must be done.
These cycles seem to take 15-20 years tocomplete. The federal sentencing
guidelines may be in the middle of theircycle. Issues concerning the growing prison
population, the increased number of
appeals, and the increasing numbers of
persons on supervised release haveapparently not reached a crisis point, atleast not in the U.S. Congress. One aspectof the picture that has changed in the last
decade is the increasing politicization of thereform process. The politicization of crime374

probably began 30 years ago when national
political campaigns began to emphasize
rising crime rates and the dangers they
posed to the average citizen. The politics
of crime have become increasingly
sophisticated, to the point of focusing onmuch narrower issues such as school
uniforms as a means to combat juvenile
gang violence.
Another change is the greater hands-on
nature of Congress’ efforts at reform.
Congress now typically issues directives to
the Sentencing Commission to study or
adjust specific offence levels. Congress has
also considered federalizing offences thathave traditionally been prosecuted in state
courts, and the prospect of more rather
than fewer mandatory minimum sentences
for drug offences is a real one.
Whatever the future may hold, judges
have clearly found ways to work with theguidelines. One measure of comfort might
be the departure rate. During fiscal year
1997, 12.1 percent of imposed sentenceswere downward departures for reasons
other than substantial assistance and 0.8
percent were upward departures.70 During
fiscal year 1991, these figures were 5.8
percent and 1.7 percent, respectively.71 The
downward departure rate has doubled in
six years, indicating that judges are finding
ways to craft sentences they feel areappropriate but are not provided by thesentencing guidelines. To put this resultin a slightly different context, the 12.1
percent downward departure rate for 1997
represents 5,574 cases. With slightly lessthan 900 active and senior district court
judges in the federal system, the odds arehigh that all or most district court judges
69 USSG §1B1.10 (1998).
70 United States Sentencing Commission, supra note

63 at 53.
71 United States Sentencing Commission, Annual

Report (1991) at 139.

111TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
who sentenced criminal cases that year
departed downward in at least one case.
The departure rate may indicate somedissatisfaction with mandatory sentencing
rules if not with the idea of guidelines
generally. A 1996 survey of federal judges
and others by the Federal Judicial Centeryielded this result: 73% of district judges
who responded to the survey said that they
thought mandatory guidelines were notnecessary.72 When asked what they would
prefer in their place, two-thirds preferredadvisory guidelines.73
While the Congress has shown no
inclination to abolish the sentencing
guidelines, or make them advisory, theSentencing Commission has shown
interest in guideline reform. In 1995,
Commission staff began a study of theguidelines, aimed at considering how theymight be refined and simplified. To focus
staff attention and facilitate this review,
the Commission declared a one-year
moratorium on guideline amendments.
Hearings were held in Washington, D.C.
and Denver, Colorado, and Commission
staff prepared a series of working papers
to examine relevant conduct, the level ofdetail in specific offence guidelines,
sentencing options, departures, and theSentencing Reform Act itself. Due toturnover in Sentencing Commissioners,
this review effort has stalled. But its
initiation suggests that the most likely
source of incremental sentencing reform is
the Sentencing Commission. Refinement
and simplification do not constitute
revolutionary change, but they may help
deal with critical issues such as the prison
population, until the next round ofsentencing reform.
72 Molly Treadwell Johnson and Scott A. Gilbert, The

U.S. Sentencing Guidelines: Results of the Federal
Judicial Center’s 196 Survey (1997) at 3.
73 Ibid at 4.

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RESOURCE MATERIAL SERIES No. 55
ANNEXURE I
UNITED STATES SENTENCING COMMISSIONSENTENCING TABLE

Offence
Level
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
376

I
(0 or 1)
0-6
0-6
0-6
0-6
0-6
0-6
0-6
0-6
4-10
6-12
8-14
10-16
12-18
15-21
18-24
21-27
24-30
27-33
30-37
33-41
37-46
41-51
46-57
51-63
57-71
63-78
70-87
78-97
87-10897-121
108-135
121-151
135-168
151-188168-210188-235
210-262235-293262-327292-365324-405
360-LifeLife

Criminal History Category(Criminal History Points)
II
III
IV
(2 or 3)
(4,5,6)(7,8,9)
0-6
0-6
0-6
0-6
0-6
0-6
0-6
0-6
0-6
0-6
0-6
2-8
0-6
1-7
4-10
1-7
2-8
6-12
2-8
4-10
8-14
4-10
6-12
10-16
6-12
8-14
12-18
8-14
10-16
15-21
10-16
12-18
18-24
12-18
15-21
21-27
15-21
18-24
24-30
18-24
21-27
27-33
21-27
24-30
30-37
24-30
27-33
33-41
27-33
30-37
37-46
30-37
33-41
41-51
33-41
37-46
46-57
37-46
41-51
51-63
41-51
46-57
57-71
46-57
51-63
63-78
51-63
57-71
70-87
57-71
63-78
77-96
63-78
70-87
84-105
70-87
78-97
92-115
78-97
87-108100-125
87-10897-121
110-137
97-121
108-135
120-150
108-135
121-151
135-168
121-151
135-168
151-188135-168
151-188168-210151-188168-210188-235
168-210188-235
210-262
188-235
210-262235-293210-262235-293262-327235-293262-327292-365262-327292-365324-405292-365324-405
360-Life
324-405
360-Life
360-Life
360-Life
360-Life
360-Life
360-Life
360-Life
360-Life
Life
Life
Life

V
VI
(10,11,12) (13 or more)
0-6
0-6
0-6
1-7
2-8
3-9
4-10
6-12
6-12
9-15
9-15
12-18
12-18
15-21
15-21
18-24
18-24
21-27
21-27
24-30
24-30
27-33
27-33
30-37
30-37
33-41
33-41
37-46
37-46
41-51
41-51
46-57
46-57
51-63
51-63
57-71
57-71
63-78
63-78
70-87
70-87
77-96
77-96
84-10584-105
92-115
92-115100-125100-125
110-137
110-137
120-150
120-150130-162130-162140-175
140-175
151-188151-188168-210168-210188-235
188-235
210-262210-262235-293235-293262-327262-327292-365292-365324-405
324-405
360-Life
360-Life
360-Life
360-Life
360-Life
360-Life
360-Life
360-Life
360-Life
360-Life
360-Life
LifeLife