FIFTEEN YEARS OF

GUIDELINES SENTENCING 

An Assessment of How Well the 

Federal Criminal Justice System is 

Achieving the Goals of Sentencing Reform

UNITED STATES SENTENCING COMMISSION

November 2004
Submitted to

Ricardo H. Hinojosa

Chair

Ruben Castillo

Vice Chair

William K. Sessions, III

Vice Chair

John R. Steer

Vice Chair

Michael E. Horowitz

Commissioner

Michael E. O’Neill

Commissioner

Deborah Rhodes

(ex officio)

Edward F. Reilly, Jr.

(ex officio)

Prepared by

Paul J. Hofer

Charles Loeffler

Kevin Blackwell

Patricia Valentino
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Table of Contents

Executive Summary ............................................................ iv

Preface .................................................................... xviii

Chapter One: Introduction to the Sentencing Reform Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The History of the Sentencing Reform Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. The Roots of Reform .......................................... 1

2. Legislative Development of the SRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Goals and Purposes of the SRA ....................................... 11

1. The Goals of Sentencing Reform ................................ 11

2. The Purposes of Punishment ................................... 12

C. The Commission’s Implementation of the SRA . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1. Guidelines Drafting Procedures ................................. 14

2. How the Guidelines Determine the Presumptive Sentence . . . . . . . . . . . . 16

D. Components of the Reformed Sentencing System . . . . . . . . . . . . . . . . . . . . . . . . . 18

1. Components of Guidelines Development . . . . . . . . . . . . . . . . . . . . . . . . . 19

2. Components of Guidelines Implementation . . . . . . . . . . . . . . . . . . . . . . . 22

E. From Theory to Practice............................................. 35

Chapter Two: Impact of the Sentencing Guidelines on the Certainty and Severity 

of Punishment .................................................... 38

A. Introduction to the Chapter and the Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

1. Sentencing Policy and the Scale of Imprisonment . . . . . . . . . . . . . . . . . . . 38

2. Assembling the Data ......................................... 40

B. The Increased Certainty of Imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

1. Historical Development of Use of Imprisonment in the Federal System . 41

2. Overall Trends in the Use of Imprisonment . . . . . . . . . . . . . . . . . . . . . . . . 42

C. The Increased Severity of Prison Sentences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

1. The Elimination of Parole and the Importance of Time Served . . . . . . . . 45

2. Overall Trends in Sentencing Severity . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

D. Variations Among Different Offense Types . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

1. Drug Trafficking Offenses ..................................... 47

2. Economic Offenses .......................................... 55

3. Immigration Offenses ........................................ 61

4. Firearm Trafficking and Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

5. Violent Crimes .............................................. 68

6. Sexual Abuse, Exploitation, and Transportation for Illegal Sexual 

Activities .................................................. 72
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E. Certainty, Severity, and the Scale of Imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . 75

1. Policymaking in the Guidelines Era . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

2. Sentencing Guidelines: A New Instrument of Policy Control . . . . . . . . . . . 77

Chapter Three: Presentencing, Inter-judge, and Regional Disparity . . . . . . . . . . . . . . . . . . . . . . . . 79

A. Introduction ....................................................... 79

1. Definitions of Disparity ........................................ 79

2. Increased Transparency of the Sentencing Decision . . . . . . . . . . . . . . . . . . 80

B. Disparity Arising at Presentencing Stages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

1. Presentencing Stages That Can Affect Sentencing Uniformity . . . . . . . . . . 82

2. Surveys Suggest Disparity Results from Presentencing Stages . . . . . . . . . . 85

3. Field Studies Suggest Disparity Results from Presentencing Stages . . . . . . 86

4. Quantifying the Extent of Disparity Arising at Presentencing Stages . . . . . 88

5. Presentencing Stages, Disparity, and the Mechanisms Designed to 

Control It ................................................... 92

C. Inter-judge and Regional Sentencing Disparity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

1. The Effects of the Guidelines on Inter-judge and Regional Disparity . . . . . 94

2. Evidence of Inter-judge and Regional Variation in the Preguidelines Era . 94

3. Research Concerning the Guidelines’ Effects on Disparity . . . . . . . . . . . . . 95

4. Recent Research Concerning the Guidelines’ Effects on Disparity . . . . . . . 97

D. Continuing Disparity Under the Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

1. Continuing Regional and Inter-judge Disparities . . . . . . . . . . . . . . . . . . . . 99

2. Mechanisms for Disparity Within the Guidelines System . . . . . . . . . . . . . 102

3. Departures Upon Motion of the Government . . . . . . . . . . . . . . . . . . . . . . 103

4. Variability of Within-Guidelines Sentences . . . . . . . . . . . . . . . . . . . . . . . 107

5. Departures for Exceptional Circumstances . . . . . . . . . . . . . . . . . . . . . . . . 110

Chapter Four: Racial, Ethnic, and Gender Disparities In Federal Sentencing Today . . . . . . . . . . 113

A. Examining Group Differences ........................................ 113

1. Disparity, Discrimination, and Adverse Impacts . . . . . . . . . . . . . . . . . . . . 113

2. A Growing Minority Caseload ................................. 114

3. A Growing Gap in Sentencing ................................. 115

B. Studying Racial, Ethnic, and Gender Discrimination in Sentencing . . . . . . . . . . 117

1. Continuing Concern in the Guidelines Era . . . . . . . . . . . . . . . . . . . . . . . . 117

2. Research on Discrimination under the Guidelines . . . . . . . . . . . . . . . . . . . 118

C. Results from Recent Research ........................................ 119

1. Racial and Ethnic Disparity .................................... 120

2. Gender Disparity ............................................ 127

3. Research on Departures, Sentencing Options, and Placement Within the

Guideline Range ............................................. 128
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D. Rules Having Significant Adverse Impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

1. The 100-1 Powder to Crack Cocaine Ratio . . . . . . . . . . . . . . . . . . . . . . . . 131

2. Using Prior Drug Trafficking Convictions to Define Career Offenders . . 133

E. Conclusion ....................................................... 134

Chapter Five: Summary and Conclusions ........................................... 136

A. Substantially Achieved Goals of the SRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

1. Increased Rationality and Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . 136

2. Increased Certainty and Severity of Punishment . . . . . . . . . . . . . . . . . . . . 138

B. Partially Achieved Goals of the SRA .................................. 140

1. Reduction of Unwarranted Sentencing Disparity . . . . . . . . . . . . . . . . . . . 140

2. A High Standard of Sentencing Uniformity . . . . . . . . . . . . . . . . . . . . . . . 142

C. Partial Implementation of the Components of Sentencing Reform . . . . . . . . . . . . 143

1. Components of Guidelines Implementation . . . . . . . . . . . . . . . . . . . . . . . 144

2. Components of Guidelines Policy Development . . . . . . . . . . . . . . . . . . . . 145

APPENDIX

A. Bibliography ...................................................... A-1

B Congressional Directives to the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1

C. Survey of Article III Judges on the Federal Sentencing Guidelines . . . . . . . . . . . C-1

D. Technical Appendix ................................................ D-1
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Executive Summary

The Sentencing Reform Act of 1984 [hereinafter the SRA] ushered in a new era of sentencing

in federal courts. Prior to implementation of the SRA, federal crimes carried very broad ranges of

penalties, and federal judges had the discretion to choose the sentence they felt would be most

appropriate. They were not required to explain their reasons for the sentence imposed, and the

sentences were largely immune from appeal. The time actually served by most offenders was

determined by the Parole Commission, and offenders, on average, served just 58 percent of the

sentences that had been imposed. The sentencing process, a critical element of the criminal justice

process, was opaque, undocumented, and largely discretionary. Because of its impenetrability to

outside observers, there was a sense that the process was unfair, disparate, and ineffective for

controlling crime. 

In order to inject transparency, consistency, and fairness into the sentencing process,

Congress passed the SRA, which established the United States Sentencing Commission [hereinafter

the Commission] and charged it with establishing guidelines for federal sentencing. The guidelines

were promulgated in 1987, but district and circuit court rulings prevented their full implementation

until the Supreme Court, in Mistretta v. United States, 488 U.S. 361 (1989), affirmed the

constitutionality of the Commission and its work in crafting guidelines. As a result, in 1991, when

the Commission issued its report, The Federal Sentencing Guidelines: A Report on the Operation

of the Guidelines System and Short-term Impacts on Disparity in Sentencing, Use of Incarceration,

and Prosecutorial Discretion and Plea Bargaining [hereinafter called the Four-Year Evaluation],

there was relatively little data from which the Commission could evaluate the effects of the

guidelines. Today the Commission is in a better position to evaluate the success of the guidelines

system and identify areas for further refinement. This report focuses on three specific assessments:

1) the guidelines’ impact on the transparency, certainty, and severity of punishment, 2) the impact

of the guidelines on inter-judge and regional disparity, and 3) research on racial, ethnic, and gender

disparities in sentencing today.

Introduction to the Sentencing Reform Act and the Guidelines

Goals and evaluation criteria. The SRA was the result of nine years of bipartisan

deliberation and compromise and, as such, reflects the varied and, at times, competing sentencing

philosophies of its many sponsors and supporters. It set forward the following goals for sentencing

reform: 

1. elimination of unwarranted disparity;

2. transparency, certainty, and fairness;

3. proportionate punishment; and

4. crime control through deterrence, incapacitation, and the rehabilitation of offenders.
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The goals of the new system identified in the SRA provide the best criteria for judging

whether sentencing reform has been successful. These goals can be divided into two groups. The

first group, the goals of sentencing reform, include certainty and fairness in punishment and the

elimination of unwarranted disparity. Research on the effectiveness of the system at achieving these

goals is the subject of this report. The second group, establishment of policies that will best

accomplish the purposes of sentencing—which are usually summarized as just punishment,

deterrence, incapacitation, and rehabilitation—is the subject of previous Commission-sponsored

research as well as ongoing research at the Commission. 

Development of the guidelines. The guidelines promulgated bythe Commission were based

on the directives in the SRA and other statutory provisions, as well as on a study of past sentencing

practices. The Commission analyzed detailed data from 10,000 presentence reports and additional

data on over 100,000 federal sentences imposed in the immediate preguidelines era. The

Commission determined the average prison term likely to be served for each generic type of crime.

These averages helped establish “base offense levels” for each crime, which were directly linked to

a recommended imprisonment range. Aggravating and mitigating factors that significantly correlated

with increases or decreases in sentences were also determined statistically, along with each factor’s

magnitude. These formed the bases for “specific offense characteristics” for each type of crime,

which adjusted the offense level upward or downward. The Commission deviated from past practice

when it determined there was a compelling reason, such as past under-punishment of white collar

offenses, and when Congress dictated increased severity for an offense category. The Commission

also factored offenders’ criminal history into the guidelines as a wayto identify offenders most likely

to recidivate. 

Real offense guidelines. The statute-defined elements of manyfederal crimes fail to provide

sufficient detail about the manner in which the crime was committed to permit individualized

sentences that reflect the varying seriousness of different violations. In addition, the many,

sometimes overlapping provisions in the federal criminal code create the potential that similar

offenses will be charged in many different ways. To better reflect the seriousness of each offender’s

actual criminal conduct, and to prevent disparate charging practices from leading to sentencing

disparity, the original Commission developed guidelines that are based to great extent on offenders’

real offense behavior rather than the charges of conviction alone. Some of the mechanisms to help

ameliorate the effects of uneven charging include: 1) the multiple count rules, 2) cross-references

among guidelines, and 3) the relevant conduct rule. In a real offense system, the offender’s actual

conduct proved at the sentencing hearing—not only the elements of the counts of conviction—factor

into the sentence imposed within the statutory penalty range established by the legislature for the

offenses of conviction.

Certainty and Severity of Punishment

Truth-in-sentencing, mandatory minimums, and sentencing guidelines. In some sense,

the success of the guidelines at achieving certainty of punishment has never been at issue, because
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the establishment of “truth-in-sentencing” with the elimination of parole accomplished it at a stroke.

Under the guidelines, punishment became not only more certain but also more severe. The

proportion of probation sentences declined, use of restrictive alternatives such as home confinement

increased, and the rate of imprisonment for longer lengths of time climbed dramatically compared

to the preguidelines era. While mandatory minimum penalties had some direct and indirect effects

on these trends, careful analysis of sentencing trends for different types of crimes demonstrates that

the sentencing guidelines themselves made a substantial and independent contribution. 

Overall trends in the use of imprisonment and probation. Between 1987 and 1991, as the

full impact of the sentencing guidelines gradually emerged in federal courts, the use of simple

probation was cut almost in half. It continued to decline throughout the guidelines era. By 2002,

the percentage of offenders receiving simple probation was just a third what it had been in 1987.

The use of imprisonment spiked in the early years of guidelines implementation and then resumed

a long gradual climb, reaching 86 percent of all offenders by 2002, about 20 percent higher than it

had been in the preguidelines era. Some of the decrease in the use of simple probation following

implementation of the guidelines is explained by increased use of intermediate sanctions, especially

for “white collar” crimes. These offenders historicallywere more likely to receive simple probation,

but under the guidelines they increasingly are subject to intermediate sanctions, such as home or

community confinement or weekends in prison, and imprisonment. 

In addition to an increase in use of imprisonment, the guidelines era is marked by longer

prison terms actually served. Longer prison terms result both from the abolition of parole, which

requires offenders to serve at least 85 percent of the sentence imposed, and also by increases in the

sentences that are imposed for many types of crimes. Between November 1987 and 1992, the

average prison term served by federal felons more than doubled. Since fiscal year 1992, there has

been a slight and gradual decline in average prison time served, but federal offenders sentenced in

2002 will still spend almost twice as long in prison as did offenders sentenced in 1984, increasing

from just under 25 to almost 50 months in prison for the typical federal felon. 

The abolition of parole, the enactment of mandatory minimum penalty provisions, and

changes in the types of offenders sentenced in federal court, along with implementation of the

guidelines, all contributed to increased sentence lengths. The influence of each of these factors

varies among different offenses. 

Drug Trafficking. Drug trafficking offenses have comprised the largest portion of the

federal criminal docket for over three decades. With the overall growth in the federal criminal

caseload, the number of offenders convicted of drug trafficking or use of a communication facility

to commit a drug offense has grown every year, reaching 25,835 offenders in 2002, or 40.4 percent

of the total criminal docket. Only 592 additional drug offenders, less than 1 percent, were convicted

of simple drug possession, as opposed to trafficking. As a result of the large number of drug

offenders, overall trends in the use of incarceration and in average prison terms are dominated by

drug sentencing.
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In developing sentences for drug trafficking offenders, the Commission was heavily

influenced by passage of the Anti-Drug Abuse Act of 1986 [hereinafter ADAA] which created fiveand ten-year mandatory minimum penalties based on the weight of the “mixture or substance

containing a detectable amount” of various types of drugs. Finding the correct quantity ratios among

different drugs and the correct thresholds for each penalty level has proven problematic. The

Commission previously reported that the ratios among certain types of drugs contained in the

ADAA, and incorporated into the guidelines’ Drug Quantity Table, fail in some cases to reflect the

relative harmfulness of different drugs. This is particularly true for the 100-to-1 drug quantity ratio

between powder and crack cocaine. The quantity thresholds linked to five- and ten-year sentences

for crack cocaine have been shown to result in penalties that are disproportionately long given the

relative harmfulness of crack and powder cocaine, and results in lengthy incarceration for many

street-level sellers and other low culpability offenders. As a result, the Commission has

recommended to Congress revision of the mandatory minimum penalty statutes and the guidelines.

Congress has not yet acted on this recommendation. 

There has been a dramatic increase in time served by federal drug offenders following

implementation of the ADAA and the guidelines. The time served by federal drug traffickers was

over two and a half times longer in 1991 than it had been in 1985, hovering just below an average

of 80 months. In the latter half of the 1990s, the average prison term decreased by about 20 percent

but remained far above the historic average. The decrease in time served during the late 1990s is a

result of a trend toward less serious offenses and a greater incidence of mitigating factors in cases

sentenced. The overall pattern is repeated for each drug type, although the severity levels are highest

for crack cocaine, followed by powder cocaine, heroin, and other scheduled narcotics. Marijuana

offenses received the shortest prison terms. 

Economic Offenses. Economic offenses—which include larceny, fraud, and non-fraud white

collar offenses—constitute the second largest part of the federal criminal docket. A wide variety of

economic crimes are prosecuted and sentenced in the federal courts, ranging from large-scale

corporate malfeasance to small-scale embezzlement to simple theft. The Commission’s study of past

sentencing practices revealed that in the preguidelines era, sentences for fraud, embezzlement, and

tax evasion generally received less severe sentences than did crimes such as larceny or theft, even

when the crimes involved similar monetary loss. A large proportion of fraud, embezzlement, and

tax evasion offenders received simple probation. In response, the guidelines were written to reduce

the availability of probation and to ensure a short but definite period of confinement for a larger

percentage of these “white collar” cases, both to ensure proportionate punishment and to achieve

adequate deterrence. 

The most striking trend in economic offenses is a shift away from simple probation and

toward intermediate sentences that include some type of confinement. The use of imprisonment for

economic offenders also has increased steadily throughout the guidelines era. These data

demonstrate some success in achieving the Commission’s goal of assuring a “short but definite

period of confinement” for white collar offenders. The guidelines ensure that offenses involving the
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greatest monetary loss, the use of more sophisticated methods, and other aggravating factors are

given imprisonment. 

Immigration Offenses. Prior to fiscal year 1994 there were relatively few immigration cases

sentenced in the federal courts. In the first three years of the 1990s the number of cases ranged

between 1,000 and 2,000 annually. Beginning in 1995, however, the number of cases began to

climb, and after the implementation of Operation Gatekeeper—the Immigration and Naturalization

Service’ssouthwest border enforcement strategy—the number began to soar, reaching a peak of just

under 10,000 cases in 2000. Along with the phenomenal growth in the size of the immigration

offense docket, a series of policy decisions by Congress and by the Commission have steadily

increased the severity of punishment for the two most common classes of immigration offenses:

alien smuggling and illegal entry.

Use of imprisonment has increased substantially for these offenses and is affected by the fact

that many immigration offenders are non-resident aliens. Lacking a legal home in the United States,

many are detained prior to sentencing. Immediate deportation has also become a frequent response

to those individuals arrested for illegal entry. Legislative and Commission changes to these penalties

have focused on increasing the guidelines offense levels. This has pushed more offenders into the

zones of the Sentencing Tables in which probation and alternative sentences are unavailable. In

addition to the increased use of incarceration, the average length of time served for both alien

smuggling and illegal entry have increased considerably. Illegal entry offenders experienced the first

wave of sentence increases in the early 1990s as the guideline amendments enacted in those years

became effective. Alien smuggling experienced a steep increase in 1998, as the amendment

promulgated pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

took effect. 

Firearm trafficking and possession. The federal criminal code contains a variety of

provisions proscribing the possession, use, and trafficking of firearms. In the last two decades,

congressional attention has focused on 18 U.S.C. § 924(c), which provides for a mandatory

minimum penalty for offenders who use, carry, or possess a firearm in relation to a drug trafficking

or violent crime. In 1984, the statute was amended to require at least five years’ imprisonment, to

be served consecutive to the sentence for the underlying offense. In 1986, the statute’s scope was

expanded to include drug trafficking offenses, and additional penalties were added. In 1998, in

response to Bailey v. U. S., 516 U.S. 137 (1995)—a U. S. Supreme Court decision that narrowly

construed the “use” criteria—the statute’s scope was again expanded to include “possession in

furtherance” of the underlying offense. Penalties were also increased for brandishing or discharging

a firearm during a crime.

Federal statutes also define two other broad types of firearm offenses. Federal law regulates

transactions in firearms and imposes record-keeping and other requirements designed to facilitate

control of firearm commerce by the various states. In addition, possession of a firearm by certain

classes of persons, such as felons, fugitives, or addicts, is prohibited, as is “knowing transfer” of
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weapons to these persons. Under the guidelines, the certainty and severity of punishment for all

these offenses have greatly increased. 

For firearm traffickers, the use of probation has been steadily reduced to about one-quarter

of its preguidelines level, replaced by imprisonment and, to a lesser extent, intermediate sanctions.

After a period of volatility and decline in trafficking sentences in the first years of guidelines

implementation, time served began a steady climb in fiscal year 1992, after the Commission enacted

a major revision to the firearms guideline. The subsequent amendments to the guideline have

continued to increase sentence severity. By 2000, prison terms were about double what they had

been in the preguidelines era. Forillegal possessors, probation has been replaced almost completely

by imprisonment. The penalty increases for possession offenses were equally dramatic, doubling

average time served between 1988 and 1995. 

Some of the changes observed for firearm offenses may have been a consequence of more

serious cases generated by Department of Justice [hereinafter the Department] initiatives. But the

most significant factor driving the penalty increases appears to have been the guideline amendments.

These revisions have dramatically increased offense levels, particularly for offenders with prior

convictions and for those who used more dangerous types of weapons. These changes in sentences

for illegal firearm transactions and possession represent one of the most substantial policy changes

initiated largely by the Commission. 

Violent Crimes. Unlike the state courts, the federal courts sentence relatively few offenders

convicted of violent crimes. In 2002, murder, manslaughter, assault, kidnaping, robbery, and arson

constituted less than four percent of the total federal criminal docket. Due to the unique nature of

federal jurisdiction over these types of crime, a sizeable proportion of murder, assault, and especially

manslaughter cases involve Native American defendants. The most common federal violent crime

is bank robbery, which has long been of special concern to federal law enforcement.

For most violent offenses, rates of imprisonment have always been high and have remained

so under the guidelines. Only manslaughter, the violent offense for which Native Americans are

most highly represented, contained room for significant growth in incarceration rates. The use of

alternatives to imprisonment for manslaughter cases has been steadily reduced under the guidelines,

and now occurs in less than ten percent of cases. Kidnaping and murder have incarceration rates

between 90 and 100 percent, with arson and assault somewhat lower. The imprisonment rate for

bank robbers climbed from the mid to the high 90s under the guidelines. 

Average prison sentences imposed on violent offenders decreased at the time of guidelines

implementation, but due to the abolition of parole, the time served increased significantly. The

greatest increases have been for murder, kidnaping, bank robbery, and arson. The more stable prison

term lengths for manslaughter partly reflect the large number of these offenders who receive

relatively short prison terms rather than an alternative sanction. 
x

Sex offenses. Although sex offenses account for a very small percentage of cases in the

federal docket, just 1.3 percent in 2002, Congress has legislated frequently on this issue during the

guidelines era, particularly regarding offenses against minors. Much like policymaking in the area

of drug trafficking, Congress has used a mix of mandatoryminimum penalty increases and directives

to the Commission to change sentencing policy for sex offenses. In the PROTECT Act of 2003,

Congress, for the first time since the inception of the guidelines, directly amended the Guidelines

Manual and developed unique limitations on downward departures from the guidelines in sex cases.

 

The guidelines treat separately three types of sexual offenses. Criminal sexual abuse involves

offenses such as aggravated rape, statutory rape, or molestation. Sexual exploitation involves the

production, distribution, or possession of child pornography. Promotion offenses involve inducing,

enticing, or persuading commission of an illegal sex act, or traveling or transporting persons to

commit such acts, or otherwise promoting illegal commercial sex acts.

The percentage of offenders receiving imprisonment increased for both sexual abuse and

sexual exploitation offenders in the guidelines era, and dramatically so for sexual exploitation

offenders. Fewer than ten percent of either type of offender receives probation or intermediate

sanctions. The average length of time served for sexual exploitation has increased by 20 months

from its preguidelines level. Sentences imposed on sexual abuse offenders show the same decreases

observed for violent offenders, but time actually served has remained fairly constant throughout the

period of study. 

Inter-judge and Regional Disparity

Evidence of disparity in preguidelines sentencing. In the debates leading to passage of the

SRA, Congress identified differences among judges and, to a lesser extent, differences among

geographic regionsin sentencing practices as particularly common sources of unwarranted disparity.

Research demonstrated that philosophical differences among judges affected the sentences they

imposed. The data showed that some judges were consistently more severe or more lenient than

their colleagues, and that judges varied in their approaches to particular crime types. Several studies

found geographical variations in sentencing patterns, suggesting that different political climates or

court cultures can affect sentences. Regional differences arise not just from the exercise of judicial

discretion, but also from differences in policies among U. S. attorneys. 

Increased transparency and predictability of sentences under the guidelines. The

guidelines have made sentencing more transparent and predictable. The SRA requires judges to

document in open court the facts and reasons underlying the sentences they impose, which are then

reviewable on appeal. Defendants and prosecutors are better able to predict sentences based on the

facts of the case than in the discretionary, preguidelines era. By making sentencing policies more

transparent, the guidelines make it easier to debate and evaluate the merits of particular policies. The

effects of changes in sentencing policy can also be anticipated more precisely. The prison impact
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model developed by the Sentencing Commission, and further elaborated by the Bureau of Prisons

[BOP], has proven very accurate at projecting the need for prison beds and supervision resources,

making management of correctional resources easier.

Statistics provide a method for quantifying the increased understanding of sentencing made

possible by guidelines. Most of the “variance”—the deviation of sentences around the

average—among sentences in the preguidelines era was unaccounted for in statistical studies. Only

30 to 40 percent of the variance could be explained by characteristics of the offense or offender,

leaving open the possibility of considerable arbitrary variation. Today, approximately 80 percent

of the variance in sentences can be explained by the guidelines rules themselves. This greater

transparency makes it easier to dispel concerns that sentences vary arbitrarily among judges, or that

irrelevant factors, such as race or ethnicity, significantly affect sentences. 

Evaluation research has been made easier by another benefit of sentencing reform—the

creation of a specialized expert agency with a substantial research mission. The Commission has

developed and maintains huge databases on the sentences imposed in each fiscal year, as well as

specialized data sets focused on particular issues. These represent the richest sources of information

that have ever been assembled on federal crimes, federal offenders, and sentences imposed. As a

result, we are in a better position to evaluate whether unwarranted inter-judge, regional, or racial

discrimination affects sentences today. 

The effect of guidelines implementation. The effect of the guidelines on unwarranted

disparity is best evaluated by comparing, among judges who receive similar types of cases, the

amount of variation in sentences before and after guidelines implementation. Researchers both

inside and outside the Commission have made this comparison using the “natural experiment”

created by the random assignment of cases to judges in many courthouses. The most recent and best

of these studies found significant reductions in the unwarranted influence of judges on sentencing

under the guidelines compared to the preguidelines era. 

Studies of disparity divide judges’ influence into “primary judge effects” (greater severity

or leniency among judges in all types of cases, represented by differences in their average sentence)

and “interaction effects” (greater severity or leniency in particular types of cases). Two judges with

similar average sentences may greatly differ in their treatment of particular offenses. Interaction

effects can reduce or even cancel the primary judge effect, with one judge sentencing drug offenses

more severely than “white collar” offenses and another doing the opposite. 

In the Commission’s study, the influence of several different factors were compared,

including the primary judge effect, interaction effects, city effects, as well as the general type of

offense involved and whether an offender had any prior criminal conviction. General offense type

accounted for the most variation in sentences both before and after guidelines implementation

(between 15% & 20%) followed by interaction effects, city effects, and judge effects. The primary

judge effect was relatively small in both the preguidelines and guidelines era, but was reduced by
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between a third and half under the guidelines (e.g., from 2.32 to 1.24 percent among judges who

sentenced in both time periods). Interaction effects were about three to five times larger than

primary judge effects. Interaction effects were reduced for most judges under the guidelines,

although not among judges who sentenced in both time periods. The influence of judges was

reduced by the guidelines for drug, fraud, firearm, and larceny offenses, though immigration or

robbery offenses did not show a reduction. Notably, regional differences in drug trafficking cases

were increased from the preguidelines to the guidelines era. 

Disparity Arising at Presentencing Stages. The SRA focused primarily on sentencing, but

Congress, the Commission, and other observers recognized that sentencing could not be considered

in isolation. Decisions regarding what charges to bring, decline, or dismiss, or what plea agreements

to reach can all affect the fairness and uniformity of sentencing. Congress directed the Commission

to develop mechanisms to monitor and, if necessary, control some of the negative effects of plea

bargaining, particularly through policy statements establishing standards for judicial review and

rejection of plea agreements that undermine the guidelines. In addition, the Commission developed

the real offense system of relevant conduct and multiple count rules to reduce the effects of charging

variations on the sentencing of offenders who engage in similar conduct. The Judicial Conference

of the United States developed procedures for presentencing investigations designed to inform judges

of the effects of charging and plea bargaining decisions. The Department also took steps to help

ensure that sentencing uniformity was not thwarted at the presentencing stages. The Department’s

efforts were recently renewed, demonstrating continuing recognition that presentencing decisions

can undermine sentencing uniformity.

Congress has previously directed the Commission to study plea bargaining and its effects on

disparity. Because fewer statistical data are available to investigate decisions made at presentencing

stages, their effects are difficult for the Commission to monitor and precisely quantify. However, a

variety of evidence developed throughout the guidelines era suggest that the mechanisms and

procedures designed to control disparity arising at presentencing stages are not all working as

intended and have not been adequate to fully achieve uniformity of sentencing. 

The Commission, as well as outside observers, have reported that plea bargaining is reintroducing disparity into the system. The Commission in 1989, 1995, and again in 2000 compared

descriptions of the offense conduct contained in samples of presentence reports with the conduct for

which the offenders were charged and sentenced. Each time a large proportion of qualifying

offenders (in some cases large majorities) were not charged with potentially applicable penalty

statutes. While some offenders are charged in a manner that results in sentences above the guideline

range that would otherwise apply to the case, in other cases the charges selected cap the statutory

range below the guideline range that would properly apply to the offender’s real offense conduct.

Charging decisions that limit the normal operation of the guidelines result in sentences that are

disproportionate to the seriousness of the offense and disparate among offenders who engage in

similar conduct. 
xiii

Surveys of judges and probation officers have suggested other forms of plea bargaining, such

as fact bargaining, that can result in disparity. A majority of chief probation officers reported in a

survey sponsored by the Commission’s Probation Officer’s Advisory Group that the facts included

in plea agreements were complete and accurate in the majority of cases. However, 43 percent

reported this was true just half the time or less. Probation officers in some districts reported that

prosecutors tried to limit information used in applying the guidelines in some cases. The Federal

Judicial Center found in a nationwide survey that more than a quarter of responding judges reported

that plea stipulations understated the offense conduct somewhat or very frequently, while another

12 percent said they did so about half the time. Judges reported that they did sometimes "go behind"

the plea agreements to examine underlying conduct, but they reported doing so “infrequently.”

Field studies in several districts have demonstrated other ways that plea bargaining can result

in sentencing disparity. An early study sponsored by the Commission estimated that plea agreements

circumvented the guidelines in 20 to 35 percent of cases through charge, fact, or date bargaining.

Some commentators have called circumvention of the guidelines through plea agreements a form

of “hidden departure,” in which prosecutors and courts create incentives for guilty pleas and

defendant cooperation beyond the incentives contained in the guidelines themselves. In some cases,

the sentence recommended in plea agreement appears to the parties and to the court more fair and

effective at achieving the purposes of sentencing than the sentence required by strict pursuit of every

potentially applicable charge or sentence enhancement. 

Other Sources of Disparity Under the Guidelines. Several mechanisms within the

guidelines system have been identified by commentators as continuing sources of disparity. These

include variation in the rates of departure, including departures for substantial assistance to the

government, or the extent ofsuch departures. In addition, the guidelines give judges discretion over

placement of the sentence within the guideline range, including, in some cases, whether to use a

sentencing option such as probation. 

The Commission analyzed the influence of each of these mechanisms on sentencing

variations. Among these mechanisms, substantial assistance departures accounted for the greatest

amount of variation in sentence lengths—4.4 percent. Other downward departures contributed 2.2

percent, while upward departures contributed just 0.29 percent. Only 0.07 percent of the variation

was explained by use of the guideline range above the guideline minimum. Because data is

unavailable on the types of assistance offered by defendants, or the nature of the mitigating

circumstances present in cases, it is not possible to determine how much of these sentencing

variations represent unwarranted disparity. 

Even though the rate of substantial assistance and other downward departures is

similar—17.1 percent and 18.3 percent, respectively—substantial assistance departures account for

more variability in sentence length because the extent of departure for substantial assistance is on

average greater. Commission research found varying policies and practices in different U. S.

attorney’s offices regarding when motions for departures based on substantial assistance were made,

and in the extent of departure recommended for different forms of assistance. 
xiv

Racial, Ethnic, and Gender Disparity

Growing caseload of minority offenders and a gap in sentencing. The proportion of the

federal offender population consisting of minorities has grown over the past fifteen years. While the

majority of federal offenders in the preguidelines era were White, minorities dominate the federal

criminal docket today. Most of this shift is due to dramatic growth in the Hispanic proportion of the

caseload, which has approximately doubled since 1984. Most notably, while the gap in average

sentences between White and minority offenders was relatively small in the preguidelines era, the

gap between African-Americans and other groups began to widen at the time of guidelines

implementation, which was also the period during which large groups of offenders became subject

to mandatory minimum drug sentences. The gap was greatest in the mid-1990s and has narrowed

only slightly since then. The Commission had conducted a great deal of research to investigate

possible reasons for this gap, including the possible influence of discrimination or of changes to the

sentencing laws themselves.

Discrimination. The SRA sought to eliminate all forms of unwarranted disparity, including

disparity based on irrelevant differences among offenders. Different treatment based on such

characteristics is generally called discrimination. Discrimination may reflect intentional bias toward

a group, or may result from unconscious stereotypes or fears about a group, or greater empathy with

persons more similar to oneself. Discrimination is generally considered the most onerous type of

unwarranted disparity and sentencing reform was clearly designed to eliminate it. Concern over

possible discrimination in federal sentencing remains strong today. No sentencing issue has received

more attention from investigative journalists or scholarly researchers. 

The studies agree on a general point: racial and ethnic discrimination by judges, if it exists

at all, is not a major determinant of federal sentences compared to the seriousness of offenders’

crimes and their criminal records. But the studies disagree over whether discrimination continues

to affect sentencing at all. Many of the earlier studies were plagued by methodological problems,

including a lack of good data on legally relevant considerations that might help explain differences

in sentences and a failure to take account of statutory minimum penalties. Many of these problems

can be overcome by using a “presumptive sentence” model.

The Commission studied whether race, ethnicity, or gender affects federal sentences after

controlling for the influence of legally relevant considerations, including the guidelines rules and

mandatory statutory penalties. Across five recent years, a typical Black male or Hispanic male drug

trafficker had somewhat greater odds of being imprisoned when compared to a typical White male

drug trafficker. No differences were found in non-drug cases. The odds of a typical Black drug

offender being sentenced to imprisonment are about 20 percent higher than the odds of a typical

White offender, while the odds of a Hispanic drug offender are about 40 percent higher. Differences

in odds are difficult to translate into plain language, but further analysis examining the proportional

reduction in error achieved by using race and ethnicity suggest that in only a handful of cases in any

given year does being Black or Hispanic influence the decision whether to incarcerate. Some of

these differences might be explained by legally relevant considerations for which we have no data.
xv

For offenders whom judges choose to incarcerate, the question becomes: do similar offenders

receive similar prison terms? For Black offenders, the results are once again limited to drug

trafficking offenses and to male offenders. The typical Black drug trafficker receives a sentence

about ten percent longer than a similar White drug trafficker. This translates into a sentence about

seven months longer. A similar effect is found for Hispanic drug offenders, with somewhat lesser

effects also found for non-drug and female Hispanic offenders. These findings indicate that all types

of Hispanic offenders are placed above the minimum required sentence more frequently than similar

White offenders, or receive somewhat lesser reductions when receiving a downward departure. The

same is true of Black drug trafficking offenders and Black males.

While any unexplained differences in the likelihood of incarceration or in the lengths of

prison terms imposed on minority and majority offenders is cause for concern, there is reason to

doubt that these racial and ethnic effects reflect deep-seated prejudices or stereotypes among judges.

Most noteworthy is that the effects, which are found only for some offense types and for males, are

also unstable over time. Separate year-by-year analyses reveals that significant differences in the

likelihood of imprisonment are found in only two of the last five years for Black offenders, and four

of the last five for Hispanic offenders. The effects for sentence length disappear for both Black and

Hispanic offenders in themost recent year for which data are available. Offense-to-offense and yearto-year fluctuations in racial and ethnic effects are difficult to reconcile with theories of enduring

stereotypes, powerlessness, or overt discrimination affecting sentencing of minorities under the

guidelines. In addition, the effects that we observe may be due in part to differences among groups

on factors that judges legitimately may consider when deciding where to sentence within the

guideline range or how far to depart, but on which we have no data. 

Unlike race and ethnic discrimination, the evidence is more consistent that similar offenders

are sometimes treated differently based on their gender. Gender effects are found in both drug and

non-drug offenses and greatly exceed the race and ethnic effects discussed above. The typical male

drug offender has twice the odds of going to prison as a similar female offender. Sentence lengths

for men are typically 25 to 30 percent longer for all types of cases. Additional analyses show that

the effects are present every year. 

Rules Having Questionable Adverse Impacts. Discrimination by sentencing judges cannot

explain the growing gap between African-American and other offenders observed during the

guidelines era. Another possibility is sentencing rules that have a disproportionate impact on a

particular demographic group. Research has shown that differences in the types of crimes committed

by members of different groups and in their criminal histories explains much of the gap in average

sentences among them. Rules that are needed to achieve the purposes of sentencing are considered

fair, even if they adversely affect some groups more than others. But if a sentencing rule has a

significant adverse impact and there is insufficient evidence that the rule is needed to achieve a

statutory purpose of sentencing, then the rule might be considered unfair toward the affected group.

In its cocaine reports, the Commission addressed crack cocaine defendants—over eighty

percent of whom are Black—who are given identical sentences under the statutes and the guidelines
xvi

as powder cocaine offenders who traffic 100 times as much drug (the so-called 1-to-100 quantity

ratio). The average length of imprisonment for crack cocaine was 115 months, compared to 77

months for the powder form of the drug. The Commission reported that the harms associated with

crack cocaine do not justify its substantially harsher treatment compared to powder cocaine. For

these reasons, the Commission recommended that cocaine sentencing be reconsidered. If the

Commission’s recommendations were adopted, the gap between African-American and other

offenders would narrow significantly. Other rules in the statutes and guidelines have adverse

impacts on particular groups. The efficacy of these rules for advancing the purposes of sentencing

should be carefully assessed. 

Summary and Conclusions

Significant achievement of the goals of sentencing reform. In general, the guidelines have

fostered progress in achieving the goals of the Sentencing Reform Act. Sentencing is more

transparent, based on articulated reasons stated in open court and reviewable on appeal. Punishment

is more certain and predictable, allowing the parties to better anticipate the sentencing consequences

of case facts, and allowing the system to better predict the impact of changes in policy on prison

populations and correctional resources. Sentence severity has been increased for many types of

crime, in some cases substantially. Most important, the guidelines do not admit consideration of

factors, such as race or ethnicity, that are irrelevant to the purposes ofsentencing. There is less interjudge disparity for similar offenders committing similar offenses.

 

Sentencing reform has had its greatest impact controlling disparity arising from the source

at which the guidelines themselves were targeted—judicial discretion. Disparity arising from the

decisions of other participants in the sentencing system, or from the process of sentencing

policymaking itself, has been less successfully controlled. Statutory minimum penalties are invoked

unevenly and introduce disproportionality and disparity when they prevent the guidelines from

individualizing sentences. Presentencing stages, such as charging and plea negotiation, lack the

transparency of the sentencing decision, making research more difficult. But significant evidence

suggests that presentencing stages introduce disparity in sentencing. There is still work to be done

to achieve the ambitious goals of sentencing reform in all respects. 

Partial implementation of the components of sentencing reform. Part of the reason not all

the goals of sentencing reform have been fully achieved is that not all of the components of

guidelines implementation put in place at the dawn of the guidelines era have been fully

implemented or have worked as intended. Probation officers conduct presentencing investigations

to the best of their abilities given limited resources. Judges conscientiously apply the guidelines to

the facts as they know them. Appellate review corrects guideline misapplications and alerts the

Commission to areas of ambiguity where clarification of the guidelines is needed. But neither

appellate review nor guidelines amendments have prevented, at least through the 2002 data currently

available, significant variations in departure rates. Neither Department policy nor judicial review

of plea agreements has prevented plea bargaining from sometimes circumventing proper application

of the guidelines needed to ensure similar treatment of offenders who commit similar crimes. 
xvii

The SRA also outlined three major components of sentencing policy development: 1)

utilization of research and criminological expertise developed by the Commission, 2) collaboration

among policymakers and front-line implementers in the courts, and 3) political accountability

through legislative directives and review. The Commission has worked to be responsive to the

concerns of Congress, and its priorities and policymaking agenda have been greatly influenced by

congressional directives and other crime legislation. In some cases, the results of research and

collaboration have been overridden or ignored in policymaking during the guidelines era through

enactment of mandatory minimums or specific directives to the Commission. 

The Commission is uniquely qualified to conduct studies using its vast database, obtain the

views and comments of various segments of the federal criminal justice community, review the

academic literature, and report back to Congress in a timelymanner. These are the processes set out

in the SRA, which established the Commission as the clearinghouse for information on federal

sentencing practices and the forum for collaboration among policymakers, implementers, and other

stakeholders. As an independent agency in the Judiciary, but with frequent interaction with the three

branches of government, the Commission is well-positioned to develop fair and effective sentencing

policy as long as it continues to receive the resources and support it needs to carry out its vital

mission.
xviii

Preface

Prior to November 1, 1987, the implementation of federal sentencing guidelines, sentencing

in the federal courts was very different. Crimes typically carried broad statute-defined ranges of

possible penalties and sentencing judges had discretion to choose the penalty within the statutory

range they felt would best achieve the purposes of sentencing. Judges were not required to explain

the reasons for their sentences, and the sentences themselves were largely immune from appeal. If

prison time was ordered, the time defendants actually served depended only partly on the sentence

imposed by the judge. Release dates generally were determined by the United States Parole

Commission and defendants typically served just 58 percent of the sentence that had been imposed

(BJS, 1987). 

These factors contributed to a widespread perception that sentences imposed and sentences

and prison terms served under the old “indeterminate” sentencing system were unfair, disparate, and

ineffective for controlling crime. Respect for law enforcement and the entire criminal justice process

was undermined when offenders served only a fraction of the sentence imposed by the judge. The

Sentencing Reform Act of 1984 [SRA] sought to establish sentencing practices that would eliminate

unwarranted disparity, assure certainty and fairness, reflect advances in criminological knowledge,

achieve proportionate punishment, and control crime through the deterrence, incapacitation, and

rehabilitation of offenders.

 The SRA established the U.S. Sentencing Commission, composed of federal judges and

other experts in the field of sentencing, and charged it with the task of promulgating sentencing

guidelines for federal courts. After eighteen months of deliberations, the Commission issued the

initial set of guidelines, which took effect on November 1, 1987. Four years later, in December

1991, the Commission submitted its report to Congress, The Federal Sentencing Guidelines: A

Report on the Operation of the Guidelines System and Short-term Impacts on Disparity in

Sentencing, Use of Incarceration, and Prosecutorial Discretion and Plea Bargaining to Congress.

The gradual implementation of the guidelines, which applied only to offenses committed after their

enactment, and numerous court challenges delayed full implementation until the early 1990s.

Furthermore, the guidelines were accompanied by changes of policy and practice that took time to

be fully established. Thus, when the Commission released its Four-year Evaluation, it noted the

report was a “preliminary assessment of some short-term effects” (USSC, 1991a) rather than a

comprehensive examination of the effects of the guidelines on federal sentencing practices.

Twenty years after the SRA was passed and with fifteen years of data on sentences imposed

under the guidelines, the Commission is in a better position to evaluate how well the changes

brought by the SRA have achieved the ambitious goals Congress set for federal sentencing. This

report will update the Four-year Evaluation and outline areas for further research in the continuing

evolution of sentence reform. 
xix

Overview of the Fifteen-Year Evaluation

Fifteen Years of Guidelines Sentencing is one of a series of publications describing the results

of the Commission’s fifteen-year anniversary evaluation of the guidelines. In addition to this report,

the Commission has published three other monographs: Cocaine and Federal Sentencing Policy

(May 2002), the third in a series of Commission reports on cocaine sentencing; A Survey of Article

III Judges on the Federal Sentencing Guidelines, Final Report (February 2003), which provides all

the findings of the Commission’s survey conducted as part of the Fifteen-Year Evaluation; and

Downward Departures from the Federal Sentencing Guidelines (October 2003). These reports are

available at the Commission website, www.ussc.gov. In addition, the Commission is releasing on

its website a research series on the recidivism of federal offenders. Two reports, Recidivism and the

First Offender and Measuring Recidivism: The Criminal History Computation of the Federal

Sentencing Guidelines are currently available. 

Fifteen Years of Guidelines Sentencingundertakes a survey of the federal sentencing system

in light of the goals for sentencing reform established by Congress in the SRA. It draws upon a

diverse pool of research, including work from both inside and outside the Commission. A

bibliography of the published research bearing on the effectiveness of the guidelines is included in

this report as Appendix A. The report picks up where the Four-Year Evaluation left off. The

Commission targeted three primary areas for special consideration in this report: 1) the guidelines’

impact on the transparency and rationality of sentencing, and the certainty and severity of

punishment, 2) the impact of presentencing stages and inter-judge and regional disparity, and 3)

research on racial, ethnic, and gender disparities in sentencing today. In all three areas, evidence

indicates that in the fifteen years under sentencing guidelines, we have made progress toward

meeting the goals of sentencing reform.

As policymakers reconsider the federal sentencing system’s purposes and effectiveness, the

Commission believes improvements in the system can best be achieved by careful consideration of

the best available evidence concerning what works in sentencing policy, what doesn’t work, and

what we still do not know. The Fifteen-Year Evaluation was designed to inform this debate by

summarizing the current state of “knowledge of human behavior as it relates to the criminal justice

process.” 28 U.S.C § 991(b)(1)(C).
1

Chapter One:

Introduction to the Sentencing Reform Act

A. The History of the Sentencing Reform Act

The history of the Sentencing Reform Act [SRA] has been described in the Commission’s

Four-Year Evaluation (USSC, 1991a), as well as in numerous articles and books listed in the

bibliography in Appendix A (see, e.g., Stith & Cabranes, 1998; Miller & Wright, 1999). This history

will not be recounted in detail here. Instead, this section briefly sketches the historical context of

sentencing reform, the legislative history of the SRA, and the initial development of the sentencing

guidelines for those who are unfamiliar with other sources, with an emphasis on aspects that are

valuable for understanding the workings of the guidelines system today. 

1. The Roots of Reform

Federal sentencing reform has been described as another in a line of twentieth century legal

reform movements that reflect two sometimes-competing American themes of Progressivism and

Populism (Brooks, 2002). In the realm of government, the Progressive spirit has generally favored

formation of public policy by expert agencies empowered to conduct research. By contrast, the

Populist spirit has generally favored formation of public policy based on common sense and public

sentiment.

The heritage of Progressivism can be seen in the SRA’s emphasis on creation of an expert and

independent agency, the United States Sentencing Commission. The SRA created a bipartisan

commission in the judicial branch of government, and directed it to establish a “research and

development program” (28 U.S.C. § 995 (a)(12)) that can “develop means of measuring the degree

to which the sentencing, penal, and correctional practices are effective in meeting the purposes of

sentencing.” 28 U.S.C. § 991(b)(2). The Commission is to establish sentencing polices that “reflect,

to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal

justice process . . . .” 28 U.S.C. § 991(b)(1)(C). These sections all reflect the Progressive impulse,

articulated by such early twentieth century reformers as John Dewey, to develop a scientific approach

to social problems. Creation of independent commissions was a favorite tool of Progressive

reformers intent on bringing expertise to public policymaking insulated from the passions of politics.

Early in the twentieth century, the Progressive impulse in criminal justice was expressed

through the growth of indeterminate sentencing and the rise of the rehabilitative ideal (Rothman,

1983). Prisons were re-conceptualized from places of penance and punishment to institutions for the

transformation of offenders into law-abiding citizens. Parole release and probation supervision were

invented as central components of the new approach. Medical and social-psychological experts were

called upon to design treatment and supervision programs, and indeterminate sentences allowed the
S. REP. NO. 225, 98th Cong., 2nd Sess. (1984), at 65 [hereinafter SENATE REPORT]. 1

2

length of incarceration to be tailored to each offender’s progress toward rehabilitation, as judged by

expert evaluators.

By the 1970s, faith in the rehabilitative ideal had declined (Allen, 1981), but faith in expert

commissions remained. Progressive-minded reformers were led to a search for alternatives to

indeterminate sentencing by growing mistrust of a “therapeutic state” and the dangers to liberty and

fairness it potentially posed (Kittrie, 1971; Twentieth Century Fund Task Force on Criminal

Sentencing, 1976), and by the lack of strong evidence for the effectiveness of correctional treatment

programs (Martinson, 1974). Several proposals to rationalize the federal criminal code (ALI, 1962;

ABA, 1968, 1979; Nat’l Comm. on Reform of Federal Criminal Law, 1971) included proposals for

sentencing reform. Judge Marvin Frankel’s influential book, Criminal Sentences: Law Without Order

(1972), called for creation of an independent sentencing commission that could replace judicial and

parole board discretion with sentencing guidelines. In this new Progressive vision, the medical model

of rehabilitation was replaced with legal and technocratic expertise, which could fashion penalties that

were calibrated to the seriousness of the crime (Von Hirsch, 1976) or that were optimal for

maximizing the control of crime while minimizing the costs of criminal justice (Becker, 1968). 

Alongside the sections of the SRA that reflect a Progressive spirit, however, are sections that

reflect a Populist distrust of both elite “experts” and politicallyunaccountable judges. The sentencing

guidelines were intended most importantly to curtail judicial and Parole Commission discretion,

which was viewed as “arbitrary and capricious” and an ineffective deterrent to crime. The 1

Sentencing Commission was also ordered to eliminate sentences that, in the view of Congress, “in

many cases . . . do not accurately reflect the seriousness of the offense.” 28 U.S.C. § 994(m). The

SRA contains dozens of other detailed instructions to the Commission, including directives to

consider “the community view of the gravity of the offense;” and “the public concern generated by

the offense . . . .” 28 U.S.C. § 994(c). Most importantly, while the Commission is charged with

developing and amending the guidelines, the SRA ensures that the people’s elected representatives

in Congress have an opportunity to review the Commission’s work before it becomes law. Congress

reserved to itself the power, each year, to “modify or disapprove” any of the Commission’s

amendments to the guidelines. 28 U.S.C. § 994(p). 

Distrust of judges is a recurring theme of Populism, voiced early in the twentieth century by

Nebraska Senator George Norris (1922), who declared that “Federal judges are not responsive to the

pulsations of humanity” (Brooks, 2002). On two major occasions in the second half of the twentieth

century, this distrust led to a very different type of determinate sentencing reform—a proliferation of

mandatory minimum penalty statutes. Fixed mandatory penalties had been common in Colonial times

but grew increasingly rare during the nineteenth century (Lowenthal, 1993). In 1956, however,

Congress enacted the Narcotic Control Act, also known as the “Boggs Act,” which established

minimum terms of imprisonment without parole for certain drug trafficking offenses. Finding that
 S. REP. NO. 613, 91st Cong., 1st Sess. 2 (1969). 2

3

increases in sentence length “had not shown the expected overall reduction in drug law violations”

2

Congress pulled back from statutory minimum penalties with passage of the Comprehensive Drug

Abuse Prevention and Control Act of 1970, which repealed virtually all of the mandatory sentencing

provisions. But beginning again in 1984, with expansions in 1986 and 1988, Congress enacted a

series of mandatory penalties targeted at firearm, drug, and sex offenses, and at repeat offenders.

Over one hundred such statutory penalties exist today alongside the sentencing guidelines, and more

mandatory penalty provisions continue to be proposed in almost every session. 

The tension between Commission developed guidelines and Congress enacted mandatory

minimum penalty statutes greatly complicates the task of sentencing reform, as discussed in the

Commission’s Special Report to Congress: Mandatory Penalties in the Federal Criminal Justice

System (USSC, 1991b). The root tension between Progressive and Populist reform—between

delegation to experts and popular oversight—also contributed to a lengthy process of public debate

and legislative development before final passage of the SRA in 1984. These tensions resulted in

legislation that reflects aspects of both movements, and thus, compromises and contradictions in both

the goals to be achieved by sentencing reform and in the mechanisms created to achieve them. 

2. Legislative Development of the SRA

The legislative history of the SRA has been subject to widely varying interpretations. Some

scholars view the legislation as a thoughtful blueprint for rationalizing the sentencing process, with

significant liberal elements meant to reduce over-reliance on imprisonment and preserve significant

judicial discretion, albeit with some compromise of these principles as the legislation took final shape

(Miller & Wright, 1999). Others believe the SRA was subtly transformed from the liberal blueprint

originally introduced by Senator Edward Kennedy in 1975 into a law-and-order measure designed to

increase the severity of punishment and virtually eliminate judges’ discretion to consider individual

offender characteristics (Stith & Koh, 1993). Most agree, however, that the legislation that emerged

from nearly a decade of deliberation and compromise contained important ambiguities, which left the

original Sentencing Commission with significant administrative discretion to shape the guidelines

system it was directed to create (Feinberg, 1993; Miller & Wright, 1999; Hofer & Allenbaugh, 2003).

The legislation that ultimately became the SRA survived the introduction of competing

proposals in both the House and Senate. It was repeatedly amended over a decade of development

before enactment, somewhat surprisingly, on October 12, 1984, as part of an omnibus continuing

appropriations measure. The final version differed from the bill that was originally introduced and

from competing proposals in many important respects.
4

 Sentencing Reform Act Time Line

Jan. 1971 National Commission on Reform of Federal Criminal Laws (the “Brown

Commission”) issues report. The commission recommends classification

and grading of offenses, concise listing of authorized sentences, limits on

the cumulation of punishment for multiple offenses, parole following

longer periods of imprisonment, and limited appellate review.

Nov. 1971 U.S. District Judge Marvin E. Frankel (S.D.N.Y.) delivers lectures at the

University of Cincinnati Law School, calling for a national commission to

study sentencing, corrections, and parole; formulate laws and rules on the

basis of the research; and enact rules subject to congressional veto.

1971-1974 Senate Subcommittee on Criminal Laws and Procedures considers Brown

Commission proposals. The subcommittee holds hearings during the 92nd

 Congress and in the 93rd focuses on two legislative proposals: (1) S. 1,

the Criminal Justice Codification, Revision, and Reform Act of 1973 and

S. 1400, the Criminal Code Reform Act of 1973. The bills include largescale criminal code re-codification. No mention is made of a sentencing

commission or sentencing guidelines.

1975 Yale Law School professors (with support of the Guggenheim Foundation)

advocate creation of a sentencing commission to issue sentencing

guidelines, appellate review of sentences, and the abolition of parole.

Nov. 1975 Sen. Edward Kennedy introduces bill during the 94th Congress (S. 2699)

to form United States Commission on Sentencing to issue sentencing

guidelines and to reduce numerous statutory maximum sentences. 

May 1976 The Parole Commission and Reorganization Act of 1976 (Pub. L. No. 94-

233, 90 Stat. 219 (May 14, 1976)) is enacted. The act codifies the Parole

Commission’s program that applied guidelines to all parole decisions

beginning in 1974.

1977-78 In the 95th Congress, Senator McClellan and Sen. Kennedy sponsor S.

1437 to re-codify federal criminal laws, restrict parole, and to establish a

sentencing commission to draft sentencing guidelines. An amended S.

1437 passes the Senate. The Subcommittee on Criminal Justice of the

House Judiciary Committee subsequently conducts hearings on the bill

and an alternative proposal, but reports a number of problems and takes no

further action.
5

 Sentencing Reform Act Time Line (Continued)

1979-1980 During the 96th Congress, S. 1722, the Criminal Code Reform Act of 1979

is introduced, which is similar to S. 1437 and creates a sentencing

commission, but abolishes parole and adds the concept of supervised

release. The House JudiciaryCommittee approves a sentencing bill (H.R.

6915) that proposes promulgation of guidelines by a seven-member, parttime, Judicial Conference Committee on Sentencing; authorizes greater

flexibility to depart from those guidelines; and retains parole. Neither

chamber acts on its version of the legislation.

1982 During the 97th Congress, Senate Judiciary Committee, reports a

comprehensive criminal code revision bill, S. 1630, but no Senate action

occurs on the proposal. A nearly identical sentencing reform package, S.

2572, passes the Senate, but gets deleted from the House version of the

bill.

1983-1984 Senators Strom Thurmond and Paul Laxalt, during the 98th Congress,

introduce S. 829, comprehensive crime control legislation that contains

sentencing reform as Title II. Senate Judiciary Committee holds hearings

and breaks S. 829 into several bills, including S. 1762, the Comprehensive

Crime Control Act of 1983, which contained a major section on sentencing

reform, and S. 668, a bill by Sen. Kennedy virtually identical to Title II.

Both bills pass the Senate in 1984.

The House Judiciary Committee reports out H.R. 6012 that calls for

determinate parole terms and the creation of a part-time commission

within the Judicial Conference to draft advisory sentencing guidelines.

The bill is not considered by the full House.

An amended Comprehensive Crime Control Act is made part of a

continuing appropriations bill, is passed by both chambers of Congress,

and is signed into law by President Reagan on October 12, 1984. The

portion of the act creating the United States Sentencing Commission and

instructing it to create sentencing guidelines for the federal courts is

termed the Sentencing Reform Act of 1984.
 S. 1437, 95th Cong., 1st Sess. (1977). 3

 H.R. 6915, 96th Cong., 2nd Sess. (1980). 4

6

Away from judicial control of

guidelines development. The bill originally

introduced by Sen. Kennedy and subsequent 3

competing proposals in the House called for 4

development of sentencing guidelines within

the existing administrative structure of the

judiciary. Some proposals called for guidelines

to be developed by a committee of the Judicial

Conference of the United States. Sen.

Kennedy’s bill called for a commission whose

members would be chosen entirely by the

Judicial Conference. But over its years of

development, the idea of the Sentencing

Commission was transformed from a judgedominated agency to an agency whose

membership is more closely connected to the

Executive and Legislative branches. Under the

terms of the SRA, as finally enacted, all

commissioners are to be chosen by the

President with the advice and consent of the

Senate. 28 U.S.C. § 991(a). The role of the

Judicial Conference was reduced from choosing

the commissioners, to recommending a list of

judges from which the President would be

required to choose, to recommending a list of

six judges which the President is required only

to “consider.” The SRA required just three of

seven voting commissioners to be active federal

judges. The PROTECT Act recently further

changed the Commission structure to eliminate

the requirement of a minimum judicial presence

on the Commission and set the maximum

number of judge-members at three.

Proponents of judicial involvement had

argued that the judiciary already had the

capacity for guidelines development, which was

similar to their existing responsibility for

developing rules of practice and procedure for

the courts. Some members of the House

believed that “[j]udges who have had a strong

 The U.S. Sentencing 

 Commissioners

The seven voting members on the

Commission are appointed by the President,

confirmed by the Senate, and serve staggered

six-year terms. The Commission has always

included federal judges, which are selected after

considering a list ofsix judges recommended to

the President by the Judicial Conference of the

United States. The Commission has a chair and

three vice chairs. 

No more than four commissioners, or

two vice chairs, may belong to the same

political party. The Attorney General or his/ her

designee is a non-voting, ex-officio member of

the Commission, as is the chair of the U.S.

Parole Commission. No commissioner may

serve more than two full terms. When an

appointment expires, the commissioner may

continue to serve until Congress adjourns sine

die or a new commissioner is appointed. Four

affirmative votes are necessary for the

Commission to pass sentencing policy.

Since its inception there have been four

Commission chairs: Judge William W. Wilkins,

Jr., U.S. Court of Appeals, Fourth Circuit;

Judge Richard P. Conaboy, U.S. District Court,

Middle District of Pennsylvania; Judge Diana E.

Murphy, U.S. Court of Appeals, Eighth Circuit;

and the present chair, Judge Ricardo H.

Hinojosa, U.S. District Court, Southern District

of Texas. 
H.R. REP. NO. 1017, 98th Congress, 2nd Session, at 93-94 (1984). 5

CONG. Q., 1983, at 339. 6

 124 CONG. REC. 382-83 (1978) (unprinted amend. No. 1100, adopted Jan. 23, 1978).

7

7

voice in developing the guidelines will be more likely to consistently and fairly apply them.” But 5

the prevailing opinion was “a reluctance to have the people in the middle of the problem try to solve

it.” Rather than retain even tighter control over sentencing—as some states such as California had

6

with legislatively drafted determinate sentences, and as Congress itself did when enacting mandatory

minimum penalties—Congress instead opted for an independent Commission within the Judiciary

with close connections to the Legislative and Executive Branches.

Away from voluntary guidelines. As it developed, sentencing reform legislation shifted from

a model that continued significant discretion for sentencing judges toward a model of sharply limited

discretion. Sentencing guidelines systems in the states range along a continuum from “voluntary” or

“advisory,” to “presumptive,” to “mandatory” (BJA, 1998). The differences among them are marked

by the standards governing when a judge may depart from the recommended guideline range, and the

extent of appellate review of those departures. The original federal legislation called for advisory

guidelines with limited appellate review. During Senate debates in 1978 however a standard was

added requiring that judges sentence within the prescribed guideline range unless “the court finds that

an aggravating or mitigating circumstance exists that was not adequately taken into consideration by

the Commission in formulating the guidelines and that should result in a different sentence.” This 7

was intended to ensure that the guidelines were treated as “presumptive” rather than “voluntary”

(Miller & Wright, 1999). Subsequent attempts to loosen the departure standard in the Senate and the

House were defeated (Stith & Koh, 1993). 

The final SRA also provided for an automatic right-of-appeal if a judge sentences outside the

prescribed guideline range. 18 U.S.C. § 3742. Defendants have an automatic right-of-appeal if a

judge departs upward (imposes a sentence that is longer than the top of the guideline range). The

government has an automatic right-of-appeal if the judge departs downward. Sentences may also be

appealed by either party based on a misapplication of the guidelines. 

As the guidelines were taking effect in 1987, the departure standard was again revisited and

revised slightly: 

The court shall impose a sentence of the kind, and within the range [required by the

guidelines] unless the court finds that there exists an aggravating or mitigating

circumstance of a kind, or to a degree, not adequately taken into consideration by the

Sentencing Commission in formulating the guidelines that should result in a sentence

different from that described” (new language italicized). 18 U.S.C. § 3553(b). 

The author of this amendment, Rep. John Conyers, apparently intended it to expand the discretion of

the sentencing judge to depart from the guidelines. However, a “joint explanation” inserted into the

Congressional Record by several senators contradicted this analysis (Miller & Wright, 1999).
8

Thus, the legislative history and final text of the SRA are somewhat ambiguous as to just how

restrictive the departure standard was intended to be, particularly in combination with other provisions

of the Act. Ultimately, actions of the Commission, the appellate courts, and Congress shaped where

the federal guidelines fall on the continuum between presumptive and mandatory. Prior to the

Blakely v. Washington: A New Challenge 

for Federal Sentencing Reform

On June 24, 2004, the Supreme Court decided Blakely v. Washington, 124 S.Ct. 2531

(2004), a case with potentially profound consequences for the federal sentencing guidelines and

for the sentencing reform movement. The court invalidated a sentence imposed under the

Washington State sentencing guidelines because it violated the defendant’s rights under the Sixth

Amendment to the United States Constitution. The judge in the case had departed from the

standard sentencing range, set out by the legislature in the state’s sentencing statutes, based on an

aggravating factor that had not been admitted by the defendant as part of his guilty plea nor proven

to a jury beyond a reasonable doubt. 

Although the majority opinion made clear that the court was not passing judgment on the

constitutionality of the federal sentencing guidelines, which were not before the court, some of the

dissenting justices and numerous commentators argued that the decision raised questions about

the constitutionality of the federal guidelines or the procedures used to enhance sentences under

them. District judges and circuit courts have reached varying opinions on the implications of the

decision for federal sentencing. The Supreme Court has accepted certiorari in two cases in order

to clarify the implications of Blakely, if any, for the federal sentencing guidelines. Oral arguments

were given in United States v. Booker ( 375 F.3d 508 (7th Cir. 2004)) and United States v. Fanfan

(2004 U.S. Dist. LEXIS 18593 (D.Me. June 28, 2004) on October 4, 2004, the first day of the

court’s 2004-2005 term, with a decision in the case expected later in the year.

 Until these questions are resolved, the ultimate status of the federal sentencing guidelines

will remain uncertain. In the meantime, numerous observers have hoped that the Blakely decision

will inaugurate a renewed national conversation about the state of federal sentencing and the

sentencing guidelines. (Testimony of witnesses at a hearing before the Senate Judiciary

Committee, “Blakely v. Washington and the Future of the Federal Sentencing Guidelines,” July

13, 2004.) The Commission will be part of this conversation and believes that the results of the

Fifteen-Year Evaluation of the guidelines can make an important contribution to understanding

and improving federal sentencing.
 124 S.Ct. 2531 (June 24, 2004).

8

 S. 1437, supra note 3, at § 124. 9

 130 CONG. REC. 1644, 838 (1984)(statement of Sen. Strom Thurmond).

10

9

Supreme Court’s decision in June, 2004, in the case of Blakely v. Washington, which again raised 8

questions about the constitutionality of the federal guidelines, all observers agreed that the federal

guidelines were far from voluntary. Judges were legally bound to apply them unless a departure could

be justified to the appellate court if the case were appealed. But whether the guidelines were

sufficiently mandatory was a source of continuing debate. 

In 2003, Congress concluded that the governing standards for appellate review of departures

had resulted in an unacceptably high downward departure rate, particularly in the area of sex offenses

against children. For these latter offenses, the PROTECT Act of 2003 eliminated judicial departures

for all reasons except those specifically authorized in Chapter Five, Part K, of the Guidelines Manual.

For other downward departures, the PROTECT Act established de novo review upon appeal. The Act

also directed the Sentencing Commission to amend the guidelines and policy statements in order to

substantially reduce the incidence of downward departures. The Commission implemented this

directive in amendment 651, which narrowed the circumstances in which departure is authorized.

Results of a Commission study of downward departures was published simultaneously with the

amendment (USSC, 2003b). 

The PROTECT Act made other changes to sentencing policies and practices that will be

discussed further where appropriate in the remainder of this report. It also established requirements

for reporting sentencing and departure information to the Commission and, upon their request, to the

Department and Congress. Data from these new reporting requirements are not available at the time

this report is being written, but departures will continue to be closely monitored by the Commission.

Toward greater sentencing severity. Changes in the legislation through its decade of

development also encouraged the Commission, and in some cases required it, to increase sentence

severity. Provisions designed to control or reduce the use of imprisonment were weakened. For

example, the bill as originally introduced directed the Commission to assure that the capacity of the

federal prisons “will not be exceeded.” But, in the final SRA the Commission is required only to 9

“minimize the likelihood” that prison capacity will be exceeded. 28 U.S.C. § 994(g). Similarly,

while the original legislation encouraged the Commission to be guided by the prison terms then

typically served for various types of crime, the final Act specifically directed the Commission to use

then-current practice only as a “starting point.” The Commission was to “insure that the guidelines

reflect the fact that, in many cases, current sentences do not accurately reflect the seriousness of the

offense.” 28 U.S.C. § 994(m). 

As described above, the SRA contains other provisions reflecting a Populist belief that judges

tend toward leniency and should be constrained by “guidelines and policy statementsthat have teeth

in them.” The final SRA also contained an early type of “Three-Strikes-You’re-Out” provision that 10

requires a term “at or near the maximum term authorized” for repeat drug and violent offenders. 
 SENATE REPORT, supra note 1, at 63. 11

Id.

12

10

28 U.S.C. § 994(h). As will be shown in Chapter Two, the SRA ultimately resulted in guidelines that

have contributed to a doubling of the average prison time served by federal felony offenders.

Toward regulation of plea bargaining. Finally, concern that charge selection and plea

bargaining could limit or thwart the goals of sentencing reform surfaced early in scholarly writings

(Twentieth Century Fund, 1976; Zimring, 1976) and in congressional debates (see Schulhofer &

Nagel, 1989). Reform skeptics pointed out that prosecutors had considerable discretion to select

charges and structure plea agreements, but that in the preguidelines era judges and the Parole

Commission, in setting sentences and release dates, could temper the effects of prior prosecutorial

decisions. Binding sentencing guidelines, without parole, could eliminate these checks, and

prosecutors could conceivably exercise considerable control over sentences through the charges they

bring and the facts they prove at sentencing. The result would be a shift of discretion toward

prosecutors, which could perpetuate disparity and reduce the certainty of punishment. 

In 1978, in response to these concerns, the Federal Judicial Center [hereinafter FJC] undertook

a study of the interaction of prosecutorial discretion and sentencing (FJC, 1979). It concluded that

in the preguidelines era, judges could control the impact of plea bargaining in various ways. Under

sentencing guidelines, however, discretion could be transferred to prosecutors. Further, the exercise

of prosecutorial discretion would be relatively invisible; unless some judicial mechanism were found

to control it, plea bargaining would be subject to supervision only within the Department of Justice

and each U. S. attorney’s office. The report recommended that the sentencing reform bills then

pending before Congress should be amended by adding a directive to the Sentencing Commission to

issue guidelines for judges to use when deciding whether to accept a guilty plea. 

The FJC report heightened congressional concern that sentencing reform might actually

increase disparities in federal sentencing by shifting discretion to prosecutors (see Schulhofer &

Nagel, 1989). To address this possibility, Congress adopted a slightly weakened version of the

mechanism recommended in the report. The Senate amended the pending bill to direct the Sentencing

Commission to issue policy statements, instead of binding guidelines, governing the acceptance of

plea agreements. This provision was included in the SRA as 28 U.S.C. § 994(a)(2)(E), which ordered

the Commission to promulgate policy statements to all courts regarding the appropriate use of “the

authority granted under Rule 11(e)(2) of the Federal Rules of Criminal Procedure to accept or reject

a plea agreement . . . .” The Senate Report accompanying the SRA confidently asserted that “this

guidance will assure that judges can examine plea agreements to make certain that prosecutors have

not used plea bargaining to undermine the sentencing guidelines.” 

11

 

By the time the SRA was signed into law by President Reagan in 1984, it had undergone

nearly ten years of development. It was designed to revamp a federal sentencing system Congress

described as “ripe for reform.”12
 SENATE REPORT, supra note 1, at 41-46. 13

11

B. Goals and Purposes of the SRA 

The goals identified in the SRA for the new system provide the best criteria for judging

whether sentencing reform has been successful. These goals can be divided into two groups. The

first group, the goals of sentencing reform itself, include certainty and transparency in punishment

and the elimination of unwarranted disparity. Research on the effectiveness of the system at

achieving these goals is the subject of the remaining chapters of this report. The second group,

establishment of policies that will best accomplish the purposes of sentencing—which are usually

summarized as just punishment, deterrence, incapacitation, and rehabilitation—is the subject of

previous Commission-sponsored research (see Rossi & Berk, 1996) as well as ongoing research at

the Commission. Results of this work will be addressed in future installments of the research series

on the recidivism of federal offenders and other commission reports. 

1. The Goals of Sentencing Reform

Reducing unwarranted disparity. The “first and foremost” goal of sentencing reform is

avoiding unwarranted sentencing disparity (Feinberg, 1993). Much has been written defining

unwarranted disparity (Blumstein, 1983). Obviously, not all different treatment of offenders is unfair,

so long as it reflects differences in the seriousness of their crimes or in other relevant case or offender

characteristics. But sentencing reform aimed to: 

(B) provide certainty and fairness in meeting the purposes of sentencing, avoiding

unwarranted sentencing disparities among defendants with similar records who have

been found guilty of similar criminal conduct while maintaining sufficient flexibility

to permit individualized sentences when warranted by mitigating or aggravating

factors not taken into account in the establishment of general sentencing practices;

28 U.S.C. § 991(b)(1)(B) (emphasis added).

Section 994(f) reiterates this goal of “providing certainty and fairness in sentencing and reducing

unwarranted sentence disparities.”

The possibility that different racial or ethnic groups might receive unfair treatment was part

of the motivation for the SRA, and it remains the subject of much public and scholarly interest.

Research investigating the role of race, ethnicity, and gender in federal sentencing is presented and

discussed in Chapter Four of this report. The legislative history of the Act clearly shows, however,

that different treatment by different judges was the chief problem the Act was designed to address,

as well as regional differences in sentencing. The success of the guidelines at reducing inter-judge 13

and regional sentencing disparities will be discussed in Chapter Three of this report.

Assuring certainty and severity of punishment. In a narrow sense, the success of the

guidelines at achieving certainty of punishment has never been an issue, because the establishment

of truth-in-sentencing through the elimination of parole accomplished it at a stroke. In a broader
12

sense, however, certainty of punishment is weakened when defendants are not held accountable for

all of the criminal acts they actually committed. Charging or plea bargaining practices that allow

defendants to avoid punishment for some acts, can undermine the certainty of punishment in this

sense. Existing evidence regarding the effects of charging decisions, plea bargaining, and guideline

avoidance on the certainty of punishment and on sentencing disparity will be reviewed in Chapter

Three of this report. 

The SRA also called for increased sentence severity for many types of offenses. The effect

of the guidelines on the use of probation and the length of time served for various types of crime will

be discussed in Chapter Two of this report. 

Increased rationality and transparency of punishment. Finally, the SRA aimed to increase

the rationality and transparency of sentences. By replacing the unguided discretion of the

preguidelines era with a system of binding legal rules that specify in advance the effect of most

offense circumstances the predictability of sentences was increased. Rationality was further advanced

by requiring the Commission to develop policies and practices that “reflect, to the extent practicable,

advancement in knowledge of human behavior as it relates to the criminal justice process” (28

U.S.C.§ 991(b)(1)(C)) and to “developmeans ofmeasuring the degree to which the sentencing, penal,

and correctional practices are effective in meeting the purposes of sentencing.” 28 U.S.C.§ 991(b)(2).

Transparency was advanced by requiring each judge to “state in open court the reason for its

imposition of the particular sentence” and to provide a written record of these reasons. 18 U.S.C.

3553(c). Disclosure of the presentence report, with its preliminary application of the guidelines to

each case, at least ten days before the sentencing hearing, further reduces the possibility of surprise

and confusion regarding the reasons for the sentence ultimately imposed. 18 U.S.C. § 3552(d). The

increased rationality, transparency, and predictability of the guidelines system will be discussed in

Chapter Five of this report. 

2. The Purposes of Punishment 

In addition to these goals of sentencing reform, the SRA directed the Commission to: 

“(1) establish sentencing policies and practices for the Federal criminal justice system that—(A)

assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2) of Title 18, United

States Code.” 28 U.S.C. § 991(b)(1). That section lists the purposes as: 

(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[.]

Proportionality: Making the Punishment Fit the Crime. The vast majority of the sentencing

guidelines, particularly in Chapters Two and Three of the Guidelines Manual, are aimed at assuring

that the severity of punishment is proportional to the seriousness of the crime. Each crime is assigned

a “base offense level” as a starting point in grading the seriousness of the offense. Guideline
13

adjustments then increase or decrease this score to account for aggravating or mitigating factors that

differentiate degrees of harm of different offenses and the varying culpability in each case. The

Commission has used a wide variety ofinformation to assess crime seriousness, including survey data

on public perceptions of the gravity of different offenses, analysis of various crimes’ economic

impacts, and medical and psychological data on the harm caused by drug trafficking, sexual assaults,

pollution, and other offenses. 

Crime control through incapacitation and deterrence. The original Commission recognized

crime control as the ultimate objective of the criminal law and of sentencing policy (Guidelines

Manual, Historical Introduction, at 2). It also recognized that proportionate punishment can control

crime through a deterrent effect. It followed the practice of most state guideline systems (Kauder, et

al., 1997) and the federal Parole Commission—which had developed a “Salient Factor Score” to help

predict the recidivism risk of various offenders—by increasing the term of imprisonment for offenders

who were at a greater risk of recidivism (Hoffman & Beck, 1997). To minimize conflict with the

other purposes of punishment, the Commission chose to predict risk using only the offender’s

criminal history (Hofer & Allenbaugh, 2003). Chapter Four of the Guidelines Manual provides rules

for assigning each offender to a “criminal history category” which, along with the offense level,

determines the range of imprisonment and sentencing options available to the judge.

As part of the Fifteen-Year Evaluation, the Commission has undertaken a major empirical

study of the recidivism of federal offenders. The results of this study, published as Release 1 in the

Research Series on the Recidivism of Federal Guideline Offenders, have reconfirmed the validity of

the criminal history score as a measure of recidivism risk (USSC, 2004). Further analysis of these

data will allow the Commission to refine the criminal history category to make it an even more

accurate predictor of risk. Additional research is also underway to assess the deterrent effect of

various terms of imprisonment and other aspects of the guidelines’ efforts at crime control.

Rehabilitation. The SRA directs judges to consider each defendant’s need for educational

and treatment services when imposing sentence. However, the SRA and the guidelines make

rehabilitation a lower priority than other sentencing goals (see Hofer & Allenbaugh, 2003). For

example, the Commission was directed to ensure that “the guidelines reflect the inappropriateness

of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant.”

28 U.S.C. § 994(k). Despite the relatively low priority given rehabilitation, judges are still required

to assess a defendant’s need for treatment ortraining when they decide whether to impose any special

conditions of probation or supervised release. See USSG §5D1.3(d). (Supervised release has replaced

parole as the means to provide offenders with post-imprisonment supervision.) Because prison

rehabilitation programs are administered by the Bureau of Prisons and post-imprisonment programs

are administered by the probation service of the Administrative Office of the United States Court,

these agencies have conducted the most extensive research on the effectiveness of treatment and

training programs (BOP, 1997).
14

C. The Commission’s Implementation of the SRA

A number of articles by original commissioners have described in detail how they set about

implementing the directives in the SRA (Breyer, 1988; Nagel, 1990; Wilkins, 1992a; Corrothers,

1992). The details of these efforts will not be repeated here, but a brief summary of the guideline

development process is provided for readers unfamiliar with the history of the Commission. An

introduction to how the guidelines determine the sentence is also provided for those unacquainted

with the guidelines’ operation.

1. Guidelines Drafting Procedures

Sentencing Philosophy. The SRA directed theCommission to develop guidelines that would

advance all of the goals of sentencing reform and all the purposes of sentencing reviewed above.

Sentencing philosophy was a source of much discussion among the original Commissioners. For the

first 18 months of its existence, competing versions of the Guidelines were developed and debated,

each built on different theoretical principles, such as just desert theory or the economics-based theory

of optimal penalties (Nagel, 1990). None of these proposals gained sufficient support to win

acceptance, so the Commission decided to use an empirical approach instead (see Breyer, 1988, for

a fuller discussion of these developments). 

Although the Commission has never explicitly articulated a philosophy of sentencing, the

guidelines rules themselves reflect a fairly clear ordering (Bowman, 1996; Hofer & Allenbaugh,

2003). Like guideline systems in the states, the federal guidelines reflect the current “consensus

model of criminal punishment” (Frase, 2003), a formof “limiting retributivism” (Morris, 1977). This

approach places primary emphasis on punishment proportionate to the seriousness of the crime and,

within the broad parameters of this retributivism, lengthier incarceration for offenders who are most

likely to recidivate. Some scholars call this approach “modified just desert” (Monahan, 1982). The

Commission approvingly cited scholars working within this model in the Supplementary Report that

accompanied promulgation of the guidelines (USSC, 1987, p. 16). 

The use of data on past practices and recidivism. The original Commission based the

guidelines on many considerations, including distinctions made in the substantive criminal statutes,

the United States Parole Commission's guidelines, and public commentary. However, an important

starting point in the deliberations was a statistical analysis of preguidelines sentencing practices. The

Commission analyzed detailed data drawn from more than 10,000 reports of offenders sentenced in

1985 and additional data from approximately 100,000 more federal convictions. The Commission

determined the average prison term likely to be served for each generic type of crime. These averages

established offense levels for each crime, which were directly linked to a recommended imprisonment

range. Aggravating and mitigating factors that significantly correlated with increases or decreases

in sentences were also determined statistically, along with each factor’s magnitude (USSC, 1987).

These formed the bases for “specific offense characteristics” for each type of crime, which adjusted

the base offense level upward or downward.
 28 U.S.C. § 994(i). 14

 28 U.S.C. § 994(b)(2).

15

15

The Commission used the statistical results as a starting point for deliberations, departing from

past practice when a majority of the Commissioners agreed there was a reason to do so. Guidelines

for most crimes were based on past practices, but important considerations led the Commission to

depart from past practices for certain crimes such as fraud and drug trafficking. Some of these

considerations were driven by statute. The SRA required that the Commission provide “a substantial

term of imprisonment” for certain categories of offender, and statutoryminimum penalties, enacted

14

as the guidelines were being drafted, dictated many terms of the drug trafficking guidelines. The

Commission also sought to correct past under-punishment of crimes, such as “white collar” crimes.

In addition to the offense level, the guidelines take into account each offender’s criminal

history. The offender’s “criminal history score,” designed to predict recidivism, is based on the

frequency, seriousness, and recency of prior criminal convictions, and whether the offender was under

criminal justice supervision at the time of the present offense. The rules the Commission developed

were based on factors that prior research had found to be empirically related to the likelihood of future

criminal behavior (Hoffman & Beck, 1997). The criminal history score was designed to predict

recidivism, but uses only criminal history to do so (as opposed to also using employment or drug use

history, as had the Parole Commission’s salient factor score). In this way, the Commission sought

to reduce the tension between preventing future crime and just punishment for the current crime.

Offenders with prior convictions were shown to be more likely to recidivate, and also were viewed

as more culpable and therefore more deserving of punishment.

The necessary level of detail. One important question in developing the guidelines was how

much detail to build into the system, that is, how many different offense level adjustments and

criminal history categories were needed to adequately differentiate among crimes and offenders. A

very simple system could produce sentence uniformity, but at the expense of proportionality. A few

general categories might make the guidelines easy to administer, but at the cost of lumping together

offenders who are very different in important respects. This problem arises in statutory minimum

penalties that require the same penalty for very different offenders—for example, at least ten years

imprisonment for all offenders who traffic in a certain quantity of drug, regardless of the mitigating

factors that may be present in some of the cases (USSC, 1991(b)).

 

On the other hand, a sentencing system that attempts to account for every conceivable offense

and offender characteristic relevant to sentencing could quickly become unworkable. As the number

and complexity of decisions needed to apply the guidelines increase, so do the resources required for

investigations and sentencing hearings, as well as the risk that different judges will apply the

guidelines differently (Ruback & Wroblewski, 2001). In the end, the original Commission balanced

these concerns and devised a Sentencing Table with 43 offense levels and 6 criminal history

categories with overlapping ranges of imprisonment. In creating this table the Commission was

guided by the provision in the SRA, sometimes called the “25 percent rule,” which requires that the

maximum of each recommended sentencing range exceed the minimum of the range by no more than

six months or 25 percent of the minimum range, whichever is greater. This rule requires guidelines 15

of sufficient detail to assign offenders to relatively narrow ranges of recommended prison terms.
16

2. How the Guidelines Determine the Presumptive Sentence

The federal sentencing Guidelines Manual sets out the rules that determine the presumptive

guideline range in every case and contains additional policy statements, background commentary, and

application notes to assist courts in applying the guidelines as intended. The manual is revised

annually, and all versions can be found at the Commission’s website www.ussc.gov. The basic

structure of the guidelines, has remained constant throughout the guidelines era. 

General application principles. Chapter One of the manual lays out the steps to be followed

in determining each offender’s guideline range. The process begins with deciding which guideline

from Chapter Two best applies to each count of conviction or group of closely related counts.

(Counts that are closely related—for example, fraud and conspiracy to commit the fraud, or multiple

drug sales that are part of an ongoing common scheme—are treated as single offenses and sentenced

under the same Chapter Two guideline according to the “Multiple Count” rules in Chapter Three, Part

D.) If a plea agreement stipulates a more serious offense than the offense of conviction, the Chapter

Two guideline for the more serious offense is used. USSG §1B1.2.

A preliminary offense level is then determined under Chapters Two and Three for each count

or group of counts. In determining which base offense level, specific offense characteristics, crossreferences among guidelines, or other special instructions apply, the court considers all “relevant

conduct.” The relevant conduct rule has been called the “cornerstone” of the guidelines system

(Wilkins & Steer, 1990) and it is described in greater detail later in this chapter. After the offense

levels for all counts or groups have been determined, a “combined offense level” is determined

according to the multiple count rules found in Chapter Three, Part D. This offense level may be

reduced by two or three levels if the offender qualifies for a reduction under the “acceptance of

responsibility” guideline found in Chapter Three, Part E. The court then determines the offender’s

criminal history score and placement in a Criminal HistoryCategory. Together, the offense level and

criminal history category determine where the defendant’s case falls in the Sentencing Table.

The offense level. Each guideline contains a base offense level, which is the starting point

for ranking the seriousness of each particular offense. More serious types of crime have higher base

offense levels; for example, trespass has a base offense level of 4, while kidnaping has a base offense

level of 32. Most guidelines include a number of specific offense characteristics, which can increase

or decrease the offense level. For example, the guideline for theft increases the offense level based

on the amount of loss involved in the offense. The guideline for robbery increases the offense level

by five if a firearm was brandished or possessed, and by seven if a firearm was discharged. 

Chapter Three contains additional offense level adjustments that pertain to all kinds of

offenses. Categories of adjustments include: victim-related adjustments, the offender’s role in the

offense, and obstruction of justice. For example, if the offender knew that the victim was unusually

vulnerable due to age or physical or mental condition, the offense level is increased by two levels.

If the offender was a minimal participant in the offense, the offense level is decreased by four levels.

If the offender obstructed justice, the offense level is increased by two levels. Chapter Three also

includes the multiple countsrules and the adjustment for the offender’s acceptance of responsibility.
17

Criminal History. Chapter Four

contains the rules that assign offenders to

one of the six criminal history categories.

Criminal History Category I is for

offenders with the least serious criminal

record and includes many first-time

offenders. Criminal History Category VI

is for offenders with the most extensive

criminal records. The chapter also

contains a special provision for “Career

Offenders,” USSG §4B1.1, which

implements the directive in the SRA that

requires the Commission to provide a

sentence “at or near the maximum term

authorized” for certain categories of

violent and drug trafficking offenders with

two or more prior offenses. (28 U.S.C. §

994(h). Other provisions apply to “Armed

Career Criminals” USSG §4B1.4, who are

subject to a statutorily enhanced sentence

under 18 U.S.C. § 924(e), and to “Repeat

and Dangerous Sex Offender Against

Minors” USSG §4B1.5.

Determining the final sentence.

Judges must impose a sentence within the

guideline range unless a reason for

departure can be identified and stated on

the record. For offenders convicted of less

serious offenses with relatively little

criminal history, Chapter Five, Part F

provides sentencing options other than

imprisonment. The Sentencing Table is

divided into four zones, A through D.

Offenders in all zones may receive a

sentence of imprisonment, but offenders in

Zone D, which is the great majority of the

Sentencing Table, must receive a term of

imprisonment equal to at least the

minimum of the guideline range. In Zones

A through C judges have the option of

imposing alternative sentences, depending

on the particular zone in which the

defendant falls.

The Sentencing Table

The Sentencing Table is found in

Chapter Five, Part A, of the Guidelines

Manual. The range of recommended sentences

for every offender is given in the cell of the

table at which the offender’s final offense level

and the criminal history category intersect. The

table provides 43 levels of offense seriousness

and six criminal history categories, making a

total of 258 cells. 

 In the following excerpt from the table,

an offender with a criminal history category of

I and a final offense level of 20 would have a

guideline range of 33 to 41 months.

 Sentencing Table (excerpt)

 (in months of imprisonment)

Criminal History Category

Offense

Level

I II III IV V VI

... ... ... ... ... ... ...

19 30-37 33-41 37-46 46-57 57-71 63-78

20 33-41 37-46 41-51 51-63 63-78 70-87

21 37-46 41-51 46-57 57-71 70-87 77-96

... ... ... ... ... ... ...

The lowest level of the table is divided

into four zones, which define the alternatives to

imprisonment that are available to the judge. In

Zone A, involving ranges of 0-6 months, judges

may impose any sentencing option from

probation to imprisonment. In Zones B and C,

certain more restrictive alternatives to

imprisonment are available (see accompanying

text). In Zone D, which includes 206 of the

cells, only sentences of imprisonment are

available. At offense level 43, life imprisonment is required.
18

Zone A (offenders with sentencing ranges of 0-6 months):

! probation;

! probation with confinement conditions (i.e., intermittent confinement,

community confinement, or home detention).

Zone B (offenders with sentencing ranges of 1-12 months):

! probation with a condition that substitutes intermittent confinement,

community confinement, or home detention for at least the minimum of the

guideline range;

! imprisonment of at least one month plus supervised release with a condition

that requires community confinement or home detention to be served for the

remainder of the minimum term specified in the guideline range.

Zone C (offenders with minimum terms of 8-16 months):

! imprisonment of at least one-half of the minimum term plus supervised release

with a condition requiring community confinement or home detention to be

served for the remainder of the minimum term specified in the guideline range.

Chapter Five, Part D, contains provisions governing the use of “supervised release,” which

is a period of supervision following release from prison. Supervised release provides the opportunity

for the managed re-entry of an offender back into the community, as was once provided by parole

release. (Chapter Seven of the Guidelines Manual contains policy statements for the revocation of

probation or supervised release if an offender fails to abide by the conditions of his or her

supervision.) Chapter Five, Part E, establishes guidelines for the imposition of fines, restitution,

assessments, and forfeitures. Other provisions of Chapter Five provide rules for the use of

consecutive or concurrent sentences and other sentencing matters. Parts K and H establish policies

regarding departure from the guidelines for various reasons, as discussed further below. 

D. Components of the Reformed Sentencing System

The SRA contained a long list ofspecific goals for sentencing reform. Inherent in these goals

is the preservation of American values, such as fundamental fairness, due process of law, and the

efficient administration of criminal justice. Congress recognized that to achieve all of this, more than

just the promulgation of sentencing guidelines would be needed. A new and coordinated federal

sentencing system involving all three branches of government was required. The components of this

new system can be divided into two stages: policy development and policy implementation. In this

section, we explore the components of these stages and illustrate how they were intended to work

together to realize Congress’s goals for federal sentencing. 
19

1. Components of Guidelines Development

 Collaboration among policymakers, implementers, and other stakeholders

 Utilization of specialized criminological and sentencing expertise

 Political accountability through Executive participation and Legislative directives

and review

Collaboration among policymakers, implementers, and other stakeholders. The SRA

contemplates the development of sentencing policy and practices through a process of collaboration

between the Commission and all major “stakeholders” in the federal criminal justice system, as well

as input from interested observers and the general public. 

The Commission periodically shall review and revise, in consideration of comments

and data coming to its attention, the guidelines. . . . In fulfilling its duties and in

exercising its powers, the Commission shall consult with authorities on, and

individual and institutional representatives of, various aspects of the Federal criminal

justice system. The United States Probation System, the federal Bureau of Prisons,

the Judicial Conference of the United States, the Criminal Division of the U. S.

Department of Justice, and a representative of the Federal Public Defenders shall

submit to the Commission any observations, comments, or questions pertinent to the

work of the Commission whenever they believe such communication would be useful,

and shall, at least annually, submit to the Commission a written report commenting

on the operation of the Commission’s guidelines suggesting changes in the guidelines

that appear to be warranted, and otherwise assessing the Commission’s work. 

28 U.S.C. § 994(o).

Clearly, the SRA envisions a highly collaborative process of guideline development and revision. 

The Commission heeded these instructions and “decided early in its deliberations that the only

way to develop practical sentencing guidelines was through an open process that involved as many

interested individuals and groups as possible. By tapping the expertise and experience of those who

work in the system, the Commission ensured that its guidelines would be grounded in reason and

practicality” (USSC, 1987). The Commission conducted nationwide hearings and met with

representatives of a wide range of federal agencies, even beyond the list contained in the SRA. 

Through the years, the Commission has been advised by Standing Advisory Groups of

Probation Officers and Attorney Practitioners, as well as by Special Advisory Groups on research,

organizational crimes, environmental crimes, Native Americans, and a variety of other topics. The

Department of Justice, through its ex-officio member of the Commission, and with the help of the

Sentencing Subcommittee of the Attorney General’s United States Attorneys Advisory Committee,

provides important feedback on Commission priorities and proposed amendments. The Commission
20

collaborates with the Judicial Conference of the United States through meetings with the Conference

and its Committee on Criminal Law, which has a Subcommittee on Sentencing. 

The SRA directs the Commission to comply with the “notice and comment” provisions of the

Administrative Procedures Act. 28 U.S.C. § 994(x). In addition, the Commission adopted its own

Rules of Practice and Procedure, which were revised in 2001 (USSC, 2001c). These rules provide

for the annual publication of a Notice of Priorities, the timely publication of Issues for Comment and

Proposed Amendments in the Federal Register and through the Commission’s own website. The rules

also provide for a period of public comment, all of which is reviewed prior to any Commission action.

The Commission conducts almost-monthly public meetings and annual public hearings where it

receives testimony from concerned interest groups and citizens. 

These extensive mechanisms for obtaining input from interested parties are both required by

law and recommended by experience. Research on program change and evaluation has consistently

demonstrated that for sentencing reform to succeed, it must enjoy the confidence of those charged

with implementing the new policy (Von Hirsch, et al., 1987). Open collaboration with key

stakeholders is intended to obtain “buy in” from the essential participants in the federal sentencing

system to help ensure that the guidelines are perceived as legitimate and credible. 

Utilization of specialized criminological and sentencing expertise. The SRA envisions

policymaking informed by a research program that can “develop means of measuring the degree to

which the sentencing, penal, and correctional practices are effective in meeting the purposes of

sentencing.” 28 U.S.C. § 991(b)(2). This ongoing research helps ensure that the guidelines “reflect,

to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal

justice process. . . .” 28 U.S.C. § 991(b)(1)(C). The Commission serves as a “clearinghouse and

information center for the collection, preparation, and dissemination of information on federal

sentencing practices” (28 U.S.C. § 995(a)(12)(A)), and to “collect systematically the data obtained

from studies, research, and the empirical experience of public and private agencies concerning the

sentencing process. . . .” 28 U.S.C. § 995(a)(15). 

The Commission responded to these mandates by developing a large data collection and policy

analysis facility. Documents, including presentence reports, written plea agreements, and Judgment

and Conviction orders, are received from courts throughout the country on virtually every federal

defendant sentenced under the guidelines. Data from these documents are extracted and entered into

the Commission’s Monitoring Database, the most extensive collection of information on federal

crimes, offenders, and sentences collected by any agency. The Commission’s annual Sourcebook of

Federal Sentencing Statistics (USSC, 2002) is based on these data, and contains descriptions of the

types of crimes and sentences imposed for each federal judicial district. The Commission also houses

a library containing an extensive collection of books and articles relevant to federal sentencing and

sentencing guidelines. This material is available to the public through Commission publications and

the release of datasets through the Inter-University Consortium for Political and Social Research

(USSC, 2003). Additional information is gathered through the Commission’s Helpline, training

sessions, and through specialized research projects.
 Mistretta v. United States, 488 U.S. 361 (1989). 16

21

All of these sources of data inform guidelines development and revision through the use of

multi-disciplinary Policy Development Teams, whose work is described in the Commission’s Annual

Reports (USSC, 2002b). These teams engage in a wide variety of research projects relevant to their

assigned topics, including, for example, consultation with psychologists on the recidivism of sex

offenders or with economists on the financial impact of copyright infringement or corporate crime.

In addition, as required by statute 18 U.S.C. § 4047, the Commission uses a statistical Prison Impact

Model to estimate the effects of any proposed change in the guidelines on the types and lengths of

sentences imposed under the revised guidelines, and the fiscal impact of such changes on the Bureau

of Prisons. 

Political accountability through Executive participation and Legislative directives and

review. The final component of policy development provides political accountability for the

Commission’s actions. The Commission’s authority is derived from Congress. For this delegation

of legislative power to be Constitutional, Congress must provide minimum “intelligible principles”

to guide the Commission’s work. Congress did so in the SRA which provides the foundational 16

principles governing the Commission’s guideline development process. In addition, the SRA

provides mechanisms for Congressional direction and oversight.

The most important mechanism for political accountability of the Commission, however, is

the SRA’s provision for a period of review for guideline amendments prior to an amendment’s

effective date. Under the normal amendment procedures outlined in the SRA, the Commission must

submit proposed amendments to Congress no later than the first day of May, together with a statement

of the reasons for the amendment. The Commission must specifyan effective date for the change that

is not earlier than 180 days after submission to Congress and no later than the first day of November.

Congress can modify or disapprove the amendment during this period of review. Two amendments

(regarding guidelines for trafficking in crack cocaine and money laundering) out of 674 were

disapproved in this manner in the first fifteen years of the guidelines.

The advent of the guidelines system has provided new opportunities and mechanisms for

Congress to work with and through the Commission to influence sentencing policy. The advantages

and disadvantages of many of these mechanisms was first discussed in the Commission’s 1991 report

Mandatory Minimum Penalties in the Federal Criminal Justice System. In addition to formal

oversight hearings, informal communication with individual commissioners or with the

Commission’s Office of Legislative Affairs is possible. Congress has also shaped policy by changing

the statutory maximums applicable to a particular crime, at times in conjunction with Sense of

Congress resolutions indicating its intention that the Commission amend the relevant guidelines. 

Most commonly, Congress has influenced and controlled sentencing policy through formal

statutory directives to the Commission, supplementing the directives contained in the SRA itself.

Appendix B describes these directives—which by 2004 numbered over eighty-five separate

enactments, many containing multiple directives—and indicates the dates they were enacted and the

types of crime with which they were concerned. The most common area for directives has been drug
See, e.g., Pub. L. No. 103-322, § 250003, 108 Stat. 1796 (Sept. 13, 1994). This statute directed 17

the Commission to review and, if necessary, amend the guidelines to ensure that sentence enhancements

for frauds committed against the elderly were adequate, and to report to Congress on the reasons for the

Commission’s actions. Id.

See, e.g., Pub. L. No. 106-310, § 3663, 114 Stat. 1101 (Oct. 17, 2000). This Act directed the 18

Commission to provide enhanced punishment for traffickers in MDMA, otherwise known as the club

drug “ecstasy.” Id.

22

trafficking crimes, which have been the subject of 22 directives, followed by economic crimes with

16 directives, and sex offenses with 15 directives. The directives have varied along a continuum from

general to specific, leaving more or less discretion to the Commission to finalize the details of the

policy change. General directives obviously permit a greater role for collaboration and research in

policy development than do specific directives. The most general directives instruct the Commission

to study a problem and report back to Congress with any recommendations or guideline amendments

the Commission views as appropriate. More specific are directives to increase the offense level

17

applicable to a particular crime. At other times, Congress has directed that a certain offense level be

increased by a specific number of levels, or that specific offense adjustments be added to a

guideline. In the PROTECT Act of 2003, Congress for the first time directly amended the 18

Guidelines Manual itself. 

Congress, of course, retains authority to control sentencing policy directly through a

mechanism completely outside the framework established by the SRA—enactment of new statutory

minimum penalty statutes or amendment of existing ones. Some commentators view mandatory

minimum penalties as inconsistent with the guidelines system (Lowenthal, 1993; Wallace, 1994).

Others view mandatory penalties as superfluous given the tough, binding, sentencing guidelines

(Cassell, 2004). The legislative history of the SRA lends some support to the view that the guidelines

system and mandatory minimum penalty provisions are “sentencing policies in conflict” (USSC,

1991b). Yet, Congress enacted mandatory minimum penalties for firearm and drug offenses the very

same year it enacted the SRA, and more mandatory minimum penalties for drug offenses were added

in 1986 while the guidelines were being developed. Additional mandatory minimums for drugs and

other types of offenses have been added or increased several times since guidelines implementation.

The SRA envisions multiple mechanisms for Legislative and Executive influence over

sentencing policy within a framework that also assures input from the front-line actors charged with

implementing the policies in the courts, and in light of the best in criminological research.

Mechanisms for direct control over the guidelines bypass these other components of sentencing policy

development envisioned by the SRA. 

2. Components of Guidelines Implementation

 Uniform charging of readily provable offenses

 Transparent plea agreements consistent with the goals of the SRA 
 William F. Weld, Assistant Attorney General, U. S. Department of Justice [DOJ], “Prosecutors 19

Handbook on Sentencing Guidelines” [hereinafter Redbook], Nov. 1, 1987. Excerpts reprinted in 

6 FED. SENT. REP. 333 [hereinafter FSR] (1994).

 Memorandum from Stephen Trott, Associate Attorney General, DOJ, to All United States 20

Attorneys, regarding “Interim Sentencing Advocacy and Case Settlement Policy Under New Sentencing

Guidelines” [hereinafter Trott Memo], Nov. 3, 1987. Reprinted in 6 FSR 342 (1994).

23

 Reliable fact-finding regarding real offense conduct and criminal history

 Conscientious application of the guidelines to the facts

 Departure when needed to achieve the purposes of sentencing

 Appellate review 

Uniform charging of readily provable offenses. Prosecutors and defense attorneys alike

recognize that the advent of the guidelines has made the sentencing consequences of their

presentencing decisions a central focus of the entire federal criminal justice process. In the words of

one defense attorney: “In federal criminal practice, almost all strategic decisions of the defense

attorney should initially flow from federal sentencing guidelines analysis” (Wisenberg, 2003).

Because the guidelines are designed to bind judges to particular sentencing consequences for

particular proven facts, even law enforcement officers have been trained to anticipate the sentencing

impact of their criminal investigations (Berlin, 1993). Observers have recognized that uniform

charging of offenders’ criminal conduct will be needed if unwarranted sentencing disparity is to be

eliminated (Schulhofer & Nagel, 1989; Edmunds, 1996).

From the beginning of guidelines implementation, Department policies have recognized that

prosecutors’ charging and plea agreement practices could have a major impact on the success of

sentencing reform.

19

Under the new system, the nature of the charge to which a defendant pleads is

particularly important because it will more precisely than ever determine the

defendant’s actual sentence. . . . [I]f prosecutors consult the guidelines at the charging

stage in an effort to achieve the most appropriate sentence for the conduct committed,

the purpose of the SRA of eliminating unwarranted disparity in sentencing will be

served since similar conduct should result in the bringing of similar charges, which

will form the bases for similar sentencing. 

20

The Department clearly recognized that charging decisions would have a significant impact on

sentencing, and on the success of sentencing reform. 
 Memorandum from Richard Thornburgh, Attorney General, DOJ, to All United States 21

Attorneys, regarding “Plea Policy for Federal Prosecutors, Plea Bargaining Under the Sentencing Reform

Act” [hereinafter Thornburgh Blue Sheet], March 13, 1989. Reprinted in 6 FSR 347 (1994).

 DOJ, “Principles of Federal Prosecution,” 9-27.310, July 1980. Excerpts reprinted in 6 FSR 22

317-329 (1994).

 Memorandum from Janet Reno, Attorney General, DOJ, to All Holders of U.S. Attorneys’ 23

Manual, Title 9, regarding “Principles of Federal Prosecution” [hereinafter Reno Bluesheet], Oct. 12,

1993. Reprinted in 6 FSR 350 (1994).

 Memorandum from John Ashcroft, Attorney General, DOJ, to All Federal Prosecutors, 24

regarding “Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and

Sentencing” [hereinafter Ashcroft Charging Memo], Sept. 22, 2003.

24

To advance the goal of similar charging of similar conduct, the Department directed

prosecutors to “initially charge the most serious, readily provable offense or offenses consistent with

the defendant’s conduct.” Limited exceptions to this rule were permitted, for example, if there was 21

a need to protect the identity of a witness. But the long-standing principle that prosecutors should

select “the most serious offense that is consistent with the nature of the defendant’s criminal conduct,

that is likely to result in a sustainable conviction,” was recognized in Department policies as

22

important to the success of sentencing reform. These national policies set by the Department were

met with skepticism by some district offices, who argued that varying local conditions required that

they retain discretion and flexibility (Braniff, 1993). Clarification of the policy in 1993 was perceived

by some as granting local prosecutors more flexibility, in that it authorized prosecutors to consider

the proportionality of sentences resulting from their charging decisions (Beale, 1994). 

23

The PROTECT Act of 2003 again highlighted the importance of sentencing consistency and

the need for Department guidance to prosecutors in the field. Subsequent to its passage, the Attorney

General issued further guidance to federal prosecutors concerning Department charging and plea

agreement policies. 

The fairness Congress sought to achieve by the Sentencing Reform Act and the

PROTECT Act can be attained only if there are fair and reasonably consistent policies

with respect to the Department’s decisions concerning what charges to bring and how

cases should be disposed. Just as the sentence a defendant receives should not depend

upon which particular judge presides over the case, so too the charges a defendant

faces should not depend upon the particular prosecutor assigned to handle the case.24

This latest guidance reiterates that prosecutors “must charge and pursue the most serious, readily

provable offense or offenses that are supported by the facts of the case” except in limited, enumerated,

circumstances. 

A first look at real offense sentencing. Because sentencing uniformity is crucially dependent

on charging uniformity, the original Commission was concerned that continuing unevenness in
 USSG, Ch. 1, Pt. A, sec. 4(a). 25

25

charging could undermine sentencing reform despite the Department’s efforts to control it. The

Commission sought to build mechanisms into the guidelines themselves that would help to ameliorate

some of the effects of uneven charging. These mechanisms include: 1) the multiple count rule, found

in Part D, Chapter Three of the Guidelines Manual, 2) cross-references among guidelines, and 3) the

relevant conduct rule found at USSG §1B1.3. Together, these mechanisms make the federal

guidelines a significantly real offense, as opposed to charge offense, sentencing system. (The relevant

conduct rule and real offense sentencing is discussed further in a text box later in this section.)

The original Commission explained the need to consider aspects of the real offense committed

by defendants instead of only the charges of conviction. First, the statute-defined elements of many

federal crimes fail to provide sufficient detail about the manner in which the crime was committed

to permit individualized sentences that reflect the varying seriousness of different violations. “[T]he

hundreds of overlapping and duplicative statutory provisions that make up the federal criminal law

forced the Commission to write guidelines that are descriptive of generic conduct rather than

guidelines that track purely statutory language.” The Commission recognized that in the 25

preguidelines system judges and the Parole Commission took into account many details of offenders’

actual conduct. “A pure charge system would overlook some of the harms that did not constitute

statutory elements of the offenses of which the defendant was convicted.” Id. 

Furthermore, the Commission remained concerned that the charges to which defendants were

subject would continue to depend to some extent on which prosecutors were assigned to each case

or in which district the offense was prosecuted, leading to unwarranted sentencing disparity. “The

Commission recognized that a charge offense system has drawbacks. . . . One of the most important

is the potential it affords prosecutors to influence sentences by increasing or decreasing the number

of counts in the indictment.” The Commission created rules for grouping multiple counts to help

control excessive severity that could arise from charging what was essentially a single criminal act

as multiple counts. And the Commission created the relevant conduct rule and cross-references

among guidelines to prevent excessive leniency that could arise from prosecutors failing to charge

all of the offender’s conduct, or failing to charge the most serious of the conduct. 

The Commission’s approach to multiple count convictions was discussed in the original

introduction to the Guidelines Manual in Chapter One, Part A4(e), which is reproduced for historical

reference in the current edition of the manual. (See also Breyer, 1988.) The rules are designed to

reduce some of the sentencing disparity that can result from charging variations. For example,

charging both a criminal act and conspiracy to commit that act results in the same sentence as

charging only the act or the conspiracy. Similarly, a kidnapping involving an assault is sentenced the

same if charged and convicted only as a kidnapping or as one count of kidnapping and one count of

assault. For offenses involving fungible quantities, such as drugs or money, sentences are based on

the total amount involved in the ongoing offense, not on how many counts involving various

transactions or acts are charged or convicted. Indeed, for these offenses sentences are based on all

relevant conduct, whether or not all of the conduct is charged or conviction is obtained. 
26

Real Offense Sentencing and the 

Relevant Conduct Rule, USSG §1B1.3

The relevant conduct rule is the guideline that defines the scope of a defendant’s

criminal behavior that is used by the court in applying the Chapters Two and Three

guidelines. The rule allows the court to consider facts beyond those specified in the

indictment or in the elements of the offense of conviction. Relevant conduct includes

details about the manner in which the offense was committed. It can also include other

criminal conduct that was not charged, that was described in counts that were dismissed

prior to sentencing, conduct of accomplices, and even conduct for which the defendant

was acquitted at trial.

In determining an offense level, judges generally use Appendix A of the

Guidelines Manual to identify the guideline applicable to the offense of conviction

(unless a plea agreement stipulates a more serious offense—see section 1B1.2). The

court then uses all relevant conduct to determine the base offense level, the specific

offense adjustments, and whether any cross-references to other guidelines should be

applied. Relevant conduct includes acts the defendant personally committed, aided,

abetted, counseled, commanded, induced, procured, or willfully caused if the acts

occurred during the offense of conviction, in preparation for that offense, or in avoiding

detection or responsibility for the offense. It also includes acts within the same time

context that were committed by the defendant’s accomplices, if those acts took place

within the scope of a joint undertaking with the defendant and were reasonably

foreseeable to the defendant. Any harms resulting from the relevant acts of the

defendant and accomplices are also relevant.

 In certain offenses, primarily those where the guidelines determine the offense

level based on fungible items, such as quantities of drugs or amounts of money involved

in the offense, the acts of the defendant and accomplices as analyzed above are

expanded to include those acts and resulting harms within the context of the “same

course of conduct or common scheme or plan as the offense of conviction.” This

means, for example, that a defendant convicted of selling drugs to an undercover officer

on one occasion is sentenced under USSG §1D1.1 for the amount of drugs involved in

all the drug trafficking known to the court that was part of the same course of conduct

or common scheme or plan as that one sale. Because the standard of proof used in the

determination of relevant conduct, as with any sentencing factor, has been the

preponderance of evidence,“a jury’s verdict of acquittal does not prevent the sentencing

court from considering conduct underlying the acquitted charge, so long as that conduct

has been proved by a preponderance of the evidence.” United States v. Watts, 117 S. Ct.

633, 638 (1997).
See, e.g., USSG, App. C, Amends. 313, 323 (Nov. 1, 1990); Amend. 444 (Nov. 1, 1992). 26

27

Cross-references among guidelines, which are applied based on all relevant conduct, also

serve to reduce the impact of charging variations. An offender convicted of criminal sexual abuse

of a minor under the age of sixteen (statutory rape), but whose conduct actually involved the more

serious offense of forcible rape, will be sentenced under the more severe guideline for the more

serious offense pursuant to the cross-reference from the statutory rape guideline, section 2A3.2 to the

sexual abuse guideline, section 2A3.1. The Guidelines Manual contains many cross-references, many

of which were added after promulgation of the initial guidelines in light of evidence that

undercharging of offenses was resulting in significant sentencing disparity and disproportionately

lenient sentences.26

 

These mechanisms were designed to reduce sentencing disparity resulting from uneven

charging decisions, but they were never intended to eliminate it altogether. The guidelines retain

some characteristics of a charge offense system, particularly for offenses that do not involve fungible

goods like drugs or money. For example, the guideline rules take into account only those robberies

for which a conviction is obtained, and not other robberies committed by the defendant that may come

to the attention of the court at sentencing. Policy statement USSG §5K2.21 permits judges to take

uncharged or dismissed conduct, such as additional bank robberies, into account through upward

departure, but the relevant conduct rule itself does not require consideration of such conduct as it does

uncharged conduct involving fungible harms. In addition, statutory minimum penalties and

sentencing enhancements continue to give prosecutors considerable control over final sentences in

many cases, because prosecutors determine whether the statutory minimum penalties are invoked.

Chapter Three presents data on the effects of these charging decisions on unwarranted sentencing

disparity. 

Transparent plea agreements consistent with the goals of the SRA. The need for efficient

administration of justice has led to a recognition of plea agreements as a common method for securing

convictions in American courts. In the forty years prior to the guidelines, between 85 and 90 percent

of all convictions in the federal courts annually involved pleas of guilty or nolo contendere (BJS,

Sourcebook, 1987; AO, Annual Report, 1987). If the guidelines system is to be workable, it must

accommodate plea bargaining and provide incentives for defendants to plead guilty. In the

preguidelines era, these incentives were provided when prosecutors agreed not to bring charges, or

to dismiss charges, or to make various sentencing recommendations to the judge. But, as a general

rule, these agreements only loosely bound the court (FJC, 1979). 

In the guidelines era, both the goals and the dynamics of the system have changed. Congress

has now defined reduction of unwarranted sentencing disparity as an important goal of the system.

The guidelines bind judges more tightly to the sentencing consequences of the charges of conviction

and the guideline-relevant facts proven at sentencing. Given all this, the first component of guidelines

implementation—uniform charging—cannot ensure uniform sentencing if plea bargaining results in

the dismissal of provable charges that would affect the applicable guideline range, or stipulations to

misleading facts, or other agreements that result in sentences different from those required by

complete and proper application of the guidelines to offenders’ criminal conduct.
SENATE REPORT, supra note 1, at 63; see sec. A.2 (discussing move toward regulation of plea 27

bargaining during the legislative development of the SRA).

 USSG, App. C, Amend. 467 (Nov. 1, 1992).

28

See USSG §6B1.2. 29

 USSG, App. C, Amend. 651 (final provision) (Oct. 27, 2003).

30

 USSG §6B1.4. 31

28

Congress directed the Commission to develop policy statements governing judges’ acceptance

and rejection of plea agreements in the hope that “judicial review of plea bargaining under such policy

statements should alleviate any potential problem in the area.” These policy statements are found 27

in Chapter Six, part B of the Guidelines Manual. The Commission believed that if judicial power to

reject plea agreements “were properly exercised, undue shifting of authority [from judges to

prosecutors] will not occur.” (USSC, 1987, p. 49). Some commentators believed the Commission’s

initial policy statements sent mixed signals regarding how strictly judges should monitor agreements.

Accordingly, the Guidelines Manual was amended in 1992 to make clear “the Commission’s policy

that plea agreements should not undermine the sentencing guidelines.”28

The policy statements address the various types of plea agreements that are contemplated by

Federal Rules of Criminal Procedure, Rule 11(e), which include agreements to dismiss or not bring

charges, and various types of binding and non-binding sentencing recommendations. (This rule has

itself been recently amended to reflect new types of agreements made possible by implementation of

the guidelines, such as agreements that a particular provision of the guidelines does or does not apply.

It is now denoted as Rule 11(c).) Despite variationsin the types of agreements, the policy statements

all adopt a simple principle: plea agreements should be accepted by the judge only if the resulting

sentence is within the applicable guideline range or departs from the range for a reason that can be

justified according to the normal departure standard at 18 U.S.C. § 3553(b). The fact of an

29

agreement itself should not be used to impose a sentence outside the range otherwise required by the

guidelines. This principle has recently been reinforced by an amendment to the policy statements

reiterating that “the court may not depart below the applicable guideline range merely because of the

defendant’s decision to plead guilty to the offense or to enter a plea agreement with respect to the

offense.” Other policy statements in Chapter Six require that plea agreements be disclosed to the 30

court (USSG §1B1.1; see also F. R. Crim. P. 11(c)(2)), and that any factual stipulations

accompanying the agreement shall set forth the “circumstances of the actual offense conduct and

offender characteristics” and “shall not contain misleading facts.”31

To implement judicial review of plea agreements, some mechanism for judges to compare the

agreement with the offender’s actual conduct was needed. This was provided through changes to the

presentence investigation and report, which are discussed in the following section Federal Rules of

Criminal Procedure, Rule 11(c)(3) allows judges to defer acceptance or rejection of a plea agreement

“until the court has reviewed the presentence report.” USSG §6B1.1, p.s., goes further, stating that

the court “shall defer” its decision “until there has been an opportunity to consider the report.” 
 Memorandum from John Ashcroft, Attorney General, DOJ, to All Federal Prosecutors, 32

regarding “Department Policies and Procedures Concerning Sentencing Recommendations and

Sentencing Appeals,” July 28, 2003.

 Ashcroft Charging Memo, supra note 24, September 22, 2003, at 5. 33

 USSC, SUPPLEMENTARY REPORT, at 49 (1987).

34

29

Even with the help of the probation officer’s investigation and report, it was recognized that

the judiciary and the Commission would have limited power and resources with which to police plea

bargaining. “It will be up to the government to insure that inconsistencies in the treatment of plea

agreements do not frustrate the purpose of the Guidelines” (Trott Memo, Nov. 3,1987). To that end,

the Department adopted strict policies regarding plea agreements. “The overriding principle

governing the conduct of plea negotiations is that plea agreements should not be used to circumvent

the guidelines” (Redbook, Nov. 1, 1987). The Department recognized that, as a practical matter,

judges would be tempted to accept plea agreements outside the guideline range, since appeals of

bargained-for sentences would be unlikely. But the Department instructed prosecutors to ensure that

plea bargains result in imposition of a sentence within the guideline range unless a departure could

be justified. The policies made clear that the existence of a plea agreement alone was not enough to

justify a departure. Further, the Department reinforced the Commission’s policy statement on factual

stipulations: “The Department’s policy is only to stipulate to facts that accurately represent the

defendant’s conduct” (Thornburgh Bluesheet, 1989). 

In 2003, following passage of the PROTECT Act, the Department again reiterated the

importance of consistency in the manner charges are disposed of and the importance of adherence to

the sentencing guidelines when entering into plea agreements. To achieve “honesty in sentencing”

[a]ny sentencing recommendation made by the United States in a particular case must

honestly reflect the totality and seriousness of the defendant’s conduct and must be

fully consistent with the Guidelines and applicable statutes and with the readily

provable facts about the defendant’s history and conduct.32

“This policy applies fully to sentencing recommendations that are contained in plea agreements.”33

Thus, these new policies reinforce the Department’s commitment to the goals of sentencing reform.

The Commission recognized that defendants would need some incentive to plead guilty if trial

rates were to be kept within manageable limits. Research on sentencing practices in the preguidelines

era had demonstrated that offenders typically received a sentence discount for sparing the government

the time and expense of a trial. The original Commission sought to maintain this benefit so that

defendants retained sufficient incentive to plead guilty and “the number of trials facing an already

overburdened federal court system” would not be increased. At the same time, the Commission 34

sought to regularize the guilty plea benefit in orderto reduce disparity. “The Commission considered,

but rejected, a proposal to give the sentencing judge considerable latitude to give a sizeable sentence

reduction because of the entry of a guilty plea. Doing so would have risked the introduction of
Id.

35

 USSG §3E1.1, comment. n.1(a).

36

 USSG, App. C, Amends. 459 (Nov. 1, 1992) & 649 (Sept. 30, 2003). The latter amendment 37

was pursuant to a directive to the Commission contained in the PROTECT Act. 

30

considerable unwarranted disparity and unpredictability into the system.” The Commission decided 35

to balance competing concerns regarding plea bargaining by relying on judges to police bargains that

could undermine the guidelines and by allowing various types of prosecutors’ recommendations—for

example, that the judge sentence at the bottom of the guideline range or depart for a justifiable reason.

The Commission provided an explicit incentive to plead guilty in USSG §3E1.1, the

“Acceptance of Responsibility” guideline. This guideline was designed both as a reward for offenders

who plead guilty and also as a recognition of the reduced culpability of offenders who acknowledge

guilt and take steps to mitigate the harm caused by their offense. The guideline provides a reduction

in the offender’s offense level “[i]f the defendant clearly demonstrates “acceptance of responsibility

for his offense.” The first factor judges are directed to consider when deciding whether to grant this

reduction is the defendant’s “[t]ruthfully admitting the conduct comprising the offense(s) of

conviction.” Data show that 94 percent of offenders who plead guilty receive the acceptance of 36

responsibility reduction. Later amendments to this guideline increased its utility as an incentive for

defendants to provide helpful information to prosecutors and to enter pleas in a timely manner so that

the government may avoid wasting resources in trial preparation. 

37

It is clear from the data that plea bargaining has continued, and even expanded, in the

guidelines era. Guilty plea rates steadily increased from 87 percent in the years preceding the

guidelines to 96.6 percent in 2001. However, the system of regularized incentives for guilty pleas that

was put in place by the original Commission has never operated in isolation from statutory minimum

penalties. Department policies allow prosecutors to invoke statutory minimum penalties and statutory

enhancements as further incentives for guilty pleas, even barring their declination or dismissal except

as part of a plea agreement (DOJ, 2003). 

Reliable fact-finding regarding real offense conduct and criminal history. It was apparent

from the beginning of the guidelines era that the reformed sentencing system would require new

procedures to establish facts relevant to application of the guidelines. Rule 32 of the Federal Rules

of Criminal Procedure, which concerns sentencing procedures, was amended by the SRA itself.

Additional procedures needed to make guideline sentencing fair and efficient were the subject of

much thought by the Sentencing Commission and by various committees of the Judicial Conference

of the United States. The procedures ultimately put in place emphasized the role of the probation

officer in investigating the relevant facts, recommending the guidelines applicable to the case, and

identifying any remaining disputes for resolution by the judge at a sentencing hearing. Each district

also retained discretion to fashion local rules and informal procedures that were tuned to local

conditions. 
31

Amended Rule 32 requires a presentence report in virtually all guidelines cases and establishes

a timeline for its completion, its disclosure to the parties, and for any party to the file objections to

its contents. The rule also specifies matters to be included in the report, including the probation

officer’s determination of how the guidelines apply in the case. The Judicial Conference provides

more detailed instructions and training to probation officers about how to conduct the presentence

investigation and write the report. These policies are contained in Publication 107 (Administrative

Office of the U.S. Courts, last revision 2001), which was extensively revised at the time of guidelines

implementation. Procedures for the presentence report have recently again become a topic of concern

to the judiciary as growing caseloads and budgetary constraints make detailed presentence

investigations in every case increasingly difficult. 

At the dawn of the guidelines era, the presentence report was redesigned to make it effective

in assisting judges in application of the guidelines, and to support judicial review of plea agreements.

Probation officers were instructed to provide a “concise but complete description” of all information

relevant to application of the guidelines, including the “offense(s) of conviction and all relevant

conduct” and all verifiable criminal history. An “Impact of the Plea Agreement” section was

developed to assist the court in evaluating the effects of “counts to be dismissed, stipulations, or any

other factors in the plea agreement that may affect the guideline range or the sentence to be imposed”

(AO, Publication 107, II-79). Inclusion of an “Impact of the Plea Agreement” section in the

presentence report demonstrates that courts, like Congress, anticipated plea agreements that would

sometimes understate the offender’s real offense conduct. As described above, the relevant conduct

rule instructs courts to look beyond the counts of conviction to the offender’s actual criminal conduct,

including conduct that was never charged or was specified in counts that were subsequently

dismissed. The aim was to ensure that a judge’s fact finding—and not just the prosecutor’s charging

and bargaining decisions—would determine the sentence (Breyer, 1988; Wilkins & Steer, 1990).

While offering fewer procedural protections than fact finding at trial, fact finding at sentencing

under the guidelines is subject to more formal procedures than was fact finding in the preguidelines

era. “The court’s resolution of disputed sentencing factors usually has a measurable effect on the

applicable punishment. More formality is therefore unavoidable if the sentencing process is to be

accurate and fair.” USSG §6A1.3 p.s., comment. In addition to disclosure of the presentence report

and taking of objections, amended Rule 32(I) gives counsel an opportunity to comment on the

probation officer’s findings. The court may permit the parties to introduce testimony and other

evidence at an evidentiary hearing. The court must rule on any disputed fact that affects the sentence

and append a record of its rulings to the presentence report, which is then made available to the

Bureau of Prisons and the Sentencing Commission. However, Commission policy statements permit

courts to “consider relevant information without regard to its admissibilityunder the rules of evidence

applicable at trial, provided that the information has sufficient indicia of reliability to support its

probable accuracy.” USSG §6A1.3(a) p.s. Courts have held that, in most circumstances, sentencing

facts must be proven to the judge only by a preponderance of the evidence (FJC, 2002, p. 484).

Conscientious application of the guidelines to the facts. The core of the new system is the

judge’s imposition of a sentence “of a kind, and within the range” established by the guidelines for

the circumstances of the offense and the offender’s criminal history. 18 U.S.C. § 3553(b). In most

situations, guideline application is straightforward, but it could break down in several ways.
 USSG, Ch. 1, Pt. A.4(b). (This provision was transferred to an Editorial Note at the end of sec. 38

1A1.1 as part of the Commission’s implementation of the PROTECT Act of 2003.)

 PROTECT Act, Pub. L. No. 108-21 § 401(m)(2)(a), 117 Stat. 650 (April 30, 2003).

39

32

Probation officers and judges could make mistakes due to confusing or complex guidelines (Ruback

& Wroblewski, 2002). The guidelines could be circumvented, explicitly or covertly, through

manipulation of the facts found to be present in the case, through strained guidelines interpretations,

or through the granting of departures for unjustifiable reasons. Pressure to find a way around the

guidelines can be acute if a judge finds the guidelines-required sentence unjust (Weinstein, 1992, p.

365; Stith & Cabranes, 1998, p. 90) and the parties agree that a sentence outside the guideline range

is acceptable. Enforcement of 18 U.S.C. § 3553(b) relies on each judge’s duty to follow the law in

good faith, and on the provisions for appellate review created by the SRA, discussed below. 

To improve comprehension of the guidelines and help avoid mistakes, the Commission, on

its own and in conjunction with the Federal Judicial Center, the Administrative Office of the U. S.

Courts, the Federal Bar Association, and other groups, participates in extensive training of probation

officers, judges, defense attorneys, and prosecutors. The Commission also maintains a “HelpLine”

available to court personnel who have specific questions about guidelines applications. To reduce

pressure to circumvent the guidelines, the Commission communicates with judges through

conferences, seminars, and newsletters, and seeks to improve “buy in” among those charged with

implementing the guidelines through collaborative guidelines development. 

Departure when needed to achieve the purposes of sentencing. Congress recognized that

the Commission could not anticipate and describe in general guidelines every possible circumstance

relevant to sentencing in every case. It included a provision in the SRA permitting departure from

the guideline range if “the court finds that there exists an aggravating or mitigating circumstance of

a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in

formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C.

§ 3553(b). In implementing this provision the original Commission instructed judges to 

treat each guideline as carving out a “heartland,” a set of typical cases embodying the

conduct that each guideline describes. When a court finds an atypical case, one to

which a particular guideline linguistically applies but where conduct significantly

differs from the norm, the court may consider whether a departure is warranted.38

 

The Commission also encourages, discourages, or flatly prohibits departures in various

circumstances in commentary throughout the Guidelines Manual and in policy statements in Chapter

Five, Parts H and K. The Supreme Court reaffirmed the importance of the Commission’s role in

regulating departures in United States v. Koon, 518 U.S. 81 (1996). In the PROTECT Act of 2003,

Congress directed the Commission to review these provisions and amend them “to ensure that the

incidence of downward departures are substantially reduced.” The results of the Commission’s 39
 USSG, App. C, Amend. 651 (Oct. 27, 2003). 40

 USSG, §1A1.1, Ed. Note, Ch. 1, Pt. A.4(b).

41

 Pub. L. No. 99-570, §§ 1007, 1008, 100 Stat. 3207 (Oct. 27, 1986).

42

 Memorandum from George J. Terwilliger, III, Acting Deputy Attorney General, DOJ, to 43

Holders of United States Attorneys’ Manual Title 9, regarding “Indictment and Plea Procedure Under

Guideline Sentencing” [hereinafter Terwilliger Bluesheet], Feb. 7, 1992. Reprinted in 6 FSR 350

(1994).

33

review were published in Downward Departures from the Federal Sentencing Guidelines (USSC,

2003) and the amendments to the Guidelines Manual became effective on October 27, 2003.40

Departures serve several functions in the sentencing system established by the SRA. They help

maintain “sufficient flexibility to permit individualized sentences when warranted by mitigating or

aggravating factors not taken into account in the establishment of general sentencing practices . . . .”

28 U.S.C. § 991(b)(1)(B). They allow fine-tuning of sentences when literal application of a guideline

would fail to achieve the guideline’s intended purpose (Hofer & Allenbaugh, 2003). And they

provide a feedback mechanism to the Commission. “By monitoring when courts depart from the

guidelines and analyzing their stated reasons for doing so, the Commission, over time, will be able

to refine the guidelines to specify more precisely when departures should and should not be

permitted.”41

Sections 5K1.1 and 5K3.1 departures. The guidelines also provide for additional types of

departure to reward defendants who assist the government in various ways. The first of these—often

called 5K1.1 departures, after the policy statement that governs them—was not part of the SRA itself

but was added in response to the Anti-Drug Abuse Act of 1986 (ADAA), which also established 42

mandatory minimum penalties for a wide variety of drug trafficking crimes. The ADAA permits

waiver of statutory minimum penalties for persons who assist the government in the “investigation

or prosecution of another person who has committed an offense” 18 U.S.C. § 3553(e). It also directs

the Commission to “assure that the guidelines reflect the general appropriateness of imposing a lower

sentence than would otherwise be imposed . . . to take into account a defendant’s substantial

assistance.” 28 U.S.C. § 994(n). The Commission implemented this provision by issuing a policy

statement encouraging judges to depart in such cases “upon motion of the government.” USSG

§5K1.1 p.s.

The Department ofJustice recognized that “[t]his departure provides federal prosecutors with

an enormous range of options in the course of plea negotiations” (Thornburgh Bluesheet, 1989).

Later concern that charging and plea bargaining might be undermining sentencing reform led to

changes in Department procedures involving section 5K1.1 motions. Authority to approve the filing 43

of such motions was limited to top management in each U. S. Attorney’s office, and documentation

of the facts justifying a motion to depart from the guidelines on these grounds was required.
 USSG, App. C, Amend. 651 (Oct. 27, 2003). 44

 PROTECT Act, Pub. L. No. 108-21 § 401(m)(2)(B), 117 Stat. 650 (April 30, 2003).

45

 Memorandum from Attorney General John Ashcroft, DOJ, to All United States Attorneys, 46

regarding “Department Principles for Implementing an Expedited Disposition or ‘Fast-Track’

Prosecution Program in a District” [hereinafter Ashcroft Fast-Track Memo], Sept. 22, 2003, at 5.

 SENATE REPORT, supra note 1, at 86. 47

 18 U.S.C. § 3742 48

34

In the PROTECT Act, Congress directed the Commission to promulgate a policy statement

authorizing a new ground for downward departure. The Commission’s response was to add USSG,

§5K3.1 p.s., which became effective October 27, 2003. If the Government files a motion, an 44

offender may receive a departure of no more than four offense levels for participating in an early

disposition program authorized by the Attorney General and the United States Attorney. This 45

provision was created to help regularize so-called “fast-track” departures that had developed in a

number of districts in recent years to accommodate overwhelming caseloads that outstrip both

prosecutorial and judicial resources. The new departure provision rewards offenders for pleading

guilty early in the process and waiving certain procedural rights, such as the right of appeal, most

rights to challenge a conviction under 28 U.S.C. § 2255 (the federal habeas corpus provision), and

any of the motions described in the Federal Rule of Criminal Procedure 12(b)(3), such as motions for

discovery or to suppress evidence. 

The Department issued a memorandum outlining its criteria for authorization of early

disposition programs on September 22, 2003. The memorandum stressed that the programs were

“properly reserved for exceptional circumstances . . . [and] are not to be used simply to avoid the

ordinary application of the guidelines to a particular class of cases.” In addition to downward 46

departures, the Department’s policies contemplate that some districts may reward offenders for

participation in early disposition programs by agreeing not to charge or pursue all readily provable

criminal conduct. Results of the Commission’s review of early disposition programs, and

implications of the new departure provision, were discussed further in the Commission’s report

Downward Departures from the Federal Sentencing Guidelines (2003).

Appellate review. Appellate review of sentences, which the SRA codified for the first time

at 18 U.S.C. § 3742, was intended by Congress to “reduce materially any remaining unwarranted

disparities by granting the right to appeal a sentence outside the guidelines and by providing a

mechanism to assure that sentences inside the guidelines are based on correct application.” Any 47

party may appeal a sentence that they allege “was imposed in violation of law” or “as a result of an

incorrect application of the sentencing guidelines.” The government may appeal any sentence

48

resulting from a departure below the guideline range, and the defense may appeal an upward

departure. The SRA directed appellate courts to accept the district court’s findings of fact unless they

were clearly erroneous, and to give due deference to the district court’s application of the guidelines
 518 U.S. 81 (1996).

49

The Child Abduction Prevention Act and The Child Obscenity & Pornography Prevention Act 50

of 2003; Hearing on H. R. 1004 and H.R. 1161 Before the House Subcomm. on Crime, Terrorism, and

Homeland Security, of the House Comm. on the Judiciary, 108th Cong.,1st Sess. 38 (March 11, 2003)

(statement of Daniel P. Collins, Associate Deputy Attorney General, DOJ).

35

to the facts. In the case of an appeal of a departure, the appellate court determines if the sentencing

judge’s stated reasons for departure were reasonable, and met the standards set out in 18 U.S.C. §

3553, described above. The U.S. Supreme Court further clarified the standards for judicial review

of departures in Koon v. United States.

49

In early 2003, the Department of Justice cited with alarm the increasing rate of downward

departures. The Department’s representatives testified before Congress that “[m]uch of the damage

is traceable to the Supreme Court’s decision in Koon v. United States.” That decision had 50

established “abuse of discretion” as the proper standard for review of departures and had also

cautioned appellate courts against categorically prohibiting departures on grounds not specifically

prohibited by the Sentencing Commission. In the view of the Department, these holdings had made

it difficult to appeal unjustified downward departures, thereby contributing to their increasing rate.

The Department called for Koon to be effectively overruled by statute. It encouraged legislation that

would both 1) establish de novo review as the proper standard for review of departures, and 2)

prohibit departures on any grounds not affirmatively encouraged by the Commission. As ultimately

enacted, the PROTECT Act prohibited departures on grounds not affirmatively encouraged by the

Commission only for offenders convicted of sex crimes against children. However, the Act did

change the standard of review for all departures to de novo. 

 

Some early advocates of sentencing reform (Morris, 1977), and some recent commentators

(Berman, 1999), have envisioned appellate review as making substantial contributions to the

development of a principled “common law of sentencing.” Others have noted the inherent

weaknesses in such a vision, however, and have argued that the “enforcement function” of appellate

review—ensuring that sentencing courts faithfully implement the guidelines system—has emerged

as more important than any “lawmaking function” (Reitz, 1997). 

In any event, the legislative history of the SRA makes clear that Congress’s primary purpose

in establishing appellate review was to ensure that unwarranted disparity did not re-emerge through

misapplication of the guidelines or through unjustified departure. Appellate review has also helped

alert the Commission to important ambiguities in the guidelines and other problems of guidelines

application. It has identified areas in need of guideline amendments to resolve circuit conflicts and

help control sentencing disparity (Wilkins & Steer, 1993). 

The appellate courts cannot perform their assigned functions without the cooperation of other

participants in the system. Appellate review depends on clear fact findings and statements of reasons

by the sentencing courts to provide a sufficient record for review. And, of course, correction of
36

guidelines errors or improper departures depends on appeal of the sentence by at least one of the

parties to the case. 

E. From Theory to Practice

This detailed description of the components of the reformed sentencing system shows how

much was changed by enactment of the SRA. The Sentencing Commission, the Department of

Justice, and the Judicial Conference of the United States all responded by establishing new policies

and procedures to support the SRA’s objectives. This systemic perspective shows how

implementation of each component is needed for Congress’s goals for sentencing reform to be fully

realized. Changes to the system and departure from the original vision of the SRA—including

enactment of statutory mandatory minimum penalties, the PROTECT Act, and application of Blakely

v. Washington to the federal guidelines—could change the dynamics of federal sentencing and upset

the interaction of components needed to achieve Congress’s goals for sentencing reform. A quick

contrast between the system as envisioned and the ways it might function in practice reveals what is

at stake.

Guidelines development. If the Commission develops policy informed by its research and

by “advancement in knowledge of human behavior” (28 U.S.C. §991(b)(c)), we would expect the

guidelines to achieve the purposes of sentencing as effectively as current criminological knowledge

will allow. If collaborative guidelines development obtains “buy in” from the courts and

practitioners, then those charged with implementing the system would have a stake in its success.

Practices that could undermine or circumvent the guidelines would be avoided, and implementers

would undertake their new duties and responsibilities conscientiously. If collaborative guidelines

development and political accountability were harmonized, then direct congressional intervention in

sentencing outside the guidelines framework, through mandatory minimum legislation or other

specific directives, could be avoided. 

If, however, there were a breakdown in any of these components, we could expect negative

consequences for the system. If research weren’t utilized, correctional resources could be squandered

on ineffective sentences. If guidelines were imposed from above rather than developed through

collaboration, implementers might shirk their new responsibilities, leading to circumvention and

disparity. If the Commission failed to be accountable to Congress, legislative micro-management

through specific directives or statutory minimum penalties would be more likely. 

Guidelines implementation. If prosecutors charge uniformly and obtain plea agreements that

fully account for each offender’s criminal conduct, then sentencing uniformity will be advanced. But

if prosecutors charge statutory penalties that trump the guideline range and don’t permit consideration

of the guidelines’ mitigating adjustments, then different offenders will be treated similarly. On the

other hand, if prosecutors don’t pursue all relevant conduct, then independent probation officer

investigations into offense conduct is needed to inform judicial review of plea agreements. But if

judges accept plea agreements that undermine the guidelines, or depart for unwarranted reasons, or

misapply the guideline provisions, then unfair and disparate sentences can result. If appellate courts
 USSG §1A1.1, Ed. Note, Ch. 1, Pt. A.4(c).

51

Id. at Pt. A.4(b).

52

37

correct mistaken guideline applications or unjustified departures, uniformity would be restored. But

if neither party appeals the sentence, then the corrective and enforcement functions of appellate

review cannot operate. 

The role of empirical research. There are many ways the system could fail to reach its

ambitious goals. Reforms this comprehensive, requiring coordinated actions among all three branches

of government, present a formidable challenge. It may be unreasonable to expect this new system to

be fully implemented at a stroke. The original commissioners recognized that sentencing reform

would have to be incremental. They wrote that “[t]he Commission decided not to make major

changes in plea agreement practices in the initial guidelines, but rather to provide guidance by issuing

general policy statements. . . . The Commission will collect data on . . . whether plea agreement

practices are undermining the intent of the [SRA]” in order to seek corrective actions as needed.51

The Commission also contemplated “monitoring when the courts depart from the guidelines and

. . . analyzing their stated reasons for doing so” in order to “refine the guidelines to specify more

precisely when departures should and should not be permitted.” And guideline amendments,

52

informed by research and appellate review, was expected to help reduce ambiguities, circuit conflicts,

and problematic guidelines provisions (Wilkins & Steer, 1993).

Further research and guideline revisions were anticipated in many other areas. Data collection

was planned to evaluate the validity and “crime-control benefits” of the criminal history score

(Supplementary Report, 1987, at 44). The Four-Year Evaluation called for additional research on the

effects of the guidelines on sentence length and the use of incarceration, and on sentencing disparity,

especially “in the area of departures and the interaction of the guidelines with mandatory minimum

penalties” (USSC, 1991a, at 54). 

Because the guidelines had been fully implemented for only a short time, the statutorily

mandated Four-Year Evaluation was recognized as “a preliminary examination of the short-term

effects of the guidelines during the first few years of implementation” (USSC, 1991a, at 1). Much

more data is available today. While the guidelines have been the subject of a large critical literature,

and anecdotal reports from the field suggest breakdowns in some of the key components of the

system, objective evaluation must be based on empirical evidence. This report seeks to use all the

available research from both inside and outside the Commission to answer two sets of questions:

 Evaluative questions: Are the goals of the SRA being met? Have certainty, severity,

rationality and transparency increased, and unwarranted disparity decreased? 

 Diagnostic questions: Are the components being implemented? And if not, how has

this affected the system’s ability to reach its goals?
 Pub. L. No. 98–473 (1984). See generally 28 U.S.C. § 994(m). 53

 28 U.S.C. § 994(i). 54

38

Chapter Two: 

Impact of the Sentencing Guidelines on 

the Certainty and Severity of Punishment

 A. Introduction to the Chapter and the Data

1. Sentencing Policy and the Scale of Imprisonment

 

The text and legislative history of the Sentencing Reform Act [SRA], reviewed in Chapter

One, make clear that the SRA aimed to increase the certainty and severity of punishment by

eliminating parole and increasing sentencing severity for some crimes. Congress instructed the

Commission to ensure that “the guidelines reflect the fact that, in many cases, current sentences do

not accurately reflect the seriousness of the offense.” The SRA specifically required “a substantial 53

term of imprisonment” for some types of offenses and offenders. The Commission also determined 54

from its own analyses that penalties for some types of crime, such as “white collar” offenses, were

disproportionately low compared to other types of theft involving similar economic losses. Thus,

both Congress and the Commission endeavored to change historic sentencing practices by using the

new instrument of policy control created by the SRA—the federal sentencing guidelines. In this

chapter we evaluate the effects of these efforts. 

Some criminologists have been skeptical that explicit policy changes imposed by centralized

authorities, such as adoption of sentencing guidelines, can significantly alter historic sentencing

practices. The “going rates” of punishment for various types of crime and the overall “scale of

imprisonment”—the proportion of a jurisdiction’s population that is imprisoned at any given

time—seem subject to local, cultural, and institutional forces that are hard to explain and even harder

to control (Zimring & Hawkins, 1991). Experience with sentencing reform in the states has

convinced some observers that guidelines can successfully change sentencing practices, despite

evidence of circumvention through plea bargaining and other practices (Tonry, 1996). But room for

skepticism remains. It has been shown, for example, that neither variation in crime rates among

different jurisdictions, nor the adoption of determinate sentencing policies, have consistent effects

on rates of prison admissions or on prison populations (Marvel & Moody, 1996). Explicit

policymaking through law appears to be just one factor among many that determine incarceration

rates at a given time in a given jurisdiction. The analyses in the remainder of this chapter

demonstrate, however, that the federal sentencing guidelines have had a significant, independent

effect on federal sentencing practices, along with other legal and policy changes occurring during

the last fifteen years. 
39

Source: Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics (2001); BJS, Historical Statistics on

Prisoners in State and Federal Institutions (1988).

6) 

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Figure21: 

Sentenced Prisoners in Federal Institutions 

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Sentenced Prisoners in State and Federal 

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40

Whatever the causes, there is no dispute that in recent decades the scale of imprisonment has

climbed dramatically over historic levels in the federal and in most state criminal justice systems.

Figure 2.1 shows that both federal and national imprisonment rates—the number of prisoners per

100,000 adult residents—remained fairly steady for fifty years before climbing to over four times

their historic levels by 2002. The growth of the federal system began a decade after the states but

has continued even as growth in the states has flattened. In 2002, the Federal Bureau of Prisons

became the largest prison system in the country, surpassing California, and is now responsible for

over 174,000 inmates (BJS, 2003; BOP, 2004).

This chapter explores the contribution of the sentencing guidelines to these trends.

Specifically, longitudinal data on federal sentencing practices is reviewed, beginning with changes

in the percentage of offenders who receive prison time instead of simple probation, or instead of one

of the new “intermediate sanctions,” such as home confinement with electronic monitoring. The

chapter discusses how the abolition of parole has changed the relationship between sentences

imposed and time actually served and tracks the expected length of imprisonment for various types

of crime over the period of guidelines implementation. After examining overall trends for the major

crime groups, the chapter focuses on specific crime types and notes that sentences have increased

dramatically for some types of crime while remaining largely unchanged for others. Finally, the

extent to which the observed changes can be attributed to the guidelines themselves, as opposed to

other legal and social changes that occurred over the same time period, is discussed.

2. Assembling the Data 

Longitudinal data on the effects of the guidelines on federal sentences are hard to assemble.

One early study covered the beginning of guidelines implementation, but could not continue past

1991 because its data source—the Federal Probation Sentencing and Supervision Information System

[FPSSIS]—was dismantled as the Sentencing Commission’s database became operational

(McDonald & Carlson, 1993). Data from the Administrative Office of the U. S. Courts [AO] cover

a long time period but contain limited information on intermediate sanctions and offender

characteristics. Periodic reports from the Federal Justice Statistics Program provide trends from data

compiled from various agencies, including the AO, the Executive Office for U.S. Attorneys, the U.S.

Sentencing Commission [USSC], and the Federal Bureau of Prisons (see, e.g., BJS, 2002a).

Different agencies collect data for different purposes, however, so it is not surprising that the

information collected, and the definitions and categories used, vary somewhat from agency to agency

(BJS, 1998). To identify the effects of a particular policy intervention, such as implementation of

the guidelines, different datasets must be combined making every effort to ensure comparability

across the years. 

Technical Appendix D gives more detailed explanations of the data and methods used in this

chapter. Trends in the use of imprisonment were determined using FPSSIS for the years in which

it is available and USSC monitoring data for subsequent years. Changes is average imprisonment

length were determined controlling for the effects of parole for preguidelines cases, and credit for

good time for guidelines cases, using an estimation procedure developed by the Commission. Trends

are reported for offenders sentenced, rather than released, in each year to assess the immediate

impact of changes in sentencing policy.
41

Prison was not the only method of

punishment historically, and is not

the only method available today.

B. The Increased Certainty of Imprisonment

1. Historical Development of the Use of Imprisonment 

in the Federal System

To put the changes of the last fifteen years into context, it is useful to review briefly the

history of imprisonment in the United States. Today, the punishment for almost all serious crimes

is a term of imprisonment, but prisons were not always the dominant form of punishment. In

colonial times, whipping, fines, banishment, and public humiliations, such as time in the stocks,

were common punishments for the least serious crimes. Following English practice, repeat offenders

and those guilty of more serious offenses were sentenced to capital punishment. After independence,

reform-minded legislators sought forms of punishment that were more effective (jurors were

reluctant to convict simple thieves knowing that they faced execution) and that were more suitable

to the new popular republic. Imprisonment quickly emerged as an enlightened alternative to

“barbarous usages,” such as corporal punishment or the gallows, for all but the most serious crimes

(Rothman, 1995, quoting New York sentencing reformer Thomas Eddy). 

During the Jacksonian period, prisons became “penitentiaries,” and moral reform of the

convict became the goal. Every state—federal criminal courts did not yet generate enough convicts

to require separate federal prisons—spent considerable sums on construction of penitentiaries. These

were such a noteworthy American experiment that many European visitors, including Alexis de

Tocqueville, came to the new republic specifically to study them. As the mix of offenders changed

and the number of incarcerated offenders increased, prisons became crowded and unruly, and prison

discipline came to include corporal punishment as a way of enforcing strict prison rules (Rotman,

1995). By the end of the Civil War, the reformatory ideals of the penitentiary had largely given way

to the practical realities of modern imprisonment, with overcrowding and brutality among prisoners

and staff a grim reality. 

The increasingly obvious failure of prisons

to achieve the moral reform of inmates led to

repeated calls for change and a search for

sentencing alternatives (Rotman, 1995). The

invention of probation and parole release and the

conversion to indeterminate sentences during the

Progressive Era early in the twentieth century, as discussed in Chapter One, were responses to these

failures. The federal government began to develop separate prisons during this era, with construction

of penitentiaries at Leavenworth in 1897 and Atlanta in 1902. The federal system was among the

first to adopt innovations, such as merit selection of prison wardens and eight-hour workdays for

prison guards, and to humanize conditions in the cell blocks through the introduction of basic

amenities, such as round dining tables to replace the long wooden benches of the state “big houses.”

Most importantly, from its inception, the federal system operated largely as an indeterminate

sentencing system. The Federal Bureau of Prisons, created in 1929, set a new standard for

classification and assignment of prisoners based on criminological studies, with lower-risk offenders

sent to new lower-security prison camps (Rotman, 1995). The Parole Board, later the Parole
 USSG §5C1.1(e) represents a simple schedule of this type. 55

42

The percentage of offenders

receiving simple probation has

been cut in half under the

guidelines.

Commission, determined release dates based on an assessment of the inmates’ progress toward

rehabilitation. 

As faith in rehabilitation faltered in the 1970s, indeterminate sentences fell into disfavor

(Allen, 1981). Many criminologists turned to developing a theory of punishment focused on the

seriousness of the offender’s current offense and the offender’s danger to the community, rather than

the offender’s potential for rehabilitation (Von Hirsch, 1976; Singer, 1979). Faced with criticism

about arbitrary decisions and limited procedures, the federal Parole Commission began the process

of developing guidelines for release decisions. These were based on empirical analyses and

emphasized the seriousness of the offense and the offender’s risk of recidivism, rather than an

assessment of their progress toward rehabilitation (Gottfredson, et al., 1975). 

In the last quarter of the twentieth century, making punishments uniform and proportionate

became the dominant concern of sentencing reformers. To satisfy the principle of proportionality,

the severity of punishment had to be fitted to the seriousness of the crime, and the length of

imprisonment came to be seen as the primary measure of punishment severity. To avoid the need

for imprisonment in all cases, however, interest in “intermediate sanctions,” such as home

confinement (FJC, 1987) or community service (Feeley, et al., 1992), also grew in the 1980s. To

ensure that these intermediate sanctions were sufficiently punitive to punish proportionately,

“exchange rates” were invented to equate alternative sanctions with various lengths of imprisonment

(Morris & Tonry, 1990). Studies confirmed that offenders found some alternative sanctions equally 55

or more punitive than some types of incarceration (Crouch, 1993; Wood & Grasmick, 1995;

Spelman, 1995; Wood & Grasmick, 1999). The perception remained widespread, however, that only

imprisonment—the “clanging of the steel doors”—was sufficiently punitive to punish and deter

(Sigler & Lamb, 1995).

2. Overall Trends in the Use of Imprisonment

Figure 2.2 displays trends in the percentage of all federal felony and major misdemeanor

offenders given either prison, simple probation, or intermediate sanctions from 1984 through 2002.

The solid line indicates a term of imprisonment, the dotted line indicates sentences of probation only,

and the dashed line indicates an intermediate

sanction. In all the figures that follow, split

sentences—which involve a period of

imprisonment followed by a period of

confinement in one’s home or a community-based

treatment facility—are considered sentences of

imprisonment. Sentences to confinement at home

or in a community-based facility for the entire

period of confinement are considered intermediate sanctions, as is intermittent confinement in a local

jail or community-based facility on weekends. Sentences involving no confinement of any type,
 488 U.S. 361 (1989). 56

43

including sentences involving fines and restitution, community service orders, court-mandated drug

or mental health treatment, or other restrictive conditions, are all considered simple probation only.

The shift to guidelines sentencing was gradual over several years. Since the guidelines

applied only to offenses that were committed after their effective date, November 1, 1987 (fiscal year

1988), many of the defendants sentenced during the early guidelines period, in fact, were not

sentenced under the guidelines. [All years reported are fiscal years, which end on September 30 of

the named year and begin on October 1 of the previous year.] In addition, many courts held the SRA

unconstitutional until the United States Supreme Court’s decision in Mistretta v. United States in 56

fiscal year 1989, indicated by the vertical right line. Thus, no single point marks the beginning of

the guidelines era, but the years from 1988 to 1991 are critical transition years. Important mandatory

minimum legislation concerning drug trafficking and the use of a firearm during a crime was also

enacted in 1986 and 1988. Isolating the effects of these different policy changes is difficult, as

discussed at the end of this chapter, but together they established trends toward greater certainty and

severity that would become hallmarks of the guidelines era.

Away from the use of simple probation. As shown in Figure 2.2, between fiscal year 1988

and 1991, the first four fiscal years of guidelines implementation, the use of simple probation was

cut by half. In 1987, 29 percent of offenders received sentences of probation, while only 14 percent

did in 1991. The use of imprisonment spiked in the first few years of guidelines implementation and

then declined slightly before resuming a long gradual climb to 86 percent of all offenders sentenced

in 2002, over 20 percent higher than during the immediate preguidelines era. 
USSG, App. C, Amend. 462 (Nov. 1, 1992).

57

44

Examining the seventeen-year trend shows that the percentage of felony and major

misdemeanor offenders receiving some time in prison was increasing even prior to implementation

of the guidelines, and has continued its gradual long-term increase during the guidelines era. The

percentage of serious federal offenders receiving sentences of simple probation declined gradually

over the same time period, with the sharpest “step” decrease at the time of guidelines

implementation. The decrease in the use of probation is consistent with projections of the effects

of the guidelines made by the Commission when the guidelines were promulgated (Block & Rhodes,

1987). The overall pattern suggests that numerous factors—including changes in the composition

of the federal caseload, in social attitudes toward crime, and in federal penalty statutes—were

toughening sentences throughout the period of study, with implementation of the guidelines having

a substantial additional effect. 

Widening the net. As described in the section on economic offenses below, much of the

decrease in the use of simple probation following implementation of the guidelines is explained by

increased use of intermediate sanctions for “white collar” crimes involving lesser economic losses.

These offenders historically were likely to receive simple probation, but under the guidelines they

increasingly are subject to intermediate sanctions and imprisonment. This development runs counter

to the recommendations of some advocates for intermediate sanctions. Many had hoped that

alternative sanctions would be used to divert offenders from prison and avoid “net widening”—use

of intermediate sanctions for offenders who would historically have received simple probation

(Tonry, 1995). Intermediate sanctions have been recommended as cost savers, since they can punish

low-risk offenders for somewhat less money than imprisonment (GAO, 1994). But in the federal

system, home, community, and intermittent confinement have been used almost exclusively to

increase the severity of punishment for offenses that historically received simple probation. The only

exception to this general finding is among larceny offenders, as described below.

 

The increased use of intermediate sanctions during the guidelines era was influenced by both

legal and practical factors. Under the guidelines’ zone system, discussed in Chapter One, prison is

available as a sentence for all offenders, but simple probation is available only for the least serious

offenders who fall in Zone A. Offenders in Zone B of the Sentencing Table must receive some

period of alternative confinement if they are not imprisoned. Offenders in Zone C must receive

imprisonment, but may serve up to half of the minimum term in some form of alternative

confinement. The Commission amended the Sentencing Table in 1992 to expand modestly the

number of offenders who were eligible for alternative confinement, in order to take advantage of the

increasing availability of a new technology. Electronic monitoring, considered an important 57

enforcement tool for home confinement, became available nationwide in the early years of guidelines

implementation, through the joint endeavors of the Federal Probation Service and the Bureau of

Prisons. This made an intermediate sanction available in locations without access to community

confinement facilities.

Judges responding to the 2002 Commission survey were very positive about the availability

of these alternatives to incarceration. The majority of district judges urged greater availability of
 18 U.S.C. § 3624(b). 58

 18 U.S.C. § 3621(e). 59

 18 U.S.C. § 3582(c)(1)(A). 60

45

probation with confinement conditions, particularly for drug trafficking offenders (64 percent), and

the majority of circuit judges requested that such sentencing options be made either more available

or not reduced from their current availability ( USSG, 2003d, III-18). Across all types of offenses,

only a small minority of judges (approximately 15 percent) urged reduced availability of these

options.

C. The Increased Severity of Prison Sentences

1. The Elimination of Parole and the Importance of Time Served

To appreciate long-term changes in the severity of federal prison sentences, it is important

to distinguish between the sentences imposed by the courts and the time actually served by offenders.

In the preguidelines system, the division of authority between the Parole Commission and

sentencing judges gave rise to a large gap between sentences imposed and the time offenders actually

served in prison. On average, preguidelines offenders served just 58 percent of their imposed

sentences (Sabol & McGready, 1999). In the SRA, Congress mandated that all offenders would

serve at least 85 percent of the sentence imposed by the sentencing judge, with a maximum reduction

of about 15 percent as a reward for good behavior while in prison. Time served today can be 58

affected by other sentence reductions of various kinds. For example, offenders may qualify for early

release for successful completion of drug treatment while in prison, or upon motion of the Director 59

of the Bureau of Prisons, for extraordinary and compelling reasons, such as terminal illness. The 60

Commission has occasionally made reductions in the guideline range applicable to certain categories

of offenders retroactive under USSG §1B1.10, p.s. 

Figure 2.3 illustrates the importance of accounting for the abolition of parole. The solid line

shows average sentences imposed on offenders, while the dashed line shows an estimate of the

prison time likely to be served. (The sentence severity charts in the remainder of this chapter all

follow this standard format.) Examination of the solid line gives no hint of any substantial change

at the time of guidelines implementation. Time imposed actuallydecreased slightly before resuming

its gradual upward trend, which continued until 1992. The dashed line, however, shows that prison

time likely to be served increased dramatically over the period of guidelines implementation. 
46

Average prison time for federal

offenders more than doubled after

implementation of the guidelines.

Offenders sentenced to simple probation or intermediate sanctions are excluded from these

trends, so readers are cautioned to interpret changes in average sentences in conjunction with

changes in the rates of imprisonment. The interaction of these trends can be potentially misleading.

For example, imposing short prison terms on offenders who historically received simple probation

could cause the average prison term to decrease, even while the sentences of other imprisoned

offenders remained the same. These interactions will be discussed in greater detail in the sections

on variations among different offense types later in this chapter. 

2. Overall Trends in Sentencing Severity

The data clearly demonstrate that, on average, federal offenders receive substantially more

severe sentences under the guidelines than they did in the preguidelines era. Between 1987and 1989,

the first year in which the majority of federal

offenders were sentenced under the guidelines, the

average prison time expected to be served almost

doubled. By 1992, the average time in prison had

more than doubled, from 26 months in 1986 to 59

months in 1992. Since fiscal year 1992 there has

been a slight and gradual decline in average prison

time, but federal offenders sentenced in 2002 will still spend about twice as long in prison as did

offenders sentenced prior to passage of the SRA. 

The abolition of parole, the enactment of mandatory minimum penalty provisions, and

changes in the types of offenders sentenced in federal court all contributed to increased sentence
47

severity along with implementation of the guidelines. The influence of each of these factors varies

among different offenses, which is the subject of the next section. 

D. Variations Among Different Offense Types

During congressional debates on sentencing reform and in the early discussions of the

Commission, considerable attention was paid to the adequacy of existing sentences for various types

of crime. For most offenses, the Commission decided to base guideline ranges on the existing

average time served, as revealed in the past practice study discussed in Chapter One. One would

expect average prison time for these crimes to remain relatively constant under the guidelines. For

several other offenses, however, the Commission, either on its own initiative or in response to

congressional actions, established guideline ranges that were significantly more severe than past

practice. Drug trafficking and “white collar”offenses are the two most notable examples, but

guideline ranges were also set above historical levels for robbery of an individual, murder,

aggravated assault, immigration, and rape (USSC, 1987). Fifteen years later, it can be confirmed that

the policy changes initiated by Congress and the Commission substantially increased sentence

severity for virtually all of the targeted offenses. And because these guidelines apply to the most

frequently sentenced offenses in the federal courts, they account for the overall severity increases

seen in Figure 2.3.

A major advantage of the guidelines approach to sentencing is that offenses and offenders

can be categorized along dozens of dimensions relevant to the purposes of sentencing, rather than

only a few dimensions. This section, however, must necessarily over-simplify and lump together

offenses that are dissimilar in many ways. To obtain comparable groups across the preguidelines

and guidelines eras, we categorize offenses only in terms of the most serious count of conviction.

When relevant, changes to statutory elements or other factors affecting the characteristics of offenses

in each category are noted. Technical Appendix D gives more complete information on the statutes

included in each group. 

1. Drug Trafficking Offenses

Drug trafficking offenses have

comprised the largest proportion of the

federal criminal docket for over three

decades (AO, Annual Reports, 1971-

2001). At the beginning of the guidelines

era, approximately half of the persons

sentenced under the new laws were drug

offenders (USSC, Annual Report, 1989,

Fig. VI). As shown in Figure 2.4, that

proportion has decreased to about 40

percent in recent years, largely due to a

substantial increase in immigration
 21 U.S.C. § 841(b). 61

H. REP. NO. 845, 99th Cong., 2nd Sess. Pt. 1, at 16-17 (1986). 62

48

Increases in sentence lengths for

drug trafficking offenders are the

major cause of federal prison

population growth over the past

fifteen years. 

offenses (USSC, Sourcebook, 2001, Tbl. 33). But with growth in the overall size of the federal

criminal docket, the sheer number of drug trafficking offenders sentenced in federal court has

continued to increase every year, reaching 25,376 in 2002.

The large number of drug offenders means that overall trends in the use of imprisonment and

in average prison terms, reviewed above, are dominated by drug sentencing. Analysis using the

Federal Bureau of Prison’s population simulation

model demonstrated that three-quarters of the

growth in the federal prison population in the

early years of guidelines implementation could be

attributed to changes in drug sentencing policies

(Simon, 1993). Changes in drug sentencing

policies are also a primary cause of a widening

gap between the average sentences of Black,

White, and Hispanic offenders, which will be

discussed in Chapter Four. Understanding these trends, and the influences of the policy choices

made by Congress and the Commission, is thus especially important. 

 

Development of the drug trafficking guideline. The Commission’s work developing

sentences for drug trafficking offenders was heavily influenced by passage of the Anti-Drug Abuse

Act of 1986 [ADAA]. The Commission had begun its work prior to passage of the ADAA by

examining the Parole Commission’s guidelines, which set release dates for drug traffickers based,

in part, on the quantity of pure drug with which an offender was involved (USSC, 1987; Scotkin,

1990). The ADAA codified this quantity-based approach by triggering five- and ten-year mandatory

minimum penalties based on the weight of the “mixture or substance containing a detectable

amount” of various types of drugs. The ADAA was expedited through Congress in the summer 61

of 1986 in the wake of a number of well-publicized tragic incidents, including the overdose death

of a first-round NBA draft pick, Len Bias (USSC, 2002a). The legislative history of the statute is

limited primarily to statements made on the House and Senate floors. It presents only a partial

picture of why Congress made quantity a dominant consideration for sentencing drug offenders

(USSC, 1991b). There are several indications, however, that Congress intended to establish a twotiered penalty structure for most drugs. Relying on information supplied by law enforcement,

Congress apparently linked five-year penalties to amounts that were indicative of “managers of the

retail traffic,” while amounts linked to ten-year penalties were believed generally indicative of

“manufacturers or the heads of organizations” (USSC, 2002a).62

Enactment of the ADAA created dilemmas for the Commission. For example, if the

Sentencing Commission had followed the Parole Commission and made drug trafficking sentences

dependent on the amount of pure drug, instead of the amount of any “mixture or substance

containing a detectable amount,” courts would be required to consider two different quantities at
49

USSG §2D1.1 adopts and extends

the drug quantity-based approach to

sentencing drug traffickers found in

the Anti-Drug Abuse Act of 1986.

sentencing, one for purposes of the statutes and another for the guidelines. If the Commission had

given more weight to other potentially relevant factors, such as an offender’s role within the drug

trafficking organization, then sentences under the guidelines might conflict with sentences required

by the statutes in a large number of cases. The statutes would “trump” the guidelines and

consideration of the other factors effectively would be voided. 

The Commission drafted a drug trafficking guideline that 1) generally measures the

applicable amount based on the weight of the mixture orsubstance, and 2) linked the quantity levels

in the ADAA to guideline ranges corresponding to the five- and ten-year mandatory minimum

sentences. USSG §2D1.1 assigns base offense levels according to a DrugQuantityTable. The Table

requires imprisonment of 63-78 months for offenses involving drug amounts at the five-year

mandatory minimum penalty level, and

imprisonment of 121-151 months for drug

amounts at the ten-year statutory level.

Adjustments lengthen the sentence for any prior

offenses, for an offender’s leadership role, for the

possession of any weapon, for any death or injury

resulting from use of the distributed drug, and for

a variety of other aggravating factors. Downward

adjustments for accepting responsibility or for a mitigating role in the offense can reduce the

guideline range below the statutory minimum in some cases, in which case Part G of the Guidelines

Manual, “Implementing the Total Sentence of Imprisonment,” requires a guideline sentence at the

mandatory minimum level. This “trumping” of the otherwise applicable guideline range creates

disparity by treating less culpable offenders the same as more culpable ones (USSG, 1991b), but is

necessitated by the need to make the guidelines consistent with the quantity thresholds found in the

mandatory minimum penalty statutes.

In addition to linking the drug amounts in the statutes to guideline ranges at the five- and tenyear levels, the Drug Quantity Table extends the quantity-based approach across 17 different levels

falling below, between, and above the two amounts specified in the statutes. The current table

ranges from offense level six, which allows probation for some first-time marijuana offenders, to

level 38, which requires prison terms of 235-293 months for first time offenders accountable for

large quantities of drugs. Offenders receiving adjustments for criminal history, a leadership role, or

other aggravating factors can receive higher guideline ranges up to life in prison. The Guidelines

Manual, Supplementary Report (USSC, 1987) and other documents published at the time of

guideline promulgation do not discuss why the Commission extended the ADAA’s quantity-based

approach in this way. This is unfortunate for historians, because no other decision of the

Commission has had such a profound impact on the federal prison population. The drug trafficking

guideline that ultimately was promulgated, in combination with the relevant conduct rule discussed

below, had the effect of increasing prison terms far above what had been typical in past practice, and

in many cases above the level required by the literal terms of the mandatory minimum statutes.

One explanation for the Commission’s approach is the need to provide a full range of

quantities and penalties to achieve proportionality in drug sentencing. Under this view, drug type

and quantity are reasonable first measures of the harm for which a drug trafficker should be held
See USSG, App. C, Amends. 484, 485, 488 (Nov. 1, 1993), & 503 (Nov. 1, 1994). See 63

also Chapman v. U.S., 500 U.S. 453 (1991)(holding that the Commission’s LSD weighing

method could not be used to determine the applicability of mandatory minimum penalties). 

USSG, App. C, Amends. 78 (Nov. 1, 1989) & 439 (Nov. 1, 1992). 64

See USSG §2D1.1, comment., n. 1, 9, 12, 15, 16 and comment., backgr’d. (citing 65

examples of circumstances where the Commission recognizes that quantity may underestimate

offense seriousness). 

50

accountable. Another possible reason for the Commission’s approach was to avoid sentencing

“cliffs” (USSC, 1991b). A cliff arises where a trivial change in quantity has a substantial effect on

sentences. For example, if the Drug Quantity Table contained only the two thresholds found in the

ADAA, an increase from 499 to 501 grams of powder cocaine could result in a dramatic increase in

punishment, just as it does under the mandatory minimum statutes. The drug trafficking guideline

provides more finely tuned distinctions among offenses and, therefore, more incremental increases

in punishment.

Finding the proper measure of drug offense seriousness. Whatever the reasons for the

emphasis on quantityin the drug trafficking guideline, commentators soon raised potential problems

with its operation (Judicial Conference of the United States, 1995; Reuter & Caulkins, 1995). By

providing a wide range of punishments for different drug amounts, the importance of quantity was

greatly elevated compared to other offense characteristics. Some observers doubted that drug

quantity was a reliable measure of offense seriousness, or could be determined with sufficient

precision to justifyseventeen meaningful distinctions among offenders(Schulhofer, 1992). Specific

types of cases in which quantity served as a poor proxy for offense seriousness were identified by

the Commission and by other observers (USSC, Working Group Report, 1992; FJC, 1994). For

example, the weight of different inactive ingredients mixed with the drug—dilutants, carrier media,

and even humidity—can result in disparate sentences for offenders who sell similar numbers of doses

of a drug (Alschuler, 1991). Subsequently, the Commission developed a standardized weighing

method for LSD doses and added other application notes designed to control for these problems,63

but arbitrary variations due to the weight of inactive ingredients remain (Meier, 1993; Stockel,

1995). 

More generally, the amount of drugs for which an offender is held accountable is determined

by the relevant conduct rules and research suggested significant disparities in how these rules were

applied (Hofer & Lawrence, 1992). The Commission repeatedly amended the relevant conduct

commentary to clarify its operation in drug trafficking cases, but questions remain about how 64

consistently it can be applied (Marks, 2003). Drug quantity often is highly contested, and disputes

must be resolved based on potentially untrustworthy factors, such as the testimony of coconspirators. Drug quantity has been called a particularly poor proxy for the culpability of low-level

offenders, who may have contact with significant amounts of drugs, but who do not share in the

profits or decision-making (Goodwin, 1992; Wasserman, 1995). The Commission also identified

ways that drug quantity can underestimate offense seriousness, and promulgated commentary

encouraging upward departure in these situations. 

65
 Pub. L. No. 104-38, 109 Stat. 334 (Oct. 30, 1995). 66

See also Federal Mandatory Minimum Sentencing: Hearing on H. R. 2199 Before the 67

Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103rd Cong.,

1st Sess. 30 (1993).

See 18 U.S.C. § 3553(f) and USSG §5C1.2. 68

 USSG, App. C, Amend. 515 (Nov. 1, 1995). 69

 Id. at 624 (Nov. 1 , 2001).

70

 See id. at 640 (Nov. 1, 2002) and 668 (Nov. 1, 2004). 71

51

Finding the correct ratios among different drugs and the correct quantity thresholds for each

penalty level has also proven problematic. The Commission previously reported that the 100-to-1

drug quantity ratio between crack and powder cocaine fails to reflect the relative harmfulness of

different drugs (USSC, 1995, 1997, 2002). In addition, the quantity thresholds linked to five- and

ten-year sentences for crack cocaine have been shown to result in severe penalties for many streetlevel sellers and other low culpability offenders. As a result, the Commission recommended revision

of the mandatory minimum penalty statutes and the guidelines. In 1995, the Commission

recommended that the quantity levels for crack cocaine should be set at the same level applicable

to powder cocaine. This recommendation, and a guideline amendment promulgated to implement

it, were rejected by Congress. In 1997, the Commission suggested a range of quantity thresholds 66

for both powder and crack cocaine that would have reduced the ratio between them by both raising

the threshold for crack and reducing the threshold for powder (USSC, 1997). This recommendation

was not acted upon. Most recently, the Commission recommended that the ratio between powder

and crack be reduced to 20-to-1 by raising the threshold quantity amountsfor crack cocaine. Certain

enhancements to the drug trafficking guideline generally were also recommended to better target the

most dangerous and culpable offenders (USSC, 2002a). To date, Congress has not acted on this

recommendation.

Evidence that the mandatory minimum statutes were resulting in lengthy imprisonment for

many low-level, non-violent, first-time drug offenders (DOJ, 1994) led Congress in 1994 to enact 67

a so-called “safety valve,” which waived the mandatory penalties for certain categories of less

serious offenders. In the same legislation, Congress directed the Commission to revise the 68

guidelines to better account for the mitigating factors that qualify offenders for the safety valve, and

thus reduce the importance of drug quantity in those cases. In 1995, a two-level reduction was added

for some offenders who met the safety valve criteria, and in 2001 this was expanded to all qualified 69

drug offenders. Most recently, the Commission again attempted to ameliorate the influence of 70

large drug quantities on sentences for the least culpable offenders by capping the quantity-based

offense level for defendants who receive a mitigating role adjustment under USSG §3B1.2.71
 Letter from Senator Jeff Sessions, United States Congress, to Judge Diana E. Murphy, 72

Chair, United States Sentencing Commission, regarding “Targeting Sentences on the Degree of

Culpability and the Likelihood of Recidivism,” July 13, 2000.

52

Given the problems with relying on drug type and quantityto measure the seriousness of drug

trafficking offenses, some observers have called for a fundamental re-examination of the role of

quantity under the guidelines (Bowman, 1996; RAND, 1997; ABA, 2002). Thirty-one percent of

district court judges responding to the Commission’s 2002 survey listed drug sentencing as the

greatest or second greatest challenge for the guidelines in achieving the purposes of sentencing

(USSC, 2003d), with 73.7 percent of district court judges and 82.7 percent of circuit court judges

rating drug punishments as greater than appropriate to reflect the seriousness of drug trafficking

offenses (USSC, 2003d). The Commission has been asked to identify ways to amend current drug

penalties to better target the most culpable and dangerous offenders.

72

Use of imprisonment. Figure 2.5 shows that a large proportion of drug traffickers received

sentences of imprisonment in the preguidelines era, and this proportion was increasing at the time

of guidelines implementation, perhaps as a result of the ADAA enacted in 1986. Upon full

implementation of the guidelines, the percentage rose and has held steady at about 95 percent. The

use of simple probation and intermediate sanctions has dropped to less than five percent each.

Separate analyses of heroin and other schedule I narcotics, cocaine and other schedule II narcotics,

and marijuana (the only breakdowns possible with the data available across the entire time period)

show only minor variations in this general pattern.
53

Length of time served. The graph in Figure 2.6 shows the dramatic increase in time served

by federal drug offenders following implementation of the ADAA and the guidelines. The time

served by federal drug traffickers was over two and a half times longer in 1991 than it had been in

1985, hovering just below an average of 80 months. In the latter half of the 1990s, the average

prison term decreased by about 20 percent but remained far above the historic average. Analysis of

three separate drug groups showed that this overall pattern is repeated for each drug type, although

the severity levels are highest for crack cocaine, followed by powder cocaine and heroin and other

scheduled narcotics. Marijuana offenses received the shortest prison terms.

What caused the trends? While sentences for drug trafficking were changing prior to

enactment of statutory minimum penalties and implementation of the guidelines, and have continued

to change since, there can be no doubt that the policy choices of Congress and the Commission in

1986, 1987, and 1988 each had a dramatic impact on federal sentencing policy for drug offenders.

Attempting to precisely allocate responsibility for these changes between the statutes and the

guidelines may be impossible (Schwarzer, 1992). As described above, the Commission

accommodated the mandatory minimum penalty levels when it developed the drug trafficking

guideline, so the influence of the ADAA is both direct when it controls the sentence in an individual

case by trumping the guidelines, and indirect through its influence on the design of the drug

guideline itself. 
54

It is important to note, however, that the Commission’s choices when drafting the guidelines

contributed significantly to these trends. In the Supplementary Report that accompanied

promulgation of the guidelines, the Commission projected the estimated impact of 1) the ADAA,

2) the career offender provisions of the SRA (implemented at USSG §4B1.1) and 3) the guidelines

themselves (USSC, 1987, Table 3, at 69). This analysis suggested that the ADAA would increase

average sentences from 23 months to 48

months, and the career offender provision

would add another nine months. The

guidelines themselves were projected to

increase sentences byonlyan additional month.

Later analyses raised questions about this

result, however, by reporting that the sentences

required by the guidelines above the minimums

required by the ADAA significantly increase

the average prison term, at least for crack cocaine offenders (McDonald & Carlson, 1993). Analyses

conducted for the present report confirm the later findings for all drug offenders: the guidelines have

significantly increased average sentence length above the levels required by statute. About 25

percent, or eighteen months, of the average expected prison time of 73 months for drug offenders

sentenced in 2001 can be attributed to guideline increases above the mandatory minimum penalty

levels. (Appendix D gives details of the analysis supporting this conclusion.) 

The recent downturn. In recent years, attention has focused on the decrease in prison terms

that began in the 1990s. There are many possible explanations for the trend, including changes in

the characteristics of drug crimes being committed or being sentenced in federal courts, changes in

the charges being brought or plea bargains being offered, or changes in the way the guidelines are

being applied. In addition, as noted above, Congress and the Commission adopted several measures

during this time period that would decrease sentence lengths for some offenders, including the

“safety valve” and additional reductions for first-time, low-level offenders. Congress and the

Commission also increased penalties for several types of drugs over this time period, however,

including methamphetamine, amphetamine, “ecstasy,” and various “date rape” drugs.

The available data suggest a general trend toward less serious offenses and a greater

incidence of mitigating factors in cases sentenced in the late 1990s. The median drug amount for

powder and crack cocaine and for marijuana decreased from 1996 to 2001 (the only years for which

data are available). The percentage of defendants pleading guilty and receiving the acceptance of

responsibility adjustment has increased steadily over the past decade. The application of mitigating

guideline adjustments associated with the safety valve and a defendant’s minor role in the offense

also have increased. And the percentage of offenders benefitting from downward departures became

increasingly frequent, with the use of USSG §5K1.1 departures growing in the earlypart of the 1990s

and other downward departures increasing in later years. On the other hand, as shown in Figure 2.7,

the percentage of first offenders sentenced under the drug guideline, while still over 50 percent, has

declined slightly since the early 1990s.

Over 25 percent of the average prison

time for drug offenders sentenced in

2001 can be attributed to guideline

increases above the mandatory

minimum penalty levels.
55

The trend toward somewhat lower sentences in the late 1990s has led observers to conclude

that those charged with implementing drug sentences have searched for ways to mitigate the severe

prison terms mandated by the ADAA and the guidelines (Schulhofer & Nagel, 1997; Saris, 1997;

Bowman & Heise, 2001, 2002). This conclusion is reinforced by surveys that have consistently

shown that the “harshness and inflexibility” of the drug trafficking guideline is seen as the most

significant problem with the sentencing guidelines system (GAO, 1992; see also FJC, 1997; USSC,

1991c, 2003).

2. Economic Offenses

Similar punishment for similar loss. As shown in Figure 2.4, economic offenses—which

include larceny, fraud, and non-fraud white collar offenses—constitute the second largest portion

of the federal criminal docket. A wide variety of economic crimes are prosecuted and sentenced in

the federal courts, ranging from large-scale corporate malfeasance, to small-scale embezzlements,

to simple thefts. The federal criminal code contains a plethora of provisions covering economic

offenses, many of which are not easily placed into simple categories such as fraud or larceny

(Bowman, 2001). Particular scholarly and media attention has occasionally focused on “white

collar” crimes, although there is no general agreement on what is meant by that term (Schlegel &

Weisburd, 1992). 

In establishing sentences for economic offenses, the Commission grouped the many statutory

provisions into a small number of guidelines and made the pecuniary loss resulting from the crime

a primary consideration in determining sentences. The Commission’s empirical study of past

sentencing practices revealed that in the preguidelines era, sentences for fraud, embezzlement, and
Sentencing Commission Guidelines: Hearing Before the Senate Comm. on the 73

Judiciary, 100th Cong., 1st Sess., 55 (1987)(statement of Stephen Breyer, Commissioner,

USSC).

USSG, App. C, Amend. 617 (Nov. 1, 2001).

74

 Sarbanes-Oxley Act of 2002, Pub. L. No. 107–204, §§ 805, 905, 1104, 116 Stat. 745 75

(July 30, 2002).

56

tax evasion generally received shorter sentences than did crimes such as larceny or theft, even when

the crimes involved similar monetary losses (USSC, 1987). A large proportion of fraud,

embezzlement, and tax evasion offenders received simple probation. In response, the guidelines

were written to reduce the availability of probation and to ensure “a short but definite period of

confinement” for a larger proportion of these “white collar” cases, both to ensure proportionate 73

punishment and to achieve adequate deterrence (Steer, 2003). 

Over the years, additional aggravating adjustments were added to the theft and fraud

guidelines, often in response to congressional directives (see Appendix B.) The appearance early

in the guidelines era of these mandated sentence increases for economic crimes, and the perceived

absence of empirical research establishing the need for them, led one former Commissioner to warn

that the SRA’s promise of policy development through expert research was being supplanted by

symbolic “signal sending” by Congress (Parker & Block, 1989).

In 2001, following a six-year process of deliberation, collaboration with the Judicial

Conference and DOJ, and field testing, the guidelines governing economic crimes were

comprehensively amended as part of an “Economic Crime Package” (see Bowman, 2001, for a

history of the efforts leading to this package). This amendment sought to further refine and 74

simplify the guidelines, focus the most severe sentences on the most serious offenders, and clarify

the definition of pecuniary loss. In the wake of the corporate scandals of 2002, the guidelines again

were amended at the direction of Congress to further increase sentence severity (Steer, 2003). The 75

data reported in this section reflect only the initial effects of the Economic Crime Package and none

of the effects of the 2002 Sarbanes-Oxley amendments because these changes had not taken effect

for cases sentenced by fiscal year 2002. 

Use of imprisonment. Figure 2.8 displays trends in the use of imprisonment, intermediate

sanctions, and probation for offenders convicted of all economic crimes. The most striking trend

is a shift away from simple probation and toward intermediate sentences that occurred as more

economic offenders became subject to the guidelines in the early 1990s. These trends among

economic offenders drive the overall trends for all felons portrayed in Figure 2.2, because economic

offenders comprise the largest share of offenders receiving intermediate sanctions in the federal

system. The use of imprisonment for economic offenders also has increased steadily throughout the

guidelines era.
57

Figure2.8: TypeofSEntencelmposedforEconomic Crimes 

1Xll4 All Economic Crimes 

80% 

GJi~ires Eft:di\e /rata ~ PriscnardSj:lH Serter<es 

t: 

., 

eo% 

., 

-

" 

Q. 4)% 

20% 

0% 

. . 

- . . . . . . . . ' • P,_ia10iy • . . . . . . . -. . . . . . -. . . . . , - . .. . . . Prcbetim et"d / ------ - - -- !lllanalilles 

~-- ~- --- - - FisaiYIW 

Saxre U.S. Serteo::irg CQnmissial, 1934-199J /lO FPSSIS Detafiles, 1991-2002 USS:: McmaingDaafiles. 

Figure 2.9: Economic Crime CasEioad 

Frad /' /"' 

/ 

/ ........ _,.,....... / 

/ 'V l.a<erry 

/ _,..' ..... / ...... _.....-. --' ..... ---

100J 

/ ......_-; :"":. :-•• · .. / Etrbezzlemert Fa~erEitirg .. ~ 

....... /' .... ToxOifa~ . . . ...... ~ 

. .... T 

0 

----- 1!Bl ._ 1991 ---- 19;6 1~-- = :m1 = 

SOJrre U.S. Serteo::irg canmissial, 1984-199J /lO FPSSISDaa11es, 1991-2002 USS:: Mcritorirg Detafiles. 
58

As shown in Figure 2.9, fraud offenses constitute the largest proportion of economic offenses,

and their proportion has grown. Thus, the trends for economic offenses are dominated by fraud

offenders. The thumbnail graphs show that the

shift to intermediate sanctions is pronounced

for fraud, forgery/counterfeiting, and tax

offenders. Embezzlement showed the same

shift in the early 1990s, but beginning in 1992,

larger numbers of embezzlers were imprisoned.

The use of simple probation has been reduced

by about two-thirds for fraud offenders and by

about half for embezzlers and tax evaders. The

rate of imprisonment for fraud offenders rose

from about 50 percent in the preguidelines era to almost 70 percent by 2001. For embezzlers, the

increase over the same time period was from about 35 to 60 percent. The one unexpected finding

is that while use of intermediate sanctions for tax offenders increased from virtually nothing to nearly

30 percent of all cases, the use of imprisonment for tax evaders actually fell slightly after guidelines

implementation until returning to historic levels in 2000.

Interestingly, among larceny offenders, intermediate sanctions have been used to divert from

prison about 20 percent of the offenders who once were incarcerated. While this pattern is

commonplace in state systems, it is something of an anomaly in the federal system where

intermediate sanctions have generally “widened the net,” as discussed above. The reduced use of

imprisonment for larceny offenders appears to reflect the Commission’s concerted effort to equalize

penalties between “white collar” and “blue collar” offenders.

These data raise the question of whether the Commission’s goal of assuring a “short but

definite period of confinement” for white collar offenders has been achieved. The answer depends

both on whether intermediate sanctions satisfy the goal and which offenses count as “white collar.”

The guidelines ensure that offenses involving the greatest monetary losses, the use of more

sophisticated methods, and other aggravating factors are given imprisonment. Certainly the use of

simple probation has been slashed—by about two-thirds for fraud offenders and by about half for

embezzlers and tax evaders. For most types of economic crime, the rate of imprisonment has also

been substantially increased. Despite these increases, in 2002 many district (63%) and circuit (64%)

court judges still felt the guideline sentences were less than appropriate to reflect the seriousness of

fraud offenses, with smaller majorities believing the same regarding theft/embezzlement/larceny

(USSC, 2002). These findings were obtained prior to the full impact of the Commission’s 2001

Economic Crime Package and the 2002 amendments made pursuant to the Sarbanes-Oxley Act.

Length of time served. As shown in Figure 2.10, the amount of prison time imposed on

economic offenders declined significantly upon implementation of the guidelines, but with the

abolition of parole the length of time actually served remained fairly constant at about 15 months.

Fraud offenders again dominate the trends, with their average sentence hovering close to 15 months.

(The one-year peak in 1988, seen across all economic offense types except tax offenses, may reflect

The rate of imprisonment for fraud

offenders, the most common economic

crime, rose from about 50 percent in

the preguidelines era to almost 70

percent by 2001. 
59

differential implementation of the guidelines in the first year of their application. But it may be a

statistical artifact. As a general rule, statisticians look with suspicion on one-year fluctuations in

otherwise stable trends, especially if they occur at a time of great tumult in the system. Remember

that many courts held the guidelines unconstitutional for this year, potentially affecting the selection

of cases for sentencing.)

The relatively stable time served by economic offenders, as well as the decreases for some

types of offenses, was noted early in the guidelines era (Block, 1989). These trends were caused by

the Commission's decision to increase the use of imprisonment. As one Commissioner stated, “[T]he

flip side of the Commission's dramatic increase in the likelihood of confinement is an equally

dramatic decrease in the projected time served by defendants who serve time” (Block, 1989,

emphasis supplied). For example, average time served for embezzlement has decreased from

preguidelines levels, but nearly twice the proportion of embezzlers are going to prison. As more

embezzlers were given short periods of imprisonment, the average length of imprisonment among

all embezzlers declined as the new offenders were included in the average. In the case of larceny,

however, the reduction in the percentage going to prison is matched by a reduction in time served,

again reflecting the Commission’s design to reduce sentence severity for simple theft, while

increasing it for fraud, embezzlement, and tax offenses (USSC, 1987). 
60

Economic Crim! Thmmmils 

Larceny Larceny 

·- ., 

- C •a .......... en /' .............. _ c " - !u ~ ""'\. ~ :o ......... . 

, . .......... . ... • - ---- ' : " - ............ ~ ..... 6 --- - " • , - ~ ----- .•. ' ·- ... ••• ·-·- ... 1211 211D ·= ·- ••• ·- ... .. , .•. ·- ... DID 2CIR 

FI:J~Yl3r lls~Yt• 

F'raud Fraud 

·- ~ -~ 

- '· .......... 

·-········"··· g_ 

• - ~- ~ ... / 

~- . ..... ,. I'-

- ......... -- - -- - - -- f " - ······ _./ ..... :: •.: :.,;: ----·- · " • ,~ - .•. ' ·- ... ••• ·-·- ... ••a :ca~ ·= .•. ·- ••• ·- ·- .•. ·- ... DID :em 

fi:J~Ytar lls~Yts 

Embezzlement Embezzlement 

·- ~ 

- .~ 

•• ............... ~ .... • ~- - . , • • . .......... ~ r ~ 

• - ~- --;". ~ ....... : " ........ - = . ' s ,, -.- -· - • .................... , - ~ -- - .•. ' ·- ••• ••• ·-·- ... 1211 211D ·= .•. ·- ••• ·- ·- .•. ·- ... DID 2CIR 

FI:J~Ytar lls~Yt:l' 

Forgery/Counterfeiting Forgery/Counterfeiting 

·- ~ 

- .~ 

•• .................... g • 

c - • .......... •• ~ •• : - • - -.. .. ~ ......... : " ........ - - = ····· s " -- - • , - ..................... ~ -- .•. ' ·- ... ••• ·-·- ... ••a :Gill ·= .•. ·- ••• ·- ·- .•. ·- ... 21110 :em 

FI:J~Ytar lls~Ytll' 

Tax Offenses Tax Offenses 

·- ~ 

= .~ 

..... i ...... i: 

c - . ~ ........... ;:::r- ~- '

· 

•• ............ • - • :··· ;~ · ···: ... : " - - ' ' . ... ;··· !"·· ~ ... . .. = ~ ,, ......................... , ~ ------ _ .. 

•a• ' ·- ... .. , ·-·- ... ••a 2CID ·= •a• ·- ••• ·- ·- .•. ·- ... 21110 2CIIZ 

FIS~Yt;,r 111ai'RII' 
61

3. Immigration Offenses

Prior to fiscal year 1994 there were relatively few immigration cases sentenced in the federal

courts. Figure 2.11 shows that in the first three years of the 1990s the number of cases ranged

between 1,000 and 2,000 annually (BJS, 2002c). Beginning in 1995, however, the number of cases

for alien smuggling and illegal entry began to climb, and after the implementation of Operation

Gatekeeper—the Immigration and Naturalization Service’s southwest border enforcement

strategy—the number began to soar, reaching a peak of just under 10,000 cases in 2000. Along with

the phenomenal growth in the size of the immigration offense docket, a series of policy decisions

by Congress and the Commission have steadily increased the severity of punishment for the two

most common classes of immigration offenses: alien smuggling and illegal entry, sentenced under

USSG §§2L1.1 and 2L1.2, respectively.

When the Commission constructed the original guidelines for alien smuggling and illegal

entry, they were based largely on past practice, with a slight reduction in the availability of straight

probation and the amount of time served (Block & Rhodes, 1989). Beginning in 1988, one year after

the original guidelines were enacted, the Commission began a series of amendments which

significantly increased the penalties for these offenses. 

Smuggling, Transporting, or Harboring an Unlawful Alien—§2L1.1. In early 1988, the

Commission amended §2L1.1 to better reflect the typical case sentenced under the guideline, which

involved for-profit alien smuggling. The base offense level was increased by three levels, and a

three-level reduction was provided if the offense was not committed for profit or involved only the
 USSG, App. C, Amend. 35 (Jan. 15, 1988).

76

 Id. at 192 (Nov. 1, 1989). 77

 Id. at 375 (Nov. 1, 1991). 78

 Id. at 450 (Nov. 1, 1992). 79

 Id. at 543 (May 1, 1997) & 561 (Nov. 1, 1997). 80

 Id. at 38 (Jan. 15, 1988).

81

 Id. at 193 (Nov. 1, 1989). 82

 Id. at 375 (Nov. 1, 1991). 83

 Id. at 562 (Nov. 1, 1997). 84

 Id. at 632 (Nov. 1, 2001). 85

62

defendant’s family members. A second amendment to section 2L1.1 occurred less than a year later, 76

when the Commission increased the base offense level for defendants with prior deportations. In 77

1991, the Commission increased the base offense level to 20 if the defendant had been previously

deported after conviction for an aggravated felony. And again in 1992, the Commission revised 78

the specific offense characteristics to enhance penalties based upon the number of aliens, documents,

or passports involved in the offense. Finally, responding to a congressional directive in the Illegal 79

Immigration Reform and Immigrant ResponsibilityAct of 1996, the Commission increased the alien

smuggling base offense level by three levels and made various other changes to the alien smuggling

guideline.80

Unlawfully Entering or Remaining in the United States—§2L1.2. The first amendment

to §2L1.2, effective on January 15, 1988, limited the guideline to felony cases only and increased

the base offense level from six to eight. In 1989, the Commission added a specific offense

81

characteristic to section 2L1.2, increasing the offense level by four levels for defendants previously

deported after conviction for a non-immigration related offense. Two years later, the Commission 82

made the most significant change to the guideline by creating a 16-level enhancement for re-entry

by offenders with prior convictions for aggravated felonies. In 1997, acting upon a congressional 83

directive in the 1996 Immigration Reform legislation, the Commission expanded the eligibility

criteria for the “aggravated felony” enhancement to include numerous other offenses. Finally, in 84

2001, responding to complaints from sentencing practitioners along the southwest border, the

Commission altered the aggravated felony enhancement to provide graduated enhancements of eight,

twelve, or sixteen levels for prior aggravated felonies, depending on the seriousness of the prior 85

offense.
63

These amendments, especially the enhancement for prior aggravated felonies, and when

coupled with the elimination of petty immigration offenses from the guidelines, explain why the

original impact projections for the immigration guidelines underestimated the percentage of

offenders who would be sentenced to prison and the length of time they would serve (Gaes, et al.,

1992; Gaes, et al., 1993). They also explain the trends visible in Figures 2.12 and 2.13, which show

the percentage of offenders receiving each type of sentence and the length of prison time likely to

be served for all types of immigration offenders combined.

Use of imprisonment. The use of imprisonment in immigration cases is affected by the fact

that many offenders are non-resident aliens. Lacking a legal home in the United States, many are

incarcerated even prior to sentencing. Immediate deportation has also become a frequent response

for those individuals arrested for illegal entry (BJS, 2002c). Figure 2.12 shows that there has been

a gradual increase in the use of imprisonment throughout the period of study, reflecting a gradual

decrease in the use of simple probation. Legislative and Commission changes to these penalties have

focused on increasing offense levels. This has pushed greater numbers of offenders into the zones

of the Sentencing Tables in which probation and alternative sentences are unavailable. Even when

these alternatives are available, non-resident aliens are generally unable to participate in alternative

confinements such as home confinement due to their lack of a home in the United States and their

high risk of flight from community detention.
64

3) 

25 

~ c 

!i ·c 

lO 

r 15 

'e 

.. 

~ 

f 

10 

5 

0 

35 

30 

5 

0 

Figure2.13: Mean Prison Sentence Length for Immigration Offenses 

Guidelines Effective / """-- ~ / ...... - -- -- ~ ~Illegal Immigration 

Time Imposed l\ ~ Reform and Immigrant 

Respo nsib ilio/ Act 

Time Served - ... _ ...... Aggravated Felony 

Enhancement to 2L 1.2 

...!""endn ntto2L12 

1984 1935 1936 1987 1988 1989 19;10 19;11 19;12 1993 1994 19l5 1996 19;17 19;18 199;1 2000 2001 2002 

Fiscal Year 

Source: U.S. Ser.Wncing Comrrission, 19841~ AD FPSSIS Datafiles, 1"'1·2002 USSC fvbnitoring Datafiles. 

Figure 2.14:1nunignmn Time Sewed 

Ilkgal&dry (2Ll.l) / ......... 

/ 

/ - -- - Ali<n ~(2Ll.2) r - ./ 

---- -----/ 

1991 1992 1993 1994 1995 1996 1997 1998 1999 lOOO 2001 2002 

Source: U.S. Sentencing Commission, 1934199:1 AD FPSSIS Data1iles, 1991-2002 U SSC Monitoring D atafiles. 
 Bailey v. U. S., 516 U.S. 137 (1995). 86

 Pub. L. No. 105–386, 112 Stat. 3469 (Nov. 13, 1998). 87

65

Length of Time Served. As discussed above, the original immigration guidelines did not

deviate substantially from past practice. The amount of time served actually decreased slightly with

guidelines implementation. However, subsequent revisions to the guidelines significantly increased

penalty levels. As shown in Figure 2.13, the average length oftime served by immigration offenders

nearly tripled between 1990 and 2001.

Figure 2.14 displays trends in the

average length of time served for alien

smuggling and illegal entry separately. Both

guidelines have experienced considerable

increases in the amount of time served. Illegal

entry offenders experienced the first wave of

sentence increases in the early 1990s as the

guideline amendments enacted in those years became effective. Alien smuggling experienced a steep

increase in 1998, as the amendment promulgated pursuant to the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 took effect. 

4. Firearm trafficking and possession

Guns in violent and drug trafficking offenses. The federal criminal code contains a variety

of provisions proscribing the possession, use, and trafficking of firearms. In the last two decades,

congressional attention has focused on 18 U.S.C.§ 924(c), which provides for a mandatory minimum

penalty for offenders who use, carry, or possess a firearm “during and in relation to” a drug

trafficking or violent crime. The predecessor to this provision was enacted by Congress in 1968 and

originally required a one- to ten-year mandatory prison term for using or carrying a firearm during

the commission of a violent felony. In 1984, the statute was amended to require at least five years’

imprisonment, to be served consecutive to the sentence for the underlying offense. In 1986, the

statute’s scope was expanded to include drug trafficking offenses, and additional penalties were

added. Further amendments in 1988, 1990, and 1994 required sentences of twenty years to life

imprisonment for offenders with prior convictions. 

In 1998, in response to a U. S. Supreme Court decision that had narrowly construed the “use”

criteria, the statute’s scope was again expanded to include “possession in furtherance” of the 86

underlying offense. Penalties were again increased for brandishing or discharging a firearm during

a crime, among other things. These sentencing enhancements have been incorporated into the 87

guidelines (Hofer, 2000). In this chapter, the effects of 18 U.S.C. § 924(c) are included in the data

for drug trafficking and violent crimes presented in other sections of this chapter.

The average length of time served by

immigration offenders nearly tripled

between 1990 and 2001.
 18 U.S.C. § 922(g). 

88

 USSG, App. C, Amend. 333 (Nov. 1, 1990). 89

 Id. at 374 (Nov. 1, 1991). 90

 Id. at 522 (Nov. 1, 1995). 91

 Id. at 578 (Nov. 1, 1998). 92

 Id. at 631 (Nov. 1, 2001). 93

66

Firearm trafficking and possession or transfer to prohibited persons. Federal statutes also

define two other broad types of firearm offenses. Federal law regulates transactions in firearms and

imposes record-keeping and other requirements designed to facilitate control of firearm commerce

by the various states. Failure to abide by these federal regulations is a federal crime. In addition,

possession of a firearm by certain classes of persons, such as felons, fugitives, or addicts, is

prohibited. Knowingly transferring weapons to these persons is also prohibited. Congress has been 88

somewhat less active in sentencing for these offenses over the last two decades than it has for drug

trafficking, economic, or sex offenses. But the Commission has chartered several staff working

groups concerning sentencing policy for these issues. The Department of Justice and the Bureau of

Alcohol, Tobacco, and Firearms have also been active, both in collaborating with the Commission

on the development of sentencing policies, and in organizing Task Forces, such as Project

Triggerlock, Project Weed and Seed, and Project Exile, which utilize the federal firearm statutes to

target dangerous offenders. 

The Commission originally based the guidelines for these firearm offenses on its study of

past practices (USSC, 1987). Soon thereafter, however, the Commission undertook several major

revisions of firearms guidelines, which resulted in significant severity increases over historic levels.

 In 1990, the Commission increased the base offense level applicable to some offenses. In 1991, 89

the Commission again increased penalties and reorganized the guidelines by consolidating them into

a single provision, USSG §2K2.1, which was created to handle most firearm trafficking and

possession offenses. The base offense level was linked to the statute of conviction, and 90

enhancements were provided based on the number of firearms trafficked and other aggravating

factors. Several later amendments clarified this basic structure.

In the Violent Crime Control Law Enforcement Act of 1994, Congress created several new

offenses involving the possession or transfer of firearms to juveniles and expanded the list of persons

prohibited from possessing firearms. It also directed the Commission to increase penalties for

offenses involving semiautomatic weapons. The Commission amended USSG §2K2.1 in response

to these directives. The most recent amendments track statutory changes expanding the class of 91

persons prohibited from possessing firearms and further increasing penalties. In 2001, at the 92

suggestion of the Bureau of Alcohol, Tobacco, and Firearms, penalties were increased for trafficking

offenses involving more than 100 weapons. 

93
67

Use of imprisonment and length of time served. Figure 2.15 shows changes in the

percentage of firearm trafficking and possession offenders who receive sentences of imprisonment,

probation, and intermediate sanctions. Fortraffickers, the use of probation has been steadily reduced

to about one-quarter of its preguidelines level, replaced by imprisonment and, to a lesser extent,

intermediate sanctions. For illegal possessors, probation has been replaced almost completely by

imprisonment. 

Figure 2.16 shows changes in the length

of time served. After a period of volatility and

decline in trafficking sentences in the first years

of guideline implementation, when the

guideline was being reconsidered and

redesigned by the Commission, time served

began a steady climb in fiscal year 1992, the

year the Commission’s major revision to USSG §2K2.1 became effective. The subsequent

amendments to the guideline have continued to increase sentence severity. By 2000, prison terms

were about double what they had been in the preguidelines era. The severity increases for possession

offenses were equally dramatic, doubling between 1988 and 1995. 

By 2000, prison terms for firearm

offenders were about double what

they had been in the preguidelines

era.
See e.g., 28 U.S.C. § 994(h)(1)(A) and § 994(j); 18 U.S.C. § 924(c). 94

68

5. Violent Crimes

Unlike the state courts, the federal courts sentence relatively few offenders convicted of

violent crimes. In 2001, murder, manslaughter, assault, kidnaping, robbery, and arson constituted

less than four percent of the total federal criminal docket. Due to the unique nature of federal

jurisdiction over these types of crime, a sizeable proportion of murder, assault, and especially

manslaughter cases involve Native American defendants. The most common federal violent crime

is bank robbery, which has long been of special concern to federal law enforcement.

While not expressly directing a change in federal sentencing practices for violent offenses, the

SRA and numerous other penalty statutes display a special concern with violent crimes. In addition, 94

“the Commission was careful to ensure that average sentences for such [violent] crimes at least

remained at current levels, and it raised them where the Commission was convinced that they were

inadequate” (USSC, 1987, 18-19). For robbery, the Commission found from its study of past practices

that bank robbers and muggers were treated differently. Lacking a principled reason why this should

be, it increased the sentences for personal robbery to make them more proportional to those for bank

robbery while still recognizing the greater seriousness of offenses against financial institutions (USSC,

1987, 18). Formurder and aggravated assault, theCommission felt that past sentences were inadequate

since these crimes generally involved actual, as opposed to threatened, violence (USSC, 1987, 19). 
69

Use of imprisonment. Figure 2.17 and the accompanying thumbnails in the following pages

show that, for most violent offenses, rates of imprisonment have always been high and they have

remained so under the guidelines. Onlymanslaughter, the violent offense for which Native Americans

are most highly represented, contained room for significant growth in incarceration rates. The use of

alternatives to imprisonment for manslaughter cases has been steadily reduced under the guidelines, and

now occurs in less than ten percent of cases. Kidnaping and murder have imprisonment rates between

90 and 100 percent, with arson and assault somewhat lower. The imprisonment rate for bank robbers

climbed from the mid- to the high-90s under the guidelines. 

Length of time served. Figure 2.18 provides a striking example of the importance of examining

time served rather than sentences imposed. Average prison sentences imposed on violent offenders

actually decreased at the time of guideline implementation, but, due to the abolition of parole, the time

served actually increased significantly. The greatest increases are seen for murder, kidnaping, bank

robbery, and arson. The more stable prison term lengths for manslaughter partly reflect the larger

proportion of these offenders who are receiving relatively short prison terms rather than an alternative

sanction.
70

Type d Sertence 1!1'1losed for Violent Crimes 

Msder Man; la..ghter 

~ --v ,.. ..... tt.a, ..... _ / ~t.-7 .. ./" 

IJ -~ .. -~ .. L.-J:W•· w•-.. 

, -"" .... -... -· . - . -. - .. ~ . · . . . . •:.- : ·.:. .. ·· .. , . . 

FISCal ~r FISCal 'rear 

14 dnapp irVHostage .Assault 

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Source: U.S. Sentencing Commission.19841"'0AO FPSSIS Datafiles, 1991·2002 USSC Monitoring Data1iles. 
 Pub. L. No. 104–71, 109 Stat. 774 (Dec. 23, 1995). 95

 USSG, App. C, Amends. 537 & 538 (Nov. 1, 1996). 96

 Pub. L. No. 104–208, 110 Stat. 3009 (Sept. 30, 1996). See generally 28 U.S.C. § 97

2241(c).

 Pub. L. No. 105–314, Title V., §§ 501 to 507, 112 Stat. 2974 (Oct. 30, 1998). 98

 USSG, App. C, Amend. 592 (Nov. 1, 2000). 99

72

Direct congressional control over

sentencing policy for sex offenses

has increased throughout the

guidelines era.

6. Sexual Abuse, Exploitation, and Transportation for Illegal Sexual Activities

Frequent congressional involvement. Sexual offenses were among the first crimes to test the

limits of federal criminal jurisdiction early in the twentieth century (see the “White Slave Traffic Act”

of 1910, popularly known as “the Mann Act”), and Congress has shown a continuing interest in the

federal prosecution of sex crimes. In recent decades, concern has focused on sex offenses involving

minors. As shown in Appendix B, Congress has legislated frequently on this issue and at times in rapid

succession during the guidelines era. Much like policymaking in the area of drug trafficking, Congress

has used a mix of mandatory minimum penalty increases and directives to the Commission to change

sentencing policy for sex offenses. In the PROTECT Act of 2003, Congress, for the first time since

the inception of the guidelines, directly amended the Guidelines Manual and developed unique

limitations on downward departures from the guidelines in sex cases. 

A brief history of just the major sex offense

sentencing legislation from the past ten years gives

a sense of the frequency and complexity of

congressional actions. The Sex Crimes Against

Children Prevention Act of 1995 directed the

Commission to increase guideline offense levels for

crimes involving child pornography, prostitution,

and the use of a computer. The Commission amended the guidelines effective November 1, 1996, and 95

also recommended several statutory changes for congressional consideration designed to improve

guidelines operation. That same year, however, the Amber Hagerman Child Protection Act and the 96

Child Pornography Act of 1996, while adopting some Commission recommendations, also added new

mandatory minimum penalties, including “two-strikes-you’re-out” life imprisonment for a second

conviction of coercive sexual abuse of a child under the age of 16 years. 

97

In 1998, Congress again directed the Commission to raise penalties for a wide variety of sex

offenses, including those involving travel or transportation, the use of a computer, or misrepresentation

of the perpetrator’s identity. Penalties were directed to be increased for offenders who engaged in a 98

“pattern of activity involving sexual abuse or exploitation of a minor.” The Commission responded

with a comprehensive revision of the sex offense guidelines, effective November 1, 2000, including 99

significant across-the-board penalty increases and creation of a new, severe guideline, section 4B1.5,
Id. at 615 (Nov. 1, 2001). 100

 Pub. L. No. 108–21, 117 Stat. 650 (April 30, 2003). 101

 USSG, App. C, Amend. 651 (Oct. 27, 2003).

102

73

for “Repeat and Dangerous Sex Offenders.” Offenders convicted of serious sex offenses with 100

previous convictions for sex offenses were made subject to severe penalties, typically requiring twenty

or more years in prison. Offenders who engaged in a “pattern of activity” were also subject to severe

penalties, regardless of whether the previous activity had resulted in a conviction. “Pattern of activity”

was defined as two separate occasions of sexual activity with at least two separate minors. This

definition was crafted to target pedophiles who seek out multiple minor victims, rather than

“opportunistic” offenders who engage in sexual activity with the same minor on more than one

occasion. These “opportunistic” offenses were found to be typical, in the federal system, of offenses

involving Native Americans. 

In the PROTECT Act of 2003 more mandatory minimum penalties were added and existing

statutory minimums and maximums were again increased. The “two-strikes-you’re-out” provisions

were expanded to include most federal sex offenses against any person under 18 years of age. The

definition of “pattern of activity” was revised to include engaging in sexual activity with multiple

minors or with any single minor on more than one occasion. In addition, Congress dramatically

restricted the permitted grounds for departure below the guideline range for sex offenses. The 101

Commission implemented provisions of this Act in 2003.102

The frequent mandatory minimum legislation and specific directives to the Commission to

amend the guidelines make it difficult to gauge the effectiveness of any particular policy change, or to

disentangle the influences of the Commission from those of Congress. The guideline amendments

effective on November 1, 2000, will have affected only some cases in the final year of data in the

following graphs. None of the changes in the PROTECT Act will be apparent in these data. 

Growth of the Internet. Part of the explanation for the flurry of sex offense legislation in the

last fifteen years has been the rapid growth of the Internet, which occurred almost simultaneously with

implementation of the guidelines. The Internet has been used to facilitate distribution of illegal

pornography and for communication among sex offenders and their potential victims. Congress passed

the Child Protection and Obscenity Enforcement Act in 1988 to help control misuse of the new

technology, and subsequent legislation has focused on strengthening law enforcement and increasing

penalties for computer-distributed and computer-generated images. 

A special Task Force of the FBI, “Innocent Images,” was developed to target pedophiles by

using computer-based investigations. Prosecutions resulting from these investigations are often brought

under the provisions of Chapter 117 of Title 18, United States Code (the modern revision of the Mann

Act), which prohibit transporting persons or traveling interstate to engage in prohibited sexual activities.

Recently amended provisions of Chapter 117 prohibit use of the mails or any facility of interstate
74

commerce to persuade or entice a minor to engage in prohibited sexual conduct, or to transmit

information about a minor that might encourage any person to engage the minor in prohibited sexual

activity. 

Sexual exploitation and sexual abuse. Other sexual exploitation offenses are prosecuted under

Chapter 110 of Title 18, United States Code. Sexual exploitation offenses involve the production of

child pornography or the exploitation of children for the purposes of prostitution or pornography

production, as opposed to sexual assault offenses, which involve sexual contact between the offender

and victim. Trafficking and possession of child pornography by any means, including but not limited

to the Internet, also are prosecuted under these provisions. 

A significant number of additional offenses come to the federal courts through federal

jurisdiction over Native American lands, military bases, and federal parks. These are usually sexual

abuse cases, involving what are commonly called rape, statutory rape, and molestation. These are

prosecuted under Chapter 109A of Title 18 United States Code. As a result of this special federal

jurisdiction, the majority of defendants sentenced for these crimes in the federal courts are Native

Americans, with the vast majority in the districts of New Mexico, Arizona, and South Dakota. In 2001,

63 percent of the offenders subject to these sentences were Native Americans.

In practice, some cases might be prosecuted under a number of alternative statutory provisions.

The guidelines contain cross-references so that, for example, a conviction for traveling to engage in

prohibited sexual conduct with a minor will be sentenced under the guideline for sexual abuse, or

attempted sexual abuse, if that guideline better captures the defendant’s real offense behavior. When

describing historic trends extending to preguidelines practice, however, cases must be grouped

according to their statutes of conviction. 

Use of imprisonment and prison time served. The thumbnail graphs, Figures 2.19 and 2.20,

show the percentage of sexual abuse offenders and sexual exploitation offenders who receive each type

of sentence as well as changes in the sentences imposed and time actually served. The percentage of

offenders receiving imprisonment increased for both types of offenders, and dramatically so for sexual

exploitation offenders who are subject to the recent crackdowns on child pornography. Fewer than ten

percent of either type of offender receives probation or intermediate sanctions. 

Sentences imposed on sexual abuse offenders show the same decreases observed for violent

offenders, but time actually served has remained fairly constant throughout the period of study. The

average length of time served for sexual exploitation, however, has increased by twenty months from

its preguidelines level.
75

E. Certainty, Severity, and the Scale of Imprisonment

1. Policymaking in the Guidelines Era

A mix of independent and joint actions.The preceding surveyof sentencing trends for different

offenses reveals a mixed pattern of policymaking by both Congress and the Sentencing Commission.

Continuity with past practices, or changes from them, often can be traced to particular decisions by the

Commission when it drafted or amended the guidelines. The Commission chose to keep prison terms

for many types of crimes consistent with historic levels, as revealed by its study of past practices. But

for several offenses, notably firearm and certain violent offenses, the Commission chose to increase

penalties. Among economic crimes, the Commission reduced the use of simple probation for “white
76

collar” offenses while lowering sentences for some other property crimes in order to eliminate disparity

that it detected in past practice. For still other offenses, particularly alien smuggling and illegal entry,

separate actions by both the Commission and Congress resulted in significant increases in sentence

severity at repeated points over the past fifteen years. 

For several important offenses, however, it is impossible to disentangle the effects of

Commission actions from those of Congress. Mandatory minimum penalties directly control the

sentence in many cases, but their greatest influence isindirect. Mandatoryminimum statutes highlight

certain case characteristics, such as drug quantity, and establish offense severity levels that the

Commission incorporates within the guidelines structure. In addition, as shown by congressional

directives to the Commission listed in Appendix B, Congress has influenced policymaking through a

variety of other methods, including changes to statutory maximums accompanied by instructions to the

Commission to amend the guidelines, general “sense of the Congress” resolutions, and specific

directives to amend the guidelines in particular ways. The Commission has invariably followed

congressional directives and has taken care to ensure that all its actions conform to law.

Sentencing and prison populations. The changes in sentencing policy occurring since the mid1980s—both the increasing proportion of offenders receiving prison time and the average length of time

served—have been a dominant factor contributing to the growth in the federal prison populations

depicted in Figure 2.1. Given that drug trafficking constitutes the largest offense group sentenced in

the federal courts, the two-and-a-half time increase in their average prison term has been the single

sentencing policy change having the greatest impact on prison populations. Increases for other crimes,

such as firearms, also have been significant (Blumstein & Beck, 1999). 

Sentencing policy is not the only factor contributing to prison population increases, however.

Sheer growth in the federal criminal docket has also been a major influence. The number of cases

referred to United States Attorneys for prosecution has grown considerably during the guidelines era,

reflecting increased resources appropriated for federal law enforcement (BJS, 2001). No decrease in

federal prosecution rate or increase in declination rate, while varying somewhat from crime-to-crime

and year-to-year, has offset the growth in the number of cases referred for prosecution. The result is

dramatic growth in the number of offenders convicted and sentenced in federal court. For example, the

number of drug trafficking offenders sentenced in federal court increased from just under 5,000 cases

in 1984 to nearly 25,000 cases in fiscal year 2001.

This growth in the federal criminal docket is not a reflection of rising crime rates; indeed,

throughout the 1990s, the national crime rate decreased, as measured both by the Uniform Crime

Reports and the National Victimization Survey. Similarly, the number of daily and monthly users of

most types of drugs, and by inference the number of drug dealers, has declined throughout the

guidelines era (BJS, 2001). The federal criminal justice system simply is handling an increasing

proportion of a decreasing number of criminals in the United States and imposing increasingly severe

penalties upon them.
 28 U.S.C. § 994(g).

103

77

2. Sentencing Guidelines: A New Instrument of Policy Control

As described at the beginning of this chapter, studies of the “scale of imprisonment” have

questioned whether imprisonment rates vary as a result of conscious policymaking or from cultural and

historical forces beyond human control (Zimring & Hawkins, 1991). The different trends for different

offense types reviewed in the previous section certainly suggest that federal prison population growth

in the guidelines era has resulted in significant part from deliberate policy choices made by Congress

and the Sentencing Commission. The growth could have been less, or more, but the choices that were

made substantially increased the certainty and severity of punishment for many types of crimes, and for

some crimes quite substantially.

While it is often impossible to disentangle the influences of Congress and the Commission on

sentencing practices, it is important to note that the data demonstrate that the guidelines can control and

change sentencing practices even in areas where there are no mandatory minimum penalty statutes.

Because they take into account many more factors than the statutes, the guidelines create the potential

for more precisely targeted policymaking than is possible through mandatory minimum penalty statutes.

Sentencing with explicit and detailed rules, instead of the largely unguided discretion of the

preguidelines era, has created something that did not exist before: a precise legal instrument for policy

control. One may agree or disagree with the policies the rules represent, but the creation of rules itself

brings greater transparency to sentencing. This allows all interested parties—whether attorneys

negotiating a plea agreement in a particular case, or officials managing the prison population—to better

understand and predict federal sentencing practices (Goldsmith & Gibson, 1998). 

To date, the guidelines have been used, often pursuant to explicit congressional directives, to

increase the certainty and severity of punishment for most types of crime. They could, however, be

used to advance different goals, that also are mentioned in the SRA: “For example, the guidelines could

be structured and managed “to minimize the likelihood that the federal prison population will exceed

the capacity of the federal prisons, as determined by the Commission.” Some commentators have 103

argued that the Commission neglected this goal (Parent, 1992), while others argue that this “capacity

limitation” was given a low priority in the SRA as finally enacted (Stith & Koh, 1993). To date,

Congress has proven willing to appropriate the funds needed to expand the capacity of the federal

prisons to the levels needed to accommodate expanded federal prosecution and increased sentence

severity. 

If policymakers choose to limit prison growth in the future, however, the guidelines provide a

precise instrument for controlling federal sentencing policy. Controlling prison populations and

correctional budgets, while protecting the public by reserving prison space for the most dangerous

offenders, has been one of the noteworthy successes of sentencing reform and sentencing guidelines
78

in the states (Wright, 2002). If controlling the scale of federal imprisonment becomes a priority in the

future, the guidelines are in place to shape sentencing practices to the evolving needs of the system.
SENATE REPORT, supra note 1. 104

 28 U.S.C. § 991(b)(1)(B).

105

 28 U.S.C. § 994(d). 106

79

Chapter Three: Presentencing, Inter-Judge,

and Regional Disparity

A. Introduction

Eliminating unwarranted sentencing disparity was the primary goal of the Sentencing Reform

Act [SRA]. The legislative history of the SRA, reviewed in Chapter One, devotes more space

documenting the “shameful disparity” constituting a “major flaw in the existing criminal justice

system” than on any other aspect of preguidelines sentencing practices. The SRA directs the 104

United States SentencingCommission to establish policies and practices that will “provide certainty

and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities

among defendants with similar records who have been found guilty of similar criminal conduct while

maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating

or aggravating factors not taken into account in the establishment of general sentencing practices.”105

The Commission is also directed to “assure that the guidelines and policy statements are entirely

neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.” 

106

The following two chapters review the empirical evidence concerning whether these central

goals of sentencing reform have been achieved. This chapter focuses on inter-judge and regional

differences and the impact of presentencing stages on sentencing uniformity. The next chapter

investigates potential sources of racial, ethnic, and gender disparity. 

1. Definitions of Disparity 

Form and substance. While there is widespread agreement that unwarranted disparity should

be eliminated, there is less agreement on how to define it. Similar treatment for similar offenders

and different treatment for different offenders is the hallmark of fair sentencing. But this formal

definition is incomplete because it does not tell us how to classify offenders as similar or different

(Cole, 1997). We need to identifywhich characteristics of offenses and offenders are relevant to our

sentencing goals to know how to classify offenders. 

In the federal system, sentencing goals are supplied by the statutory purposes of sentencing

found at 18 U.S.C. § 3553(a)(2), which were prioritized by the federal sentencing guidelines (Hofer
80

& Allenbaugh, 2003). The guidelines place primary importance on proportionate punishment—

fitting the severity of punishment to the seriousness of the offense. Offense characteristics bearing

on the harms caused by the offense and the offender’s culpability for those harms are especially

relevant to assessing offense seriousness. The need to protect the public from additional crimes by

the offender makes the offender’s risk of recidivism, as measured by their criminal history, also

highly relevant. Unwarranted disparity is eliminated when sentencing decisions are based only on

offense and offender characteristics related to the seriousness of the offense, the offender’s risk of

recidivism, or some other legitimate purpose of sentencing.

Common sources of unwarranted disparity. In the debates leading to passage of the SRA

Congress identified differences among judges in sentencing philosophy and, to a lesser extent,

differences among regions in sentencing practices as common sources of unwarranted disparity.

Research evidence demonstrated that philosophical differences among judges affected the sentences

they imposed, and that sentences varied significantly depending on the judge to whom an offender

was assigned. The Federal Judicial Center’s Second Circuit Study—cited in the legislative history

of the SRA—found dramatic differences among judges in the sentences they imposed on an identical

set of hypothetical offenders (Eldridge & Partridge, 1974). Judges were sent presentence reports

based largely on 20 actual federal cases representing a range of typical offenses and were asked what

sentences they would impose. Differences of several years were common; in one case more than 17

years separated the most severe from the least severe sentence. The data showed that handfuls of

judges were consistentlymore severe or more lenient than their colleagues. More important, judges

varied in their approaches to particular crime types. Some judges treated drug traffickers relatively

leniently while sentencing white collar offenders more harshly; other judges displayed the reverse

pattern. Forst and Wellford (1981) also found significant inter-judge disparity and analyzed the role

played by each judges’ sentencing philosophy in greater detail. Using a sample of 264 federal judges

sentencing a different series of hypothetical cases, they found that judges who were oriented towards

utilitarian goals(incapacitation and deterrence) gave sentences at least ten months longer on average

than judges who emphasized other goals.

In addition to differences in philosophy among individual judges, several studies of

preguidelines sentencing found geographical variations in sentencing patterns, suggesting that

different political climates or court cultures can affect sentences. Research sponsored by the

Department of Justice in the 1970s showed that judges placed differing importance on various

factors depending on the region in which they sat (Sutton, 1978; Rhodes & Conly, 1981). Regional

differences arise not just from the exercise of judicial discretion, but also from differences in policies

among U. S. attorneys and in the practices of individual prosecutors. 

2. Increased Transparency of the Sentencing Decision 

Sentencing may now be the most transparent part of the criminal justice system. Not only

is sentencing done publically in open court, with factual findings and determinations of law made

on the record, but a detailed database of offense and offender characteristics and the judge’s

decisions are compiled by the Sentencing Commission. With the exception of confidential
 Ashcroft Charging Memo, supra note 24, September 22, 2003, at 2. 107

81

information contained in the presentence report (such as an offender’s medical history) most of this

information has been made available to researchers and to the public. 

We know more about the federal sentencing process today than ever before. One measure

of this growth in understanding is what researchers call the “percentage of variance accounted for”

by statistical models of the sentencing decision. Variance is a statistical term for the total of all

variations in a group of sentences from the average sentence. Prior to the guidelines, researchers

typically could account for 30 to 40 percent of the variance in sentences. Today that percentage has

risen to over 80 percent, primarily because the factors that determine sentences are in large part

identified in the guidelines themselves and in the data the Commission collects. Sentencing is the

most-studied stage of the criminal justice process, and investigations of sentencing disparity are the

most common subject of empirical inquiry in part because of this transparency. 

B. Disparity Arising at Presentencing Stages

The SRA focused primarily on sentencing, but Congress and the Commission recognized

from the beginning that sentencing could not be considered in isolation. Decisions regarding how

investigations should be conducted, what charges to decline or dismiss, what plea agreements to

reach, and other decisions made prior to conviction and sentencing can all affect the fairness and

uniformity of sentencing. 

As described in Chapter One, the SRA directed the Commission to develop several

mechanisms to monitor, and if necessary, control some of the effects of presentencing stages. The

Department of Justice and the Judicial Conference of the United States also developed policies and

procedures designed to ensure that the guidelines were not undermined by charging or plea

bargaining variations. In 2003, the Department reaffirmed its belief that “[j]ust as the sentence a

defendant receives should not depend upon which judge presides over the case, so too the charges

a defendant faces should not depend upon the particular prosecutor assigned to handle the case.”107

The detailed federal sentencing guidelines take into account a large number of aggravating

and mitigating factors in order to precisely tailor the severity of punishment to the seriousness of

the crime and the dangerousness of the offender. Presentencing decisions can result in punishment

that is either more severe or more lenient than the guideline sentence that would otherwise apply to

the case. Uneven charging or plea agreements that fail to fully account for offenders’ criminal

conduct can result in sentences that are both disproportionate to the seriousness of the crime and

disparate among offenders who engaged in similar conduct. As reviewed below, several mechanisms

leading to this type of disproportionality and disparity have been identified by researchers and by

participants in the sentencing process.
82

Disparity arising at presentencing stages has been described as often occurring “below the

radar screen” (Saris, 1997). Plea and sentencing procedures require that plea agreements be

disclosed to the court, but not all the reasons for presentencing decisions are necessarily stated on

the record, and fewer public documents and statistical data exist to investigate the reasons for, and

effects on sentences of, decisions to decline or bring charges, or to stipulate to particular sentencing

facts or guideline provisions. Some commentators have called circumvention of the guidelines that

would properly apply to a case a form of “hidden departure” (Wolf & Broderick, 1991; Schulhofer

& Nagel, 1997; Hofer et al., 1999; Berman, 2000). Avoiding potentially applicable penalty statutes

or circumventing applicable guidelines may result in sentences, in some cases, that are better suited

to achieve the purposes of sentencing than the sentence that would result from strict adherence to

every applicable law. But unlike judicial departures—which require reasons stated on the record and

reviewable on appeal—presentencing decisions may open a gulf between sentencing “by the book”

and sentencing “by the bargain,” which can undo the transparency and uniformity intended by the

SRA (Freed, 1992). 

The extent to which concerns about the effects of presentencing decisions have proven valid

is an important issue for federal sentencing today and in the years ahead. The data available to assess

these effects are not as detailed and complete as data on the sentencing decision itself. The data that

are available, however, suggest that presentencing stages remain important in achieving sentence

uniformity, and that some of the components of guidelines implementation that were designed to

ensure uniformity have proven inadequate to the task or have not worked as intended.

1. Presentencing Stages That Can Affect Sentencing Uniformity

Commentators have identified several stages and decision points prior to sentencing that can

affect the uniformity of sentencing decisions. 

Investigation techniques. Under the guidelines, sentences are based on detailed facts

concerning offenders’ criminal conduct. The links between sentences and, for example, the quantity

of drugs or money involved in the offense, the presence of a gun, or the location of the crime, are

widely known to prosecutors and police. This enables them to predict the likely sentence based on

the facts developed and brought forward at sentencing. Berlin (1993) argues that manipulation of

defendant’s sentencing exposure during the investigation phase is a significant source of continuing

disparity in the federal system. For example, rather than arrest a drug seller when his crime first

becomes known, police could choose to make additional purchases until the quantity of drugs

involved reaches the amount needed to trigger the sentence the police believe appropriate (Zlotnick,

2004). Judges have recognized a ground for departure from the guidelines for some types of police

conduct— “sentencing entrapment”—when, for example, police induce a defendant to cook powder

cocaine into crack cocaine in order to qualify the defendant for a harsher penalty (Fisher, 1996). 

Charging decisions. Decisions about which charges to decline or bring against a defendant

have binding consequences for the final sentence. The guidelines were designed to minimize the

effects of uneven charging decisions in many circumstances, as described in Chapter One. But in
 USSG, App. C, Amend. 634 (Nov. 1, 2001). 108

 Fed. R. Crim. P. 11(c)(1)(B) and (C). 109

83

some cases the statutory minimum and maximum penalties provided for the counts of conviction

constrain the judge’s discretion and trump guideline range that would otherwise apply to the

offenders’ conduct (Nagel & Schulhofer, 1989, 1992). 

Mandatory minimum statutory penalties sometimes require a sentence above the otherwise

applicable guideline range. For example, many offenders who are convicted of trafficking drug

amounts just above the five- and ten-year thresholds cannot receive the full benefit of the guidelines’

adjustments for acceptance of responsibility or mitigating role in the offense, because they do not

qualify for a waiver of the mandatory minimum penalty under USSG §5K1.1 or the “safety valve.”

Charging an offender with possession of a firearm in furtherance of a drug trafficking crime under

18 U.S.C. § 924(c) usually, although not always, results in a sentence above the guideline range that

would apply if the drug trafficking guideline’s enhancement for possession of a firearm were applied

instead (Hofer, 2000). Charging several counts of 18 U.S.C. § 924(c) in the same indictment—socalled “count stacking”—can result in sentences dramatically higher than the otherwise applicable

guideline range, because mandatory prison terms are increased from at least five to at least twentyfive years for each subsequent conviction, even if sentenced at the same time, and must be imposed

to run consecutively (Etienne, 2003). Including a money laundering count in an indictment once

substantiallyincreased the guideline range for conduct that might otherwise have been appropriately

sentenced under a different guideline (USSC, 1997). (A 2001 amendment to the guidelines reduced,

but did not eliminate, this effect of charging decisions.)108

In other cases, use of charges that understate the true offense conduct—for example, charging

drug possession or use of a communications facility instead of drug trafficking—caps the statutory

sentencing range below the level required by the guidelines for offenders’ real offense conduct

(USSC, 1995). The Commission has more than quintupled the number of cross-references to the

guidelines through the years based on research findings that some offenders guilty of serious crimes,

such as aggravated sexual abuse, were being charged and sentenced for less serious crimes like

statutory rape or abusive sexual contact (USSC, 1992). Despite these attempts to undo the effects

of undercharging, some evidence suggests that cross references are viewed as optional by some

prosecutors and courts and are not always used as intended (USSC, 1996, 1997). 

Plea bargaining. Agreements not to charge or to dismiss charges are often made as part of

plea negotiations between the parties. Plea agreements can be reached before indictment or between

the time of indictment and sentencing. Plea agreements also may contain stipulations that a

particular sentencing factor or provision of the sentencing guidelines does or does not apply to the

case, or recommendations that a specific sentence is appropriate. These stipulations and 109

recommendations may be either non-binding or binding. Courts may reject plea agreements, but

once an agreement with a binding recommendation is accepted, the court is obligated to sentence in

accordance with the agreement. If an agreement is rejected, the court must personally advise the
 Fed. R. Crim. P. 11(c)(5). 110

84

defendant that the sentence may be less favorable than the agreed-upon sentence and give the

defendant the opportunity to withdraw his or her guilty plea.110

Early in the guidelines era, Commission-sponsored research suggested that plea bargaining

was leading to circumvention of the guidelines in a significant number of cases (Schulhofer & Nagel,

1989, 1992, 1997). In addition to charge bargaining, researchers reported that new types of plea

agreements had developed under the guidelines, including fact bargaining and date bargaining

(Alschuler & Schulhofer, 1989). Fact bargains include agreements on sentence-relevant

considerations, such as the amount of drugs involved in an offense or the presence of a firearm. Date

bargaining occurs when the parties negotiate over when an offense occurred, in order to use a

particular edition of the Guidelines Manual that is more favorable to a defendant than a later edition.

While charging and plea bargaining are officially regulated by nationwide DOJ policies,

researchers reported that in practice these policies were less determinative of prosecutorial conduct

than internal U.S. Attorney’s office policies. Judicial scrutiny of plea agreements, supported by

probation officers’ independent presentence investigations, were often inadequate to control plea

bargaining because both judges and probation officers were heavily dependent on the information

provided by the prosecutor in a given case. In addition, resource limitations and a reluctance to

reject agreements, for a variety of reasons discussed further below, made judicial rejection of plea

agreements that undermined the guidelines relatively rare. 

The presentence investigation. Probation officers are responsible for conducting the

presentence investigation and informing the court in the presentence report of all the facts relevant

to guidelines application. The probation officers’ review ofthe offense conduct and explicit analysis

of the impact of the plea agreement on the sentence helpsinform judges’ review of plea agreements.

This investigative function that helps ensure that the guidelines are faithfully applied has led

probation officers to be called the “guardians of the guidelines” (Bunzel, 1995).

Surveys of probation officers have consistently found variations in how offense conduct is

investigated (FJC, 1990; USSC, 1991; Bowman, 1996). In some districts, probation officers conduct

independent investigations, even interviewing prosecution witnesses and examining taped

conversations or laboratory reports. In other districts, probation officers rely on the prosecution’s

version of the offense, even incorporating the government’s written version of the offense directly

into the “Offense Conduct” section of the presentence report. The amount of relevant conduct

outside the counts of conviction, or potential grounds for upward or downward departure, uncovered

by the probation officer depends on the intensity of the presentence investigation (Zlotnick, 2004).

If these investigations are waived or abbreviated, relevant differences among offenders may go

undiscovered and dissimilar offenders may be treated similarly.

Filings ofmotions and notices. Statutory provisions give prosecutors sole discretion to seek

certain increases or reductions of sentences. For example, 21 U.S.C. § 841 provides lengthier
 USSG App. C, Amends. 649 (April 30, 2003) and 651 (October 27, 2003); Pub. L. No. 111

108-21, §§ 401(g), 401(m)(2)(B), 117 Stat. 650 (April 30, 2003).

85

mandatory minimum prison terms for offenders who commit certain drug trafficking offenses

subsequent to a prior conviction for a drug felony in either state or federal court. To obtain the

increased penalties, 21 U.S.C. § 851 provides that prosecutors must file notice of their intention to

seek the enhancement prior to the sentencing hearing. Similarly, departures from the guidelines for

a defendant’s substantial assistance in the prosecution of other persons under USSG §5K1.1, 18

U.S.C. § 3553(e) and Federal Rules of Criminal Procedure, Rule 35(b) may be granted only upon

motion of the government. (These motions are the only means by which a mandatory minimum

penalty can be waived, other than the “safety-valve” exception at 18 U.S.C. § 3553(f) for certain

first-time nonviolent drug offenders.) More recently, the PROTECT Act gave prosecutors sole

authority to move for an additional reduction of one offense level for offenders who accept

responsibility for their crime in a timely manner, thereby saving the government the cost of preparing

for trial—a decision that had previously been left to the court. In addition, the departure of up to four

levels below the otherwise applicable offense level authorized by the PROTECT Act for offenders

who participate in an authorized early disposition program may be granted only upon motion of the

prosecutor.111

 

2. Surveys Suggest Sentencing Disparity Results from Presentencing Stages 

Preliminary evidence suggesting that sentencing disparity results from presentencing

decisions comes from surveys of court practitioners. Several times in the life of the guidelines,

researchers have asked practitioners to complete detailed questionnaires on the practical operation

of the sentencing guidelines. While the results of these surveys are not strictly comparable due to

differences in the wording of questions, the surveys reveal the perceptions and concerns of court

practitioners and how those concerns have evolved over the guidelines era.

The earliest warning that charge and sentence bargaining were persisting into the guidelines

era came from a survey of judges in one circuit (Alschuler & Schulhofer, 1989). Judges reported that

the frequency of charge and sentence bargaining was roughly the same during the guidelines era as

before, and that new forms of plea bargains were being developed. Just over two years later, as part

of its Four-Year Evaluation, the Commission conducted its own survey in which judges were asked

the effects of presentencing bargaining on sentencing disparity (USSC, 1991). However, the

majority of judges reported that pre-indictment or post-indictment plea agreements were a source

of unwarranted disparity in only some or a few cases. Only a minority of judges supported additional

regulation of plea agreements beyond the policy statements contained in Chapter Six of the

Guidelines Manual. Many other members of the court community, however, including probation

officers and defense attorneys, identified presentencing decisions as a source of unwarranted

sentencing disparity.

Two more surveys of court practitioners were conducted in the mid-1990s. The

Commission’s Probation Officers Advisory Group conducted a nationwide survey of federal
86

probation offices and received responses from eighty-five districts (Bowman, 1996). Although not

without methodological limitations (Berman, 1996), the survey reported some troubling findings.

Just over half of the districts reported that “when guideline calculations are set forth in a plea

agreement, they are supported by offense facts that accurately and completely reflect all aspects of

the case.” But 43 percent of the districts reported that this was true just half the time or less.

Probation officers reported preparing presentence reports that described the real offense conduct in

almost all cases, but officers relied to a great extent on information supplied by prosecutors. In some

districts and cases, respondents indicated that prosecutors tried to limit or manipulate information

used in applying the guidelines. In a significant number of districts, probation officers reported that

the court would usually or nearly always defer to the plea agreement when it conflicted with

information in the presentence report. 

The Federal Judicial Center conducted a survey of chief probation officers as well as Article

III judges in 1996. The findings showed that “respondents believe much of the discretion that

resided with judges before the guidelines has been shifted to prosecutors” (FJC, 1997, p. 6). About

three-quarters of district judges and over half of chief probation officers reported that prosecutors

had more influence on the final sentence than did judges. The vast majority of respondents reported

that plea agreements in their district contained stipulated facts. More than a quarter of the judges

reported that plea stipulations understated the offense conduct somewhat frequently or very

frequently, while another 12 percent said they did so about half the time. Judges reported that they

did sometimes “go behind” the plea agreements to examine underlying conduct, but they reported

doing so “infrequently.” In contrast to the 1991 survey, 73 percent of judges felt that plea

agreements were a hidden source of unwarranted disparity. 

3. Field Studies Suggest Sentencing Disparity Results from 

Presentencing Stages

More evidence that disparity arises at presentencing stages comes from field studies

conducted in several federal districts. This research suggests that different districts have evolved

different “adaptations” to the guidelines system and to caseload pressures and other local conditions

(Braniff, 1993; Bersin & Feigin, 1998). These various adaptations may be more or less formalized

and regularized within a given district, and may be developed byU.S. Attorneys in each district with

or without coordination with local judges and probation officers. The various types of “fast-track”

programs that were developed in several districts beginning in the late 1990s are an example of a

relatively formalized adaptation. The provisions of the PROTECT Act and recent initiatives of the

Department dealing with early disposition programs are an attempt to centralize and regulate these

mechanisms (DOJ, 2003). 

Some districts control their workload with strict intake and charge declination policies,

declining to prosecute, for example, marijuana cases that involve less than a ton of drugs—an

amount that would be a major federal case in another district (Gleeson, 2003). Still other districts

utilize post-indictment charge bargaining, fact bargaining, or other plea agreements to move their

cases and obtain defendant cooperation, either as part of a systematic program or on a more ad hoc
87

basis. One district may employ liberal use of section 5K1.1 motions and departures, while a

neighboring district achieves a similar overall departure rate through use of departures for mitigating

circumstances other than substantial assistance (Farabee, 1998). Comparing data from four different

federal courts, Storto (2002) suggested that different paths—for example, systematic charge

bargaining in immigration cases in one district and departure bargaining in another—can sometimes

lead to similar results. 

One of the earliest and most comprehensive series of field studies was the work of Nagel and

Schulhofer mentioned above (Schulhofer & Nagel, 1989, 1992, 1997). They concluded that

circumvention of the guideline sentence was common, but that such circumvention was not

necessarily “wrong” but “a covert vehicle for downward departure.” These hidden departures were

motivated by a variety of reasons, including efforts to save time and resources and to provide

incentives for defendant cooperation in addition to the incentives already included within the

guidelines. In addition, several areas where the guidelines lacked flexibility were identified, which

caused prosecutors, defense attorneys, and judges to search for ways to circumvent the guidelines’

strict requirements. These areas included an overemphasis on harm- and quantity-driven offense

characteristics, a relative neglect of offender characteristics, and overall severity levels required by

statutory minimum penalties and the guidelines pegged to them that were regarded by a significant

number of judges and prosecutors as unnecessarily harsh in some cases, particularly for drug

trafficking offenses. The authors concluded that prosecutorial discretion “if unchecked, has the

potential to recreate the very disparities that the Sentencing Reform Act was intended to alleviate”

and they warned that the system for regulating plea bargaining—relying on 1) probation officers’

investigations, 2) judicial review of plea agreements, and 3) Department of Justice charging and plea

policies—might prove ineffectual. 

More recently, Marks (2002) studied the effects of prosecutorial decisions in one district

court, focusing on these same three mechanisms designed to help control disparity, as well as the

relevant conduct rule. Interviews revealed that key participants in the sentencing process were

generally unfamiliar with the contents of the policy statements in Chapter Six governing judicial

review of plea agreements. “Informational asymmetry” between the government and the court made

it unrealistic for probation officer investigation to fully inform the court about offenders’ real offense

conduct. Implementation of the relevant conduct provision was further hindered by ambiguity in the

language of the rule, discomfort with the role of law enforcement in establishing relevant conduct,

and discomfort with the severity of sentences that often result from inclusion of all relevant conduct

in guidelines determinations. Department of Justice policies then in place were also viewed as

ineffective at achieving charging and plea bargaining uniformity. 

A former prosecutor and current federal judge has argued that regional disparities in

prosecutorial conduct are endemic and may be impossible to eliminate (Gleeson, 2003). Using drug

couriers as an example, the judge demonstrated how two similar couriers arriving into the country

in two different districts are subject to penalties over fifty percent higher in one than the other, due

to the existence in one district of an agreed-upon program of maximum reductions for role in the

offense for drug couriers. 
 Ashcroft Charging Memo, supra note 24, September 22, 2003, at 5. 112

 The PROTECT Act amended 28 U.S.C. § 994(w) to require the Chief Judge of each 113

district to submit a report of each sentence to the Commission, including any plea agreement. 

88

The successful effort to restrain judicial discretion...has not produced a system in

which similarly situated offenders are treated alike. Prosecutors have always been

vested with ample discretion, and the Guidelines’ diminution of the power of judges

further enhanced the power of federal prosecutors. Differences in the exercise of that

discretion among U.S. Attorneys, and by individual U.S. Attorneys in specific cases,

have resulted in the differential treatment of similar cases, and account for the lion’s

share of the remaining disparities in federal sentencing (id. at 1701).

Judge Gleeson advised the Commission not to concern itself with presentencing disparity, however,

since regional differences in public attitudes toward different types of crime and other local

conditions make disparate practices inevitable. He concluded this does “not mean that the

Guidelines have failed to achieve their essential goal” of controlling judicial discretion (id. at 1711).

4. Quantifying the Extent of Disparity Arising at Presentencing Stages

Limited data. While surveys and field research suggest that unwarranted disparity arises at

presentencing stages, such evidence can be challenged as anecdotal and impressionistic. Quantifying

the effects of presentencing decisions is hampered by a lack of systematic data on police and

prosecutorial practices. Only a few numerical estimates have been attempted. Based on their field

studies in ten federal districts early in the guidelines era, Schulhofer and Nagel (1997, p. 1284)

estimated that circumvention of the guidelines occurred in 20 to 35 percent of cases. The only other

attempt to quantify the exact impact of plea bargaining through statistical analysis was conducted

by the Commission in its Four-Year Evaluation. The Commission reported that in 14 percent of all

guilty plea cases sentenced in 1989, the plea agreement resulted in a sentence below the minimum

of the original guideline range. 

These early estimates are unreliable bases for quantifying the precise impact of presentencing

stages on sentencing today and more research is sorely needed. Recent revisions to Department of

Justice policies, which reiterate that plea agreements are to be placed on the record and forwarded 112

to the Commission, may help facilitate additional research in the coming years. Yet the existence 113

of pre-indictment bargaining, limitations in the ability of probation officers to investigate and report

offenders’ real offense conduct, and judicial inability or unwillingness to review and reject plea

agreements that understate the real offense will continue to hamper research. 

Research based on case documentation submitted to the Commission. The Commission

has periodically used the case documentation it receives on the vast majority of cases sentenced

under the guideline to shed light on the sentencing effects of charging and plea bargaining decisions.

Original and superceding indictments, plea agreements, and information provided by probation
89

officers in presentence reports are studied to reconstruct, as best as possible, offenders’ real offense

conduct and to compare it with the conduct for which they were ultimately held accountable. This

has proven some of the most difficult research undertaken at the Commission. First in 1990, as part

of the Four-Year Evaluation, and again in 1995 and 2000, the Commission collected an Intensive

Study Sample (ISS)—a representative, random sample of cases sentenced in each year. The ISS is

discussed in greater detail in Technical Appendix D. 

Research based on information provided in presentence reports has been challenged as not

accurately reflecting, for example, evidentiary problems that may attend proof of criminal conduct

in some cases. Thus, estimates of undercharging or fact bargaining may be overstated if they are

based on criminal conduct described by probation officers for use at the sentencing hearing, where

the rules of evidence and standard of proof are more lax, which could not have been readily proven

at trial. On the other hand, probation officers report that information on potentially applicable

charges is sometimes not provided to them or to the court, or is excised from the presentence report

if it is not used to determine the final sentence. This would cause comparisons of the conduct

described in the presentence report with the conduct used for sentencing to understate the extent of

undercharging or fact bargaining. On balance, although imperfect, data on undercharging or fact

bargaining derived from presentence reports are the most reasonable and best available to quantify

how presentencing stages affect the uniformity of sentencing. 

Uneven use of statutory penalty enhancements based on prior record. Research over the

past fifteen years has consistently found that mandatory penalty statutes are used inconsistently in

cases in which they appear to apply. Early in the guidelines era, the Commission reported that,

among all offenders who engaged in conduct that qualified them for a mandatory minimum sentence,

only 74 percent were initially charged with a count carrying the highest mandatory penalty applicable

to their conduct (USSC, 1991b, pp. 56-58). Only sixty percent were ultimately convicted and

sentenced at this penalty level or above. 

Perhaps the firmest evidence of uneven use of statutory penalties concerns 21 U.S.C. § 841,

which doubles the minimum statutory penalty for drug trafficking offenders who have a previous

conviction for a felony drug offense, as long as the government files notice of its intention to seek

the enhancement. Because criminal records are relatively straightforward compared to evidence

concerning drug amounts or other factors, evidentiary problems are unlikely to prevent prosecutors

from seeking this enhancement in a large number of cases. Yet the enhancement is more often

avoided than sought. In 1991, the Commission reported that the enhancement was applied in a

minority of qualified cases (USSC, 1991(b), p. 57). Analysis of data from both the 1995 and 2000

ISS samples found that the proportion of offenders with prior felony drug convictions who received

the enhancement was under seven percent (6.5% and 6.9%, respectively). 

Department of Justice policies explicitly permit prosecutors to forego the enhancement “after

giving particular consideration to the nature, dates, and circumstances of the prior convictions, and
 Ashcroft Charging Memo, supra note 24, September 22, 2003, at sec. I.B.5. 114

90

the extent to which they are probative of criminal propensity.” This policy, however sound in 114

theory, vests in prosecutors discretion to make sentencing judgments that were traditionally vested

in judges, and that the Commission was designed to make with the benefit of research and study.

There is reason to believe that the criminal history guidelines, which were developed based on

empirical evidence on the links between prior convictions and the likelihood of recidivism, are better

able to identify high-risk offenders than prosecutors deciding whether to pursue mandatory penalty

enhancements available in the statutes (Krauss, 2003; USSC, 2004).

Uneven use of firearms enhancements. Research on sentencing for possession or use of a

firearm during a drug trafficking or violent offense has also consistently found uneven use of the

statutory enhancement found at 18 U.S.C. § 924(c), as well as the firearm offense level adjustments

contained in the guidelines. In 1991, the Commission reported that among drug offenders, only

about 45 percent who qualified for a mandatory penalty enhancement under 18 U.S.C. § 924(c) were

initially charged under the statute. This firearms count was later dismissed for 26 percent of the

offenders initially charged. Analysis of 1995 ISS data found that only 34 percent of offenders who

qualified for the statutory enhancement based on use of a firearm received the enhancement. Thirty

percent received the guideline SOC instead, while 35 percent received no weapon increase of any

kind (Hofer, 2000). Offenders who had merely carried or possessed a firearm, as opposed to using

it, were even less likely to receive the statutory enhancement. Notably, Blacks accounted for 48

percent of the offenders who appeared to qualify for a charge under 18 U.S.C. § 924(c) but

represented 56 percent of those who were charged under the statute and 64 percent of those

convicted under it.

Analyses conducted for this report found that in 2000, just 20 percent of offenders who used

a firearm received the statutory enhancement, 35 percent received the SOC, while 49 percent

received neither. (Percentages add to more than 100 because a small number of offenders received

both the statutory enhancement and the SOC. These estimates have a margin of error of about plus

or minus ten percent because they are based on a random sample of cases.) As in 1995, offenders

who merely carried or possessed a firearm were even less likely to receive the statutory enhancement

than those who used it. Data from 2000 also showed the same pattern of disproportionate overrepresentation of Blacks among qualified offenders who actually received the statutory enhancement.

There is little empirical research exploring why enhanced penalties are sought in some cases

and not in others, or whethertheir use reflects legally relevant factors, extra-legal factors, or arbitrary

variation. A re-analysis of the Commission’s 1991 data found that racial disparity in use of

mandatory penalties disappeared after controlling for additional factors, including whether the

offender had pled guilty (Langan, 1992). Field research has reported that defense counsel believe

the existence of penalty enhancements that are applicable at the sole discretion of the government

gives prosecutors tremendous bargaining power to encourage defendant cooperation and discourage

zealous defense advocacy (Etienne, 2003). Without more complete data on the legitimate
Id. at sec. I.B.6. 115

91

considerations that affect charging decisions, it is not possible to evaluate the reasons for relatively

rare use of these enhancements or the disparities observed.

Department policy was recently clarified to give prosecutors additional direction regarding

use of the statutory firearm enhancement. The policy directs charging one count of 18 U.S.C. §

924(c) in every case in which it is applicable. If an offender has three or more possible counts and

the predicate offenses are crimes of violence, prosecutors are directed to charge and pursue the first

two such counts. The policy is silent on what should happen to offenders with two possible counts,

or where the predicate offenses are drug convictions. It also permits exceptions to these rules if an

office is “particularly overburdened” and in other circumstances.115

Statutory floors and statutory caps. Not seeking statutory minimum penalties can lead to

more proportionate sentencing, because statutory penalties would often trump the otherwise

applicable guideline range and prevent mitigating adjustments contained in the guidelines from being

taken into account. From this perspective, high rates of circumvention of potentially applicable

mandatory penalties may be desirable. Many offenders do not benefit from avoidance of the

penalties in these circumstances, however. In 2002, ten percent of federal offenders (over 6,000)

received sentences above the top of the guideline range that would otherwise have applied to their

case because of a trumping statutory minimum penalty. For another five percent, a statutory penalty

restricted the judge’s discretion above the minimum of the guideline range that would otherwise have

applied. Hispanic offenders, who were forty percent of all offenders, were forty-nine percent of

those whose guideline range was completely exceeded by a statutory minimum penalty. Drug

trafficking and firearm mandatoryminimum penalties are the primary cause of trumping. In a small

number of cases, 80 defendants in 2001, stacking of firearm counts resulted in statutory penalties that

far exceeded the otherwise applicable guideline range. 

On the other hand, charging decisions sometimes limit offenders’ exposure to punishment

below the guideline range that would otherwise apply to their offense. In 2002, 1,379 offenders

were convicted of charges carrying a statutory maximum sentence that was below the bottom of the

guideline range that applied to their offense. This was most often due to conviction of a less serious

immigration offense than they actually committed, or conviction for use of a communication facility

to commit a drug trafficking offense instead of drug trafficking itself.

Sentences that result from avoidance of applicable penalties may seem to those most familiar

with a particular case sufficient to meet the purposes of sentencing and more appropriate than the

penalty required by strict application of the statutes and guidelines. Present practices, however,

which lead to strict application in some cases and avoidance in others, result in disparity that cannot

be accounted for by existing data and may be unwarranted. The fact that charging decisions

disproportionately disadvantage minority offenders is further reason for additional research. 
 USSG, App. C, Amend. 651 (Oct. 27, 2003).

116

92

Departures pursuant to plea agreements. Finally, evidence that plea bargaining has resulted

in unwarranted disparity is found in data that “pursuant to a plea agreement” has been the most or

second most-frequently cited ground for downward departures in recent years (USSC, Sourcebooks,

1997-2002, Tbl. 25). While the policy statements in Chapter Six have always attempted to prevent

judicial acceptance of plea agreements that undermine the guidelines, these policy statements were

amended in 2003 to reiterate that the fact of an agreement alone is not sufficient to justify downward

departure absent other mitigating circumstances. Whether this change will be sufficient to

116

reinvigorate the standards for acceptance of plea agreements, which field research suggests are

largely unknown and widely disregarded, is an important question for the future. 

One danger is that restriction of explicit downward departures will lead to an increase in

“hidden departures” achieved through fact bargaining or other methods that fall “below the radar

screen.” Quantifying the extent of fact bargaining is among the most difficult research issues

because the effects of the bargain are built into the offense level reported to the Commission. Only

by inclusion of all real offense conduct in the presentence report can the extent of fact bargaining be

detectible to researchers. 

5. Presentencing Stages, Disparity, and the Mechanisms 

Designed to Control It 

 

Although a lack of data raises a serious obstacle to quantitative research, a variety of

evidence suggests that disparate treatment of similar offenders is common at presentencing stages.

Disparate effects of charging and plea bargaining are a special concern in a tightly structured

sentencing system like the federal sentencing guidelines, because the ability of judges to compensate

for disparities in presentence decisions is reduced. While the guidelines contain some mechanisms

to ameliorate the effects of disparate charging and plea bargaining practices—such as the relevant

conduct and multiple count rules, and judicial review of plea agreements—some of these

mechanisms are not working as intended. By their nature, some of these mechanisms tend to work

in one direction. The relevant conduct rule, for example, can increase sentences to account for

criminal conduct that was not charged or that was dismissed prior to sentencing. But there is no

guidelines mechanism to decrease sentences for an offender who, for example, is convicted of

several counts of 18 U.S.C. § 924 (c) and is therefore subject to multiple consecutive mandatory

penalty enhancements. If some offenders are charged in this manner while other similar offenders

are not, there is little a judge can do to compensate for the resulting sentencing disparity.

The remainder of this chapter is focused exclusively on sentencing. Uniformity is defined

as similar treatment of offenders who appear to be similarly based on the charges of conviction and

the facts established at the sentencing hearing. Achievement of the more ambitious goal of similar

treatment of offenders who engage in similar real offense conduct will also depend on uniform

treatment at presentencing stages.
SENATE REP. NO. 225, 98th Cong., 1st Sess. 45-46 (1983).

117

 The legislative history of the SRA states “[f]or the first time, Federal law will assure 118

that the Federal criminal justice system will adhere to a consistent sentencing philosophy.” 

Id. at 59.

93

C. Inter-judge and Regional Sentencing Disparity

In the legislative history of the SRA, Congress identified unwarranted sentencing disparity

among judges and, to a lesser extent, disparity among regions, as particularly disturbing national

problems.

Sentencing disparities that are not justified by differences among offenses or

offenders are unfair both to offenders and to the public. A sentence that is

unjustifiably high is clearly unfair to the offender; a sentence that is unjustifiably low

is just as plainly unfair to the public. Such sentences are unfair in more subtle ways

as well. Sentences that are disproportionate to the seriousness of the offense create

a disrespect for the law. Sentences that are too severe create unnecessary tensions

among inmates and add to disciplinary problems in the prisons.

117

With over fifteen years of experience under the guidelines, it is fitting to evaluate the success of the

guidelines system at achieving this goal and to identify any problem areas that may remain. 

Analyzing sources of inter-judge and regional disparity is complicated because the potential

sources are so many, varied, and interacting. Differences among judges in sentencing philosophy

has long been identified as an important source of variation in sentencing (Hogarth, 1971; Carroll,

1987). Research sponsored by the Department in the 1970s showed that judges differed in the

importance they placed on various factors depending on the region in which they sat (Sutton, 1978;

Rhodes & Conly, 1981). Sentencing can be influenced by differences among the districts and

circuits in their sentencing case law and “personas” (Demlietner, 1994). These, in turn, are

influenced by the political climates of different regions of the country. A great deal of research has

established the importance of the local norms of different district courts—what some researchers

have called court communities (Eisenstein & Jacobs, 1977; Ulmer & Kramer, 1996; Ulmer, 1997).

The norms of different courts are also influenced by practical constraints, such as court workload and

the availability of different types of sentencing options. 

The use of sentencing guidelines was intended to control the effects of philosophical

differences among judges and varying local conditions. But even under a detailed and binding 118

system like the federal sentencing guidelines, differences might arise among judges in how they use

the guideline range, the available sentencing options, or the departure power, all of which could

result in disparity. This chapter begins by examining whether implementation of the guidelines

reduced inter-judge and regional sentencing disparity. It then turns to an examination of the various

sources of inter-judge and regional disparity that may remain in federal sentencing today. 
 Pub. L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650 (April 30 ,2003). 119

 28 U.S.C. § 991(b)(1)(B).

120

SENATE REPORT, supra note 1, at 41. 121

94

1. The Effects of the Guidelines on Inter-judge and Regional Disparity 

The “central question” about the success of sentencing reform is whether implementation of

the guidelines reduced unwarranted sentencing disparity. In its 1992 evaluation of the guidelines

system, the General Accounting Office declared that this question “remained unanswered” (GAO,

1992). Today, better data and methodological innovations permit a more complete answer. The

results of the latest analyses indicate that the guidelines have significantly reduced inter-judge

disparity compared to the preguidelines era. Although some inter-judge disparity remains, the

influence of judges’ personal philosophy on sentencing decisions has been reduced. 

Regarding regional disparity,

however, the available data and the methods

for analysis are less robust and the

conclusions are less reassuring. The

available evidence suggests that regional

disparity remains under the guidelines, and

some evidence suggests it may have even

increased among drug trafficking offenses.

Rates of use of guidelines mechanisms for sentencing outside the presumptive guidelines range, such

as downward departures for substantial assistance to the government or departures for other

mitigating circumstances vary dramatically among the circuits and the districts. In addition, with

passage of the PROTECT Act Congress re-opened the question of what types of regional 119

disparities are to be considered unwarranted by creating a new mechanism for regional variation,

“early disposition programs.”120

2. Evidence of Inter-judge and Regional Variation in the Preguidelines Era 

Uncontrolled studies. Data showing wide variations in the percentage of offenders sent to

prison by different judges or in different regions, or in the average length of prison sentences

imposed, were well known in the years preceding guidelines implementation. Congress cited some

of these data (Sutton, 1978) in the legislative history of the SRA. However, as discussed further 121

below, simple tabulations of variations in sentences do not demonstrate unwarranted disparity

because different judges and different regions have different types of cases, with differing offense

seriousness and offender criminal histories. Some variation in average sentences is fully warranted.

Only by controlling for case differences can we determine how much, if any, of the variation was

unwarranted. 

The best and most recent statistical

analyses indicate that the guidelines have

significantly reduced inter-judge disparity

compared to the preguidelines era.
95

Primary judge effects and interaction effects. Congress was also presented data from

experimental research, which controlled for case differences and isolated the disparity attributable

to judges. The Federal Judicial Center’s Second Circuit Study (Partridge & Eldridge, 1974) found

dramatic differences among judges in the sentences imposed on hypothetical offenders. Judges were

sent presentence reports representing a range of typical offenses, based largely on actual cases.

Differences of several years were common. In one case more than seventeen years separated the

most severe from the least severe sentence. The data showed that differences in the average

sentences—what researchers call the “primary judge effect”—was fairly small for the majority of

judges, even though a handful of judges were consistently more severe or lenient than their

colleagues. This average similarity masked more substantial underlying disparities, however.

Judges varied significantly in their approach to different types of cases—what researchers call

“interaction effects.” Some judges treated white collar offenders more harshly than their peers, but

drug offenders less harshly, while other judges’ treatment was the opposite. A second study

quantified these two different types of disagreement among judges (Forst & Wellford, 1981). Again

using hypothetical cases, the researchers identified how much of the variance in sentences was due

to offense and offender characteristics, and how much was attributable to judges. Twenty-one

percent of the variance was attributable to the primary judge effect, while thirty-four percent was

attributable to interaction effects. The researchers also demonstrated that differences among judges

in sentencing philosophy helped explain their differences in sentencing decisions.

Limitations of research using hypothetical cases. Research using hypothetical cases

demonstrated that some disparity in sentences can be attributed to the judges to whom cases were

assigned. However, critics have questioned whether these findings can be generalized to the real

world (Stith & Cabranes, 1998; see also discussion of the limitations of using hypothetical cases to

evaluate the guidelines in Hofer et al., 1999). Waldfogel (1997) used data on real cases from one

federal district to evaluate the extent of inter-judge disparity in the preguidelines era. Like previous

researchers, he found that the primary judge effect was less important than the interaction effects,

but these accounted for only 2.3 percent and 9 percent of the variance in sentences, respectively.

Research using hypothetical cases may exaggerate the extent of inter-judge disparity in the actual

caseload. 

3. Research Concerning the Guidelines’ Effects on Disparity

 The federal system has been evaluated perhaps more thoroughly than any other, by both the

U.S. Sentencing Commission itself and outside researchers. However, this increased scrutiny did

not initially result in consensus about whether disparity had been reduced. Early research, using a

variety of research methods and assumptions, resulted in a spectrum of opinions that varied from

those who believed disparity was reduced (USSC, 1991; Karle & Sager,1991) to those who could

not tell whether there had been significant change (GAO, 1991) to those who believed disparity had

actually gotten worse under the guidelines (Heaney, 1991). 

Survey results indicate growing judicial support for sentencing guidelines. When the

federal guidelines were adopted, many judges doubted that the guidelines would be effective in
96

reducing disparity (Alschuler & Schulhofer, 1989). As time passed and experience with the

guidelines increased, judges began to have more favorable views on the guidelines system. A 1991

survey conducted by the Commission found that judges were evenlysplit between those that thought

the guidelines increased disparity (31.8 percent), those that thought the guidelines decreased disparity

(36.2 percent), and those that thought the guidelines had no impact on disparity (32.0 percent)

(USSC, 1991). In later surveys, more respondents recognized that sentencing guidelines could be

an effective tool to reduce unwarranted disparity. By 2001, more than a third (36.9 percent) of

federal district judges indicated that the guidelines “almost always” avoided unwarranted sentencing

disparity for similar offenders convicted of similar conduct. A similar proportion (32.1 percent)

thought that the guidelines often avoided this form of disparity. Just about a quarter (25.4 percent)

reported that the guidelines only sometimes avoided this disparity, and only a handful of judges (5.6

percent) reported that the guidelines rarely avoided disparity (USSC, 2002).

Early empirical evaluations of the guidelines. While surveys provide insights into judges’

impressions of the effects of the guidelines, empirical research that examines data on changes in

actual sentencing practices is necessary to assess if the guidelines have been successful. Even with

such data, however, it is difficult to isolate the effects of the guidelines from the effects of other

changes that occurred at the same time as guidelines implementation. Several early evaluations

illustrate problems in isolating the effects of the guidelines from shifts in the types of cases sentenced

in the preguidelines and guidelines eras. (Heaney, 1989; Karle & Sager 1991; GAO, 1992. See

Hofer et al., 1999, for a review and critique of these early studies.) 

The Commission’s previous attempt to evaluate the guidelines’ success at reducing

unwarranted disparity was included in the Four-Year Evaluation (USSC, 1991, pp. 279-299). The

report featured a “Distributional Analysis” that compared bank robbery, cocaine distribution, heroin

distribution, and bank embezzlement cases sentenced during fiscal year 1985 with similar cases

sentenced in the first months of full guidelines implementation. The Commission matched offenders

from the two time periods on factors deemed relevant to sentencing, e.g., the approximate amount

of drugs, any injury caused to any victims, the defendant’s role in the offense and criminal record,

and whether the defendant pled guilty or went to trial. Variations among the matched groups at each

time period were compared in terms of the sentence imposed and the expected time the defendant

would actually serve. Because only offenders who met the strict matching criteria could be included

in the study, the number of defendants in each group was relatively small. However, the analysis

showed that the distribution of sentences for each group under the guidelines was narrower than in

the preguidelines era. The Commission concluded from these results that unwarranted disparity was

reduced by the guidelines. 

Several reviewers criticized the Commission’s methods, however, and questioned whether

the study so clearly demonstrated success. (Tonry, 1997; McDonald & Carlson, 1993; Rhodes,

1992; Weisburd, 1992. For more thorough analysis of these criticisms, see Hofer et al., 1999.) At

the request of Congress, the GAO re-analyzed the data on several offenses using somewhat different

techniques. Their analyses replicated and confirmed the Commission’s basic findings, but the GAO

concluded there was insufficient evidence to establish clearly that the guidelines had reduced
97

disparity (GAO, 1991). One of the problems identified by critics was the small and unrepresentative

sample of cases used in the study, due to the use of matched groups to achieve comparability of

cases. What was needed was a different method that could examine judge-created disparity in the

caseload as a whole.

4. Recent Research Concerning the Guidelines’ Effects on Disparity

The “natural experiment” method. In 1991, the economist Joel Waldfogel introduced a

method that has since been used by researchers both inside and outside the Commission to evaluate

the effect of the guidelines on inter-judge disparity (Waldfogel, 1991). This “natural experiment”

method exploits a common court procedure: random assignment of cases to judges. By measuring

variation in average sentences before and after guidelines implementation among judges in the same

random assignment pool, the extent to which judges influence sentences can be quantified.

Waldfogel’s initial study reported no decrease in disparity under the guidelines (Waldfogel, 1991).

In 1997, Payne replicated Waldfogel’s approach in more districts, with mixed results (Payne, 1997).

Limitations in these early studies, and the great promise of the natural experiment method, led

researchers to extend the work using more recent data and more robust statistical models. (See Hofer

et al., 1997, for further discussion of all studies using this methodology.) 

Later research using the “natural experiment” method. Commission staff published results

of its research in the Journal of Criminal Law and Criminology (Hofer et al., 1999) and details of

the analysis can be found in the Technical Appendix accompanying that article. The statistical

model permitted quantification of inter-judge disparity across all the different cities included in the

study, while comparing each judge only to other judges in the same city who were part of the same

random assignment pool. Both the primary judge effect and interaction effects between judges and

seven different offense types were studied. In addition, measures of the amount of variation among

different regions were calculated. The magnitude of the influence of each of the explanatory factors

during the two time periods was measured with the R-squared—the percentage of variance in

sentences accounted for by each factor.

The study compared sentencing in fiscal years 1984-85, immediately before implementation

of the guidelines, with 1994-95, after the guidelines were fully implemented. Two sets of analyses

were conducted. To control for changes in the composition of the bench, the first analysis involved

only judges who sentenced during both time periods. This limited the analysis to just nine cities that

had at least three judges meeting this criteria, however. The primary judge effect accounted for 2.32

percent of the variation in sentences in the preguidelines era. Under the guidelines, this dropped to

1.24 percent, a reduction of almost half. The effect ofjudges was statisticallysignificant at both time

periods, but was substantially reduced under the guidelines. 

The second analysis included all judges who were part of a random assignment pool

involving at least three judges, regardless of whether they sentenced during both time periods. This

expansion allowed the analysis to include 41 cities. The overall pattern of results was similar to the

nine-city analysis. Again, the primary judge effect was significant at both time periods, but was
98

reduced under the guidelines—2.40 percent in the preguidelines era and 1.64 under the guidelines,

a reduction of one-third. In this 41-city analysis, the effect of the guidelines appeared more limited

and differences among cities appeared more important. 

As in studies conducted in the preguidelines era, the interaction effects between different

offense types and judges were substantially larger than the primary judge effect. Judges disagree

about the appropriate sentence for specific cases to a greater extent than is revealed by differences

in the primary judge effect, which measures only the “tip of the iceberg” of sentencing disparity. 

To examine whether the effects ofthe guidelines varied for different offenses and in different

cities, results were calculated for seven offense types separately. The results suggest that the effect

of the guidelines has not been uniform. For most offenses, the judge effect decreased under the

guidelines, but for robbery and immigration offenses the influence of judges increased. 

Most troubling were changes in the influence of cities on sentences, which actually increased

in the guidelines era. Almost all of the increase was found in drug trafficking offenses, where the

city effect increased from 6.2 before guidelines implementation to 12.7 percent under the guidelines.

This suggests more regional disparity in the sentencing of drug cases under the guidelines.

Interpreting the city effect is difficult, however, because cases are not randomly assigned to cities.

In addition, policy changes between 1984-1985 and 1994-95 could exacerbate the effects of the

guidelines. For example, the greater emphasis on drug quantity in sentencing following enactment

of the Anti-Drug Abuse Act of 1986 could create greater disparity between small cities and large

cities, which are distribution centers for larger quantities. Note also that fiscal years 1994-1995 were

prior to adoption of early disposition programs in some districts, which may have contributed to

growing regional disparity in other types of cases, such as immigration.

Research outside the Commission. A reduction in inter-judge disparity under the guidelines

was found in a study by researchers outside the Commission, who also used the natural experiment

methodology and a highly sophisticated statistical model. Anderson, Kling & Stith (1999) studied

sentencing patterns in 26 cities over 12.5 years among judges who sentenced in both the

preguidelines and guidelines eras. They conducted rigorous tests to confirm the randomness of

assignment to judges and constructed a statistical model that allowed them to test the significance

of changes in inter-judge disparity over the entire period of their study. These improvements in the

model allowed them to detect “changes . . . more pronounced than the mixed results of previous

studies” (p. 294). 

In the preguidelines era, the expected difference in sentence lengths between two typical

judges was about 17 percent of the average sentence length. Under the guidelines, this difference

fell to 11 percent. Because average sentences are lengthier in the guidelines era, a given percentage

of disparity among judges results in a larger absolute difference in months of imprisonment. Taking

into account these changes, the authors report: “For 1986-87 when the mean sentence length was

29, the expected inter-judge difference was 4.9 months, which fell to 3.9 months in 1988-93 when

the mean sentence length was 35.” Further tests indicated that the switch to guidelines, and not
99

changes in the composition of the bench or in the types of cases sentenced over the period of their

study, accounted for the decrease in inter-judge disparity. 

These authors suggest that the enactment of mandatory minimum penalties for drug offenses

in 1986 may have contributed to the decrease in disparity for drug offenses. They also note that the

effects of discretionary decisions by law enforcement officers and prosecutors at presentencing

stages have greater influence under the guidelines system, since later actors have fewer opportunities

to ameliorate any effect of disparate treatment prior to sentencing. Some of the inter-judge disparity

in preguidelines sentencing was likely ameliorated by the parole guidelines, which affected the

prison time actually served by offenders prior to implementation of “truth-in-sentencing.”

The sentencing guidelines have reduced

inter-judge disparity. At this time, findings from

research using the natural experiment method have

not been challenged and it appears unlikely that a

more powerful method for studying the effects of

the guidelines on inter-judge disparity will be

found. The convergence of findings by researchers

both inside and outside the Commission lends additional credibility to the results. The conclusion

is clear: the federal sentencing guidelines have made significant progress toward reducing disparity

caused by judicial discretion. 

D. Continuing Disparity Under the Guidelines

Though clearly reduced by the guidelines, inter-judge sentencing variations that cannot be

explained by differences in the caseload remain statistically significant today. Regional disparity

also appears to remain and may have increased for some types of cases. How can disparity continue

in a system of detailed and binding sentencing rules? The remainder of this chapter reviews the

evidence that inter-judge and regional disparity continue to exist in federal sentencing and explores

how it occurs. 

1. Continuing Regional and Inter-judge Disparities

The natural experiment method is best for establishing whether inter-judge disparity has been

reduced by implementation of the guidelines, but it is not as precise as other methods for measuring

the amount of inter-judge and regional disparity today and comparing the effects of judges and

regions with the warranted effects of legally relevant considerations, such as the seriousness of the

crime and the criminal history of the offender. 

Uncontrolled comparisons. The Commission’s annual Sourcebook of Federal Sentencing

Statistics and additional information found at the Commission’s website

(http://www.ussc.gov/LINKTOJP.HTM) contain a wealth of information on departure rates and

The sentencing guidelines have

made significant progress toward

reducing disparity caused by

judicial discretion.
See USSG §2B1.1. 122

100

other sentencing variations that some commentators have used to question the guidelines’ success

(Miller, 2002; Mercer, 2003). These data compare the sentencing practices of each federal district

with other districts and with national rates and averages. The data show that the types of sentences

imposed and the average sentence lengths for offenders convicted of various types of crime vary

among the districts. The rates of departure for substantial assistance or other mitigating or

aggravating conditions also vary substantially among the districts and circuits. 

These regional variations do not necessarily indicate unwarranted disparity, however,

because different districts sentence different types of crimes within the general offense categories

found in the reports. The types of fraud sentenced in the Southern District of New York (average

fraud sentence 23.5 months) are different than the frauds sentenced in the District of North Dakota

(average sentence 11.4 months). The guidelines themselves require different sentences for frauds

involving different amounts of monetary loss, different numbers of victims, and many other specific

offense characteristics. Similarly, variations in the rates of a particular type of departure among 122

different districts must be evaluated within a larger context of each district’s distinctive adaptation

to the guidelines system. Inferring unwarranted disparity from uncontrolled comparisons of average

sentences or rates of departure may be erroneous. 

 

Multiple regression studies. One source of variation in sentences that is clearly warranted

is differences in the types of cases sentenced by each judge and in each district. Researchers have

sought to control for legally relevant differences among cases using the statistical technique of

multiple regression. Many studies of racial and ethnic disparity have also included measures of the

district and circuit in which each case was sentenced. These studies suggest that differences in

offense seriousness, defendant criminal history, or other legally relevant factors account for the

largest share of variation among cases, but that some statistically significant variation among regions

remains unexplained. 

Albonetti (1997) reported that the probability and length of imprisonment for drug offenses

sentenced in the early years of the guidelines was affected byregion in about half of the circuits, after

controlling for offense level, criminal history points, and a number of other legally relevant factors.

Everett and Wojtkiewicz (2002) grouped the circuits into five regions and reported harsher

sentencing in the southern circuits and more lenient sentencing in the northeastern and western

circuits. Kautt and Spohn (2002) reported a statistically significant effect in drug cases sentenced

in 1997-1998 in a minority of circuits. These studies did not use the presumptive sentence method,

discussed in greater detail in Chapter Four and in Technical Appendix D, to control for legally

relevant differences among cases. This introduces some avoidable errors in the results, because the

effects of trumping mandatory minimum statutes, mandatory firearm sentencing enhancements, and

other legally relevant considerations binding on the judge were not properly specified.
101

A new approach: hierarchical modeling. Recent developmentsin the field of statistics (see

e.g., Raudenbush & Bryk, 2002) have introduced researchers to a new method that may be superior

to multiple regression for studying inter-judge and regional differences today. Hierarchical models

avoid some types of statistical bias that can arise in multiple regression models and also permit

researchers to explore the direct effects of factors on sentences and the conditioning effects of higherlevel factors on lower-level factors. For example, the effect of district workload on the extent of

departure in a district might be studied using a hierarchical model. Several studies have appeared

in the last two years using these new methods to investigate regional variation in sentencing under

the federal guidelines (Ulmer et al., 2001; Albonetti, 2003; Spohn, 2003). One such study has been

published at the time of this writing (Kautt, 2002). 

In a study of federal drug trafficking sentences, Kautt found variations between jurisdictions

that could not be accounted for by the legally relevant differences included in her model. Districts

and circuits both affected sentences, with the influence of districts more important than the influence

of circuits. Districts also appeared to differ in the way that legally relevant factors influenced

sentences. From these results Kautt concluded that “despite the federal system’s congressionally

mandated return to determinate sentencing, extra-legal factors (specifically jurisdictional effects)

continue to influence the federal sentencing system and its outcomes directly and indirectly . . . these

findings indicate a far greater concern: that the mechanisms of federal structured sentencing may

foster certain forms of extralegal sentence disparity” (Kautt, 2002, p. 659). 

Hierarchical models are a powerful new tool for studying regional variation, but they are

“delicate and complex” (Kautt, 2002, p. 645). Mis-specification of the relationship among

explanatory factors might distort results in unpredictable ways. For this reason, using the

presumptive sentence method to represent legally relevant considerations seems desirable. (Kautt

considered but rejected the use of a presumptive sentence model for reasons that are unclear, see id.

at 649, n. 15.) Additional research with hierarchical models using the presumptive sentence to

control for legally relevant differences among cases could prove very useful. 

A new hierarchical analysis of inter-judge and regional disparity. For this report, a

hierarchical model of the determinants of sentence length was developed, using the presumptive

sentence to control for differences among cases in the legally relevant factors taken into account by

the guidelines and mandatory minimum statutes. Both judges and districts were included as levels

of analysis. All cases sentenced in 2001 with full information were analyzed, with the exception of

cases handled by visiting judges. Appendix D contains additional details of this analysis. 

The analysis showed that legally

relevant differences among cases explain the

vast majority of variation among judges and

regions in sentence length. Fully 73 percent

of sentence variation is accounted for by the

guidelines and statutes. The amount of

variation that is associated with judges or

Research using the most current

statistical models continues to show

relatively minor inter-judge and

regional disparity not explained by case

differences.
102

districts is relatively small. Of the 27 percent of variance that is not accounted for by the

presumptive sentence, just 2.9 percent is associated with judges within each judicial district, and 2.8

percent is among judicial districts. The remaining is unexplained case variation. The judge and

district levels provide relatively minor variation of sentences compared to case differences. 

2. Mechanisms for Disparity Within the Guidelines System

Congressional attention has recently focused on potential disparity arising from varying

downward departure rates for mitigating circumstances identified by judges (Mercer, 2003;

PROTECT Act, 2003). Less attention has been paid to other potential sources of disparity. These

include variation in rates of other types of departure, such as rates of departures for substantial

assistance to the government or the extent ofsuch departures for different forms of assistance (Saris,

1997; Maxfield & Kramer, 1998; Farabee, 1998). The PROTECT Act authorized a new ground for

departure for defendants who participate in qualified early disposition programs. In addition, the

guidelines give judges discretion over placement of the sentence within the guideline range,

including, in some cases, whether to use a sentencing option such as probation. 

Relative contribution of different mechanisms to sentence variation. To assess the

influence of each of these mechanisms on sentencing disparity, a multiple regression analysis of

sentences imposed in 2001 was undertaken. Details of this analysis are provided in Technical

Appendix D. In addition to the presumptive sentence, the analysis included variables indicating

whether the case 1) received a sentence within the guideline range, but above the minimum of the

range, 2) received an upward departure, 3) received a downward departure for a mitigating

circumstance identified by the judge, or 4) received a downward departure for substantial assistance.

As in other analyses using the

presumptive sentence, the guideline and

statutory factors represented by the

presumptive sentence accounted for the vast

majority of variation in sentences in 2001

—75 percent. (Slight differences in the

amount of variation accounted for by the

presumptive sentence are expected due to

the different populations of cases included

in each analysis.) Among the mechanisms,

substantial assistance departures accounted for the greatest amount of the remaining variation in

sentence length—4.4 percent. Other downward departures contributed 2.2 percent, while upward

departures contributed just 0.29 percent. Only 0.07 percent of the variation was explained by use

of the guideline range above the guideline minimum. 

It may be surprising that substantial assistance departures account for so much more

variability in sentence length than other types of downward departures, because the rate of the two

types of departure are similar—17.1 percent and 18.3 percent, respectively (USSC, 2001, Tbl. 26).

Among discretionary mechanisms within

the guidelines system, substantial

assistance departures contribute the

greatest amount to variation in sentences,

while judges’ use of the guidelines range

contributes the least.
103

However, the extent of departure for substantial assistance is on average far greater. The mean

departure length for substantial assistance was 43 months (or a mean 56 percent decrease from the

guideline minimum), while the mean departure length for other downward departures was just 20

months (or a mean 47 percent decrease from the lower average guideline minimum found among

offenders receiving these departures). 

The relative unimportance of placement within the guideline range above the minimum may

also be surprising. Almost 38 percent of offenders received a sentence above the guideline minimum

in 2001, and 13.8 percent were sentenced at the guideline maximum (USSC, 2001, Tbl. 29). But the

average difference between the guideline minimum and the sentence imposed in these cases was just

6.8 months. It should be noted, however, that at the lower end of the sentencing table a six month

difference may be the difference between a sentence of simple probation and six months in prison—a

distinction of considerable importance to the offenders involved. 

A total of just over 82 percent of the variation in individual sentence lengths could be

explained by the model. This does not mean that 18 percent of the variation in sentences is

unwarranted. The model only identified the relative importance of different mechanisms—how

frequently the mechanism is used and how far from the presumptive sentence offenders affected by

the mechanism are sentenced. It did not attempt to determine if the mechanisms were being used

appropriately and uniformly. For this we must turn to research specific to each one. 

3. Departures upon Motion of the Government

Several types of sentence reductions can be made only upon motion of the government.

Departures from the guidelines and guideline adjustments for various forms of defendant

cooperation—such as “substantial assistance in the prosecution of other persons” under USSG

§5K1.1, 18 U.S.C. § 3553(e) and Federal Rules of Criminal Procedure, Rule 35(b); participation in

an “early disposition program” under USSG §5K3.1 p.s.; and timely “acceptance of responsibility”

under USSG §3E1.1(b)—may all be granted only upon motion of the government. Research on

several of these mechanisms has revealed considerable regional variation, suggesting that uniform

practices have not been in place. Policies put in place subsequent to the PROTECT Act are too new

to be evaluated with the data available for this report.

Downward departures for substantial

assistance. Downward departures for

substantial assistance to the government in the

prosecution of other persons are made pursuant

to USSG §5K1.1. The policy statement permits

such a departure only upon the motion of the

government, but it does not require that the judge depart whenever the government so moves.

Research has shown, however, that judges almost always grant these departures when a motion is

made (Maxfield & Kramer, 1997). The rates of substantial assistance motions vary among the

districts. In 2002, the national rate was 17.4 percent of all offenders. Five districts had rates twice

Rates of substantial assistance

departures vary widely among the

districts.
See Federal Judicial Center, Guideline Sentencing: An Outline of Appellate Case Law 123

on Selected Issues, § VI.F.2 (2002). 

104

as high as the national rate, with three districts having rates over 40 percent (USSC, 2002, Table 26).

On the other hand, 12 districts had substantial assistance departure rates less than half that of the

national rate, while three had rates of less than five percent. 

Policy statement, section 5K1.1 sets out a non-exhaustive list of reasons for judges to

consider when determining the appropriate extent of a reduction. However, no detailed nationwide

policies governing how substantial assistance motions should be used, nor how the extent of the

departure should be determined, have been promulgated by either the Department of Justice or the

Sentencing Commission (Lee, 1997; American College of Trial Lawyers, 2001). Case law has

established some principles for determining the extent of departure in some circuits. The 123

Commission has received limited reports of standardized discounts in some districts, although in

other districts, once a motion is made the determination of the sentence is left entirely to the

discretion of the sentencing judge. The majority of sentencing judges reported cases where a

defendant had substantially assisted the government, but had not received a motion for a departure

on that ground (FJC, 1997).

Given the wide variety of behaviors that can qualify a defendant for a substantial assistance

departure, some commentators have suggested that courts are given insufficient guidance regarding

the appropriate extent of departure (Berman, 2002; Bowman, 1999). Some have argued that

substantial assistance departures are a source of continuing unwarranted disparities (Tease, 1992;

Marcus, 1993; Gyurici, 1994; Lee, 1994, 1997), although others have cautioned that differences in

rates of departure do not necessarily result in sentencing disparities (Weinstein, 1998; Storto, 2002).

Empirical research on substantial assistance departures is extremely difficult because detailed

information on the most important legally relevant consideration—the nature of the defendant’s

assistance to the government—is available only to the prosecutors familiar with the case. While U.S.

attorneys offices are required to document the reasons underlying every substantial assistance motion

(DOJ, 1992), these records are not collected into a comprehensive database that can be used for

empirical analysis. However, what research has been done indicates that substantial assistance

departures may be a source of continuing sentencing disparity.

A comprehensive study of substantial assistance departures was undertaken by the Sentencing

Commission in the mid-1990s (Maxfield & Kramer, 1998). It included a survey of U.S. attorney

offices’ policies on substantial assistance, site visits to eight districts, and an examination of the

types of cooperation given by a random sample of defendants receiving substantial assistance

departures, as determined by analysis of the presentence reports prepared in the case. The research

uncovered irregular and inconsistent policies and practices among the various districts. 
 Terwilliger Bluesheet, supra note 43. 124

105

(1) While every U.S. attorney office reported some review process for the

approval of substantial assistance motions, and four out of five offices had

written policies regarding the use of substantial assistance motions, review

of a sample of cases showed that in practice districts frequently diverged from

their stated policies. 

(2) Different U.S. attorneys offices were consistent in authorizing motions for

offenders who provided information against other persons, or participated in

the investigation of other persons, or testified against them. But different

offices varied in whether and how they considered information offenders

provided concerning their own criminal conduct. 

(3) Six out of ten offenders who provided some assistance did not receive a

section 5K1.1 motion, suggesting that prosecutors generally require that the

assistance be substantial.

(4) Offenders at higher levels of a criminal conspiracy are not more likely to

benefit from a departure for substantial assistance than are lower-level

offenders. Although occurring in some specific cases, the so-called

“cooperation paradox” in which more culpable offenders receive shorter

sentences than less culpable offenders was not common. 

(5) Offenders providing similar types of assistance received varying magnitudes

of departure. Offenders with longer presumptive guideline sentences tended

to receive greater reductions.

A lower annual rate of substantial assistance departures for Blacks has been a consistent

finding in the guidelines era. Minority defendants may, in fact, be less trusting of government

officials, less willing to become “snitches” due to pride or fear of reprisal, or less well-positioned

to provide useful information than White offenders. Maxfield and Kramer found that Whites and

women were more likely to receive a motion after controlling for offense type, guideline range,

weapon involvement, and a host offactors relevant to sentencing. However, a re-analysis by Langan

(1996, 2001) found that part of the difference between the races was due to their different rates of

pleading guilty, and that the statistical significance of the remaining difference was questionable.

Neither of these studies could adequately evaluate whether there might be legitimate reasons for

differences in substantial assistance departure rates among different groups due to lack of data on

the nature of the assistance various offenders provide. Beginning in 1992, Department policy

required prosecutors to “maintain documentation of the facts behind and justification for each

substantial assistance pleading.” No standards for how this information is to be recorded appear 124

to have been promulgated and the data have not been compiled or made available to outside

researchers. 
 Letter from Eric H. Jaso, Counselor to the Assistant Attorney General, DOJ, to Hon. 125

Diana E. Murphy, Chair, USSC, regarding “Fast-Track Program,” August 12, 2003.

106

Rule 35 sentence reductions. In addition to substantial assistance departures, U.S. attorneys

offices can file motions with the court to have previously imposed sentences reduced based upon

post-sentencing cooperation by an offender. These are known as Rule 35(b) motions. Data on the

use of Rule 35(b) motions or on factors that might account for their use have been very difficult to

obtain (Marcus, 1985). The Commission does not reliably receive reports on sentence reductions

following the sentencing hearing, so analyses using the Commission’s monitoring databases cannot

detect their effects on sentences. However, a recent paper using data from the Federal Bureau of

Prisons presented the first empirical look at these reductions (Adams, 2003). It suggests that

regional variations in practice found with §5K1.1 motions may be present with Rule 35(b) motions

as well. 

The number of offenders receiving Rule 35(b) sentence reductions has increased dramatically

over the guidelines era, from 30 offenders in 1988 to 1,453 offenders in 2000, the last year for which

data are available. The average extent of the reduction has remained fairly stable through the years,

varying between 30 and 42 percent of the originally-imposed sentence, although the extent varies

by district. Drug offenders are by far the most frequent beneficiaries of Rule 35(b), accounting for

80 percent of the reductions. The use of Rule 35(b) varies significantly among the districts. Most

districts account for less than one percent of offenders receiving Rule 35(b) reductions in any given

year, but in one recent year ten districts accounted for over two percent of offenders receiving the

reduction while one district accounted for over 15 percent. 

Downward departures for participation in early disposition programs. The Department

recently informed the Commission that prosecutors in certain districts have developed early

disposition, or “fast-track” programs, that grant participating offenders sentencing concessions.125

How many districts have employed these programs, and for how long, is not known. These

programs offer defendants a sentence reduction, in the form of a downward departure, charge

dismissal, or some other benefit, in return for the defendant’s waiver of certain procedural rights.

These rights might include a prompt guilty plea, a waiver of appeal rights, and in cases involving

non-citizens, the defendant’s agreement to immediate deportation. Practitioners and commentators

have expressed concern that the presence of these programs in some districts, and their absence from

neighboring districts, could lead to disparate sentencing outcomes for offenders convicted of similar

conduct (USSC Hearing, 2003). The absence of reliable information on the types of cases which are,

and which are not, sentenced pursuant to early disposition procedures prohibits analysis of the impact

of these programs on sentencing disparity. But as discussed below, the presence of fact track

programs in some districts explains a great deal of regional variation in downward departure rates.

The PROTECT Act sought to formalize and standardize these practices. Per the act, the

Sentencing Commission authorized a downward departure from the guidelines of “not more than
 USSG §5K3.1 (policy statement). 126

 Ashcroft Fast-Track Memo, supra note 46, Sept. 22, 2003. 127

 28 U.S.C. § 994(b)(2). 128

 USSG §5C1.1. 129

See e.g., USSG §2C1.2, comment. n. 3. 130

107

four levels” for offenders who participate in these programs. The Department has outlined criteria

126

to be used to authorize early disposition programs in some districts. Whether these developments 127

will ensure uniformity of sentencing under these programs cannot yet be determined. Evaluation

of these programs will be possible only if the Department and relevant U.S. attorney offices provide

data which reveal the workings of the fast track process.

4. Variability of Within-Guidelines Sentences

Congress recognized in the SRA that no set of rules could anticipate every circumstance

relevant to the sentencing decision. In addition to authorizing departures in exceptional

circumstances, Congress permitted the Commission to design guidelines that provide a limited range

of prison time for each category of offender. The Commission determined that in the lower zones 128

of the sentencing table, judges should have discretion to sentence offenders to prison terms or to

choose from a variety of sentencing options. At the highest offense levels the guideline range is 129

over six years and judges may impose sentences anywhere within it. Discretion within the guideline

range permits consideration of subtle differences among offenses and offenders that are not

considered by the guidelines, but that do not meet the exceptional standards for departure.

Guidelines commentary encourages use of the range to take account of differences in offense

seriousness in some circumstances.130

Use ofsentencing options. The Commission’s annual Sourcebook contains information on

the use of the sentencing range and sentencing options for various types of offenses. Figure F from

the 2002 Sourcebook, reproduced on the following page, shows the imprisonment rates of offenders

who are eligible for a non-prison sentencing option for nine offense categories. Many offenders who

could receive a sentence of probation under the guidelines are imprisoned instead. Imprisonment

rates of probation-eligible offenders range from over 80 percent for immigration offenders (reflecting

their frequent lack of a United States residence and imminent deportation) to about 20 percent for

larceny offenders. All other offense types vary between 20 and 50 percent of probation-eligible

offenders receiving imprisonment instead. These findings have remained fairly stable from year-toyear.
108

The Commission’s website contains this information for each district and each circuit. (See

webpage for each jurisdiction at http://www.ussc.gov/JUDPACK/JP2002.htm, Tbl. 6). Nationally,

45.9 percent of offenders for whom probation is an option receive imprisonment instead, but this rate

varies significantly by district. In 2001, the rates in each district varied from a low of 9.3 percent

to a high of 78.1 percent. (Districts that sentenced fewer than 30 probation-eligible offenders were

excluded from these analyses because their rates can be dramatically affected by a small number of

offenders.) The incarceration of probation-eligible fraud offenders, for example, varied from 17

percent to 38 percent between New Jersey and Pennsylvania, two contiguous districts.

Some of this regional variation can be accounted for by differences in the specific types of

offenses and offenders sentenced in each region. A 1996 Commission report examined factors

associated with judges’ use ofsentencing options(USSC, 1996). Using a multiple regression model,

it was found that criminal history, employment status, role in the offense, citizenship, and mode of

conviction accounted for much, but not all, of the variation in the use of sentencing options. Judges

are more willing to consider community placement for offenders who are employed, who plead
 USSG §5C1.1, comment. n. 7. 131

 18 U.S.C. § 3553(a) requires judges to “impose a sentence sufficient, but not greater 132

than necessary, to comply with the purposes” of sentencing. When determining “the particular

sentence to be imposed” the court shall consider “the kinds of sentence and the sentencing range

established” by the guidelines. 

109

guilty, and who played a lesser role in their offense. The guidelines themselves discourage judges

from using a probationary sentence for offenders with a criminal history category of III or above.

131

Placement within the guideline range. For offenders who do not receive a sentencing option

or a departure, judges must decide on a term of imprisonment within the prescribed guideline range.

The Sourcebook of Federal Sentencing Statistics provides the percentage of offenders who are

sentenced at the bottom, lower half, middle, upper half, or top of the guideline range for 32 different

offense categories (USSC, 2002, Tbl. 29). Overall, in 2002, 59.8 percent of offenders were

sentenced at the bottom of the ranges, 14.8 in the lower half, 8.9 percent at the middle, 6.4 percent

in the upper half, and 10.1 percent at the top of the range. This distribution is slightly skewed to the

bottom of the range compared to state guidelines systems on which data are available. For example,

the Virginia Criminal Sentencing Commission reports that in fiscal year 2003, 65 percent of

offenders were sentenced below the midpoint, 16 percent at the midpoint, and 19 percent above the

midpoint (Virginia Criminal Sentencing Commission, 2003, p. 18).

Judges in different guidelines systems, and different judges in the federal system, varyin how

they approach the guideline range. In some state guidelines systems, the presumptive sentence is in

the middle of the guideline range. (See e.g., Kansas Sentencing Commission, 2002, p. 42;

Pennsylvania Commission on Sentencing,

2000.) Judges use the lower and upper ends of

the range for mitigated and aggravated

sentences that do not rise to the level of a

departure. In other systems, including the

federal system, the bottom of the range is most

typically used. 

132

There appears to be general consensus among federal judges about how to approach the

guideline range. In addition, plea agreements often specify where in the guideline range the parties

agree the sentence should fall. Only a few judges use another part of the guideline range more

frequently than the bottom of the range. Among the 911 federal judges who sentenced at least ten

cases between 1999 and 2001, the bottom of the range was the most typical sentence for 880 of them.

Twenty-four judges, however, most typically sentenced between the bottom and midpoint of the

range, while two most typically sentenced between the midpoint and the top. Just one judge used

the midpoint of the range most frequently, while four judges sentenced at the top of the range most

frequently. It seems likely that judicial sentencing philosophy, rather than differences among the

types of cases sentenced, account for these different approaches to the guideline range. While

Different guidelines systems, and to a

minor extent different federal judges,

use the guideline range differently.
 518 U.S. 81 (1996). 133

110

generating a form of inter-judge disparity, these atypical practices are not widespread and fall within

the range of discretion reserved for judges by the SRA. 

5. Departures for Exceptional Circumstances

Commentators (Berman, 2000) and empirical analyses have suggested that departures for

aggravating and mitigating circumstances articulated by the judge could be a continuing source of

unwarranted sentencing disparity in the guidelines system (Gelacak et al., 1996; Farabee, 1998;

Adams, 1998). Congress enacted the PROTECT Act to further limit the circumstances when

downward departures are authorized. The Act became effective on April 30, 2003, and the

Commission’s guidelines amendments pursuant to it became effective October 27, 2003, after the

data for this report were collected. Thus, the effects of the Act are not addressed in this report.

Research on sentencing practices prior to the Act suggest that downward departures may well be

contributing to inter-judge and regional disparities, but that the reasons for variations in downward

departure rates have been poorly understood. 

The Commission’s report on departures. As part of its Fifteen-Year Evaluation of the

guidelines system, the Commission published a special report, Downward Departures from the

Federal Sentencing Guidelines (USSC, 2003), which discussed the PROTECT Act and some of the

concerns that motivated it. Empirical analyses presented in the report demonstrate that the number

of cases sentenced within the guideline range decreased from 1991-2001. Until 1994 this decrease

was attributable largely to an increase in departures for substantial assistance to the government, but

after 1995 these departures declined slightly and other downward departures for mitigating

circumstances began to increase. 

Rates of departure vary by offense

type, with the rate of departure for

immigration offenses increasing

substantially over the same years that the

number of immigration offenses increased

substantially. Rates of departure also vary

dramatically from district to district. While a clear majority of districts in 2001 had mitigating

circumstance departure rates of less than ten percent, a quarter had rates of 10-20 percent and the

remainder had rates even higher. Three districts had rates over 50 percent.

The Commission’s departure report discussed several possible reasons for the increasing

departure rate, as well as the concerns raised during debates preceding passage of the PROTECT

Act. The Supreme Court’s decision in Koon v. United States, which held that an abuse of 133

discretion standard applied to appellate review of departures, was discussed in Congress as a cause

of increased departures. However, the Commission’s report cited evidence suggesting that the

impact of Koon was negligible. The report also showed that appeals of downward departures by the

Several possible factors have contributed

to the increases and variations in

downward departure rates.
111

government were rare both before and after the Koon decision, only ranging between 25 and 43 cases

per year in five recent years. The data suggested that in 2001, the government initiated at least 40

percent of all downward departures for mitigating circumstances, often as part of an early disposition

program or other guilty plea arrangement. The rate of downward departures for reasons other than

substantial assistance that were not initiated by the government appeared to be approximately 10.9

percent in 2001.

The causes of variation in the rates of departure, and their potential effect on unwarranted

sentencing disparity, is a complicated issue that cannot be resolved through simple examination of

the reported rates. Problems with document submission (Mercer, 2003) and data accuracy (GAO,

2003) also complicate careful analysis. The strengthened reporting requirements put in place by the

PROTECT Act and data collection improvements undertaken by the Commission are expected to

address some of these concerns. When assessing the role of departures in creating unwarranted

sentencing disparity during the first fifteen years of guidelines sentencing, however, caution is

advisable and caveats are unavoidable.

District factors influence the rate of departure more than circuit factors. For this report,

a new analysis using a hierarchical model compared the amount of variation in departure rates

associated with circuits with the amount associated with districts. (Details can be found in Technical

Appendix D.) The case law governing various grounds for departure varies somewhat from circuit

to circuit (Nagel & Galacek 1996; Lee 1997; Johnson 1998) and different circuits have been

recognized as having different climates or “personas” regarding their amenability to departure

(Demlietner, 1994). But resultsfrom the hierarchical analysis suggest that differences in circuit case

law or climate, while exerting some significant influence over departure rates, are less important than

differences among the districts. Only about one quarter of the variation in downward departure rates

is attributable to the circuits, while three quarters is attributable to districts. 

The GAO’s exploration of regional variations. Recent research by the GAO investigated

how much regional variation in departure rates can be accounted for by differences in offense and

offender characteristics (GAO, 2003). The GAO found “major variation among certain judicial

circuits and districts” (id. at 3-4) in the likelihood of departure in drug trafficking cases, even after

controlling for a variety of offense and offender characteristics, including the type of drug involved,

the presence of a weapon, the severity of the offense, whether the defendant pled guilty, and whether

the offense was eligible for a mandatory minimum penalty or the safety valve. Differences among

circuits and districts in the likelihood of departure were usually reduced after controlling for these

characteristics, indicating that some of the regional variation is due to the different types of cases and

offenders in the various regions. Significant regional variation remained, however. For example,

downward departure remained 6.78 times more likely in the Ninth Circuit than in the Eighth, even

after controlling for offense and offender characteristics. 

 Because “empirical data on all factors that could influence sentencing were not available”

the GAO noted that the remaining differences “may not, in and of themselves, indicate unwarranted

sentencing departures or misapplication of the guidelines.” AstheCommission noted in its response
112

to the draft GAO report, several factors that might help account for regional variation in departure

rates were not included in the GAO’s analysis. Most noteworthy, the GAO did not take into account

the existence in several districts of formal, government-created “fast track” programs that offer

departures as part of a plea agreement as an incentive for quick waiver of certain defendant rights.

USSC replication and extension of the GAO analysis. To estimate the impact of “fast

track” on regional variation in departure rates, the GAO’s analysis was replicated including a

variable indicating whether a “fast track” program involving departures was in place in a particular

district. A letter from the Department of Justice to the Commission on August 12, 2003 was used

to identify those districts having such programs during the years of our analysis. The results show

that regional variation in downward departure rates is greatly reduced when the presence of “fast

track” programs in some districts is taken into account. In particular, the increased odds of departure

in the Fifth, Ninth, and Tenth Circuits (when compared to the Eighth Circuit, the same circuit used

for comparison in the GAO report) are reduced by more than two-thirds. The variation in departure

rates accounted for by “fast track” programs is much greater than the variation accounted for by all

of the offense and offender characteristics included in the GAO’s analysis combined. 

However, while the highest departure rates are clearly due to the presence in some districts

of “fast track” programs, significant variation remains after controlling for these programs. The odds

of receiving a downward departure for mitigating circumstances remain over three times higher in

the Ninth Circuit than in the Eighth, almost three times higher in the Second, and two times higher

in the DC circuit. In the Fifth Circuit, on the other hand, the odds of departure are just 17 percent

that of the Eighth Circuit. As noted above, however, district practices are more important than

circuit factors in determining the departure rate. Within the Ninth Circuit, the odds of departure vary

from Montana, with odds less than half those found in the District of Minnesota (again, the

comparison districts used by the GAO) to almost twice the odds in the Northern District of

California. (Arizona and Southern California were excluded due to the unusual case types and

workload found in these border districts.) Similarly, while most of the districts in the Fourth Circuit

have lower odds of downward departure than Minnesota, the District of Maryland has slightly higher

odds. Clearly, practices particular to each district have a substantial impact on the departure rates in

those districts. 

Continuing debate over which regional variations are warranted. Identifying the reasons

for regional variation in departure rates will not settle the policy question of whether the variation

is warranted or unwarranted. Numerous commentators have argued that some regional variation is

warranted by local conditions. In addition to different workload pressures (Braniff, 1993)

commentators have suggested that different crimes generate different levels of public concern in

different regions, which should be reflected in the sentences imposed (Broderick, 1993; Ragee 1993,

Sifton, 1997). It has also been argued that departure can be used to ameliorate the unwarranted

disparity that can arise when some offenders are prosecuted in federal court while others are

prosecuted in state court where sentences are more lenient (O’Hear, 2002). Regional variation in

sentencing has been, and will likely continue to be, a lively area of research and debate. 
 28 U.S.C. § 994(d). 134

113

Chapter Four: 

Racial, Ethnic, and Gender Disparities

In Federal Sentencing Today

A. Examining Group Differences

1. Disparity, Discrimination, and Adverse Impacts

Fair sentencing is individualized sentencing. Unwarranted disparity is defined as different

treatment of individual offenders who are similar in relevant ways, or similar treatment of individual

offenders who differ in characteristics that are relevant to the purposes of sentencing. Membership

in a particular demographic group is not relevant to the purposes of sentencing, and there is no

reason to expect—and some might argue no to reason to care—if the average sentence of different

demographic groups are the same or different. As long as the individuals in each group are treated

fairly, average group differences simply reflect differences in the characteristics of the individuals

who comprise each group. Group disparity is not necessarily unwarranted disparity.

Discrimination. Sadly, however, history teaches that sometimes individuals are treated

differently because of the racial, ethnic, or gender group to which they belong. The SRA singles out

a number of demographic characteristics for special concern, directing the Commission to “assure

that the guidelines and policystatements are entirelyneutral as to the race, sex, national origin, creed,

and socioeconomic status of offenders.” Different treatment based on such characteristics is 134

generally called discrimination (Blumstein, 1983). Discrimination may reflect intentional or

conscious bias toward members of a group, or it may result from a distortion of rational judgment

by unconscious stereotypes or fears about a group or greater empathy with persons more similar to

oneself. Whatever the cause, discrimination is generally considered the most onerous type of

unwarranted disparity and sentencing reform was clearly designed to eliminate it. 

Adverse impacts. In addition to discrimination, group differences may reflect a different type

of problem. In its 1995 report to Congress, Cocaine and Federal Sentencing Policy (1995), the

Commission recognized that discrimination cannot be the sole concern of those interested in fair

sentencing. If a sentencing rule has a disproportionate impact on a particular demographic group,

however unintentional, it raises special concerns about whether the rule is a necessary and effective

means to achieve the purposes of sentencing. In its cocaine reports, the Commission was addressing

the sentencing of crack cocaine defendants (over eighty percent of whom are Black) who are given

identical sentences under the statutes and the guidelines as powder cocaine offenders who traffic 100
114

times as much drug (the so-called 1-to-100 quantity ratio). Congress chose to more severely penalize

those dealing in crack cocaine because of a perception that crack had proven peculiarly harmful. The

Commission stated that “the high percentage of Blacks convicted of crack cocaine offenses is a

matter of great concern. . . . [W]hen such an enhanced ratio for a particular form of a drug has a

disproportionate effect on one segment of the population, it is particularly important that sufficient

policy bases exist in support of the enhanced ratio.” (USSC, 1995, p. xii.) For these reasons, the

Commission carefully analyzed the relative harmfulness of the two forms of cocaine in its reports

to Congress to arrive at its recommendation that cocaine sentencing be reconsidered (USSC, 1995,

1997, 2002). 

 

This principle—that rules having a disproportionate impact on a particular group be

necessary to achieve a legitimate purpose—is found in other legal contexts, such as employment law.

The individual and societal interests at stake in criminal sentencing are even greater than in the

employment context, and a similar analysis can apply and has been used in several criminal justice

contexts (Gastwirth & Nayak, 1997). Sentencing rules that are needed to achieve the purposes of

sentencing are considered fair, even if they adversely affect some groups more than others. But if

a sentencing rule has a significant adverse impact and there is insufficient evidence that the rule is

needed to achieve a statutory purpose of sentencing, then the rule might be considered unfair toward

the affected group. These distinctions between warranted and unwarranted group differences, and

between discrimination and adverse impacts, will be used in the examination of group differences

in this chapter.

2. A Growing Minority Caseload

Elimination of any vestiges of discrimination and reduction of unsupportable adverse impacts

are especially important as the proportion of minorities in the federal offender population grows.

Figure 4.1 shows the percentage of federal offenders in each of the three major racial and ethnic

groups sentenced in the federal courts from 1984 until 2001. (Unlike the Bureau of Prisons, the

Commission classifies Hispanic offenders based on national origin, regardless of race. Thus, the

White, Black, and Hispanic categories are mutually exclusive.) While the majority of federal

offenders in the preguidelines era were White, minorities dominate the federal criminal docket today.

Most of this shift is due to dramatic growth in the Hispanic proportion of the caseload, which has

approximately doubled since 1984. This growth is due in large measure to the growth of

prosecutions for immigration law violations.

A small but significant proportion of the federal caseload consists of Native Americans, who

are included along with Asians and Pacific Islanders in the “other” category on the chart. Due to the

special federal jurisdiction over Native American lands, they are subject to federal prosecution for

many offenses, such as motor vehicle homicide or sexual assault, that are usually prosecuted in the

state courts when committed by other groups. The Commission formed a special Native American

Advisory Group to address the concerns of the Native American community, and their 2003 report

is available on the Commission’s website at http://www.ussc.gov/NAAG/NativeAmer.pdf.
115

3. A Growing Gap in Sentencing 

Figure 4.2 displays trends in average sentences for the three major racial and ethnic groups

from the preguidelines era through the first fifteen years of guidelines implementation. The gap

between White and minority offenders was relatively small in the preguidelines era. Contrary to

what might be expected at the time of guidelines implementation, which was also the period during

which large groups of offenders became subject to mandatory minimum drug sentences, the gap

between African American offenders and other groups began to widen. The gap was greatest in the

mid-1990s and has narrowed only slightly since then. Similar gaps or disproportionalities can be

observed in the proportion of majority versus minority offenders who receive non-imprisonment

sentences instead of prison terms. 
116

What explains the gap? A great deal of research over many decades, in both state and

federal courts, has established that most of any gap between majority and minority offenders reflects,

to a great extent, legally relevant differences among individual group members in the types of crimes

committed and in criminal records (Hagen, 1974; Spohn, 2000). No careful student of sentencing

research seriously disputes this finding. A great deal of controversy remains, however, over how

much, if any, of the gap remains after accounting for the effects of legally relevant factors, and

whether any of this gap is due to discrimination on the part of judges. This question remains an

active area of research both within the Sentencing Commission and in outside agencies and among

academic researchers. 

The definitions discussed at the beginning of this chapter give us three possible explanations

for the gap among Black, Hispanic, and other offenders: 

" Fair differentiation: Offenders receive different treatment based on legally relevant

characteristics needed to achieve the purposes of sentencing. 

" Discrimination: Offendersreceive different treatment based on their race, ethnicity,

gender, or other forbidden factors.

" Unsupportable adverse impact: Offenders receive different treatment based on

sentencing rules that are not clearly needed to achieve the purposes of sentencing.
117

The remainder of this chapter details the evidence regarding how much each of these

explanations contributes to the gap among different demographic groups in federal sentencing today.

General conclusions can be summarized at the outset. Most of the gap among different groups

resultsfrom fair differentiation among individual offenders in the seriousness of their crimes and in

their criminal histories. Discrimination on the part of judges contributes little, if any, to the gap

among racial and ethnic groups. Discrimination, in the form of paternalism, may make a small but

significant contribution toward more lenient treatment of female offenders. 

A significant amount of the gap between Black and other offenders can, however, be

attributed to the adverse impact of current cocaine sentencing laws. In addition, other changes in

sentencing policies over the past fifteen years, particularly the harsher treatment of drug trafficking,

firearm, and repeat offenses, have widened the gap among demographic groups. Whether these new

policies contribute to crime control or to fair and proportionate sentencing sufficiently to outweigh

their adverse impact on minority groups should be carefully considered by policymakers.

B. Studying Racial, Ethnic, and Gender 

Discrimination in Sentencing

1. Continuing Concern in the Guidelines Era 

Concern over possible racial or ethnic discrimination in federal sentencing remains strong

today, fifteen years after implementation of guidelines designed to eliminate it. No sentencing issue

has received more attention from investigative journalists or scholarly researchers. In recent years,

feature articles in major newspapers have undertaken analyses of federal sentences and concluded

that racial discrimination persists (Frank, 1995; Flaherty & Casey, 1996). Support for these

allegations has been strengthened by academic researchers who reached similar conclusions in

studies presented at conferences and published in professional journals (Albonetti, 1997, 1998;

Hebert, 1998; Steffensmeier & Demuth, 2000, 2001; Kautt & Spohn, 2002; Mustard 2001; KempfLeonard & Sample, 2002; Everett & Wojtkiewicz, 2002; Schanzenbach, 2004; Spohn, 2004). 

Gender discrimination has received less attention but also has generated an interesting range

of views (Daly, 1995). Arguments that women properly should receive more lenient sentences based

on their status as women has been criticized by advocates of formal neutrality (Nagel & Johnson,

1994; Segal, 2001) but defended by others who see women as often playing more mitigated roles in

their offenses, or as having, because of their status as women, more family responsibilities that may

justify more lenient sentences (Raeder 1993, Coughenour, 1995; Wald, 1995). Others have argued

that gender differences should not be seen as representing excessive leniency for women but as

excessive harshness for men, who are often subject to the same pressures and responsibilities as

women (Daly & Tonry, 1997). 
118

It is clear that the Commission must address these concerns and identify whether

discrimination based on demographic status persists and, if so, how it is manifested and what can

be done to eliminate it. 

2. Research on Discrimination under the Guidelines

Proving discrimination is difficult if a decision maker chooses to hide it or is not even aware

of it, but researchers have developed statistical methods that are widely accepted as means for

inferring conscious or unconscious bias. The general approach is to examine a large number of cases

and measure the influence of the legally relevant characteristics on the types and lengths of sentences

imposed. The average sentences of different racial, ethnic, or gender groups are then compared after

accounting for the effects of legally relevant factors. If, for example, men on average receive longer

sentences than women, even after controlling for differences in the types of crimes they commit and

in their criminal records, then we may infer that sentences are influenced by gender or something

correlated with gender. 

The advent of sentencing guidelines has been a boon to this kind of research. By definition,

the guidelines identify almost all of the factors that are legally relevant to the sentencing decision

(factors that may justify a departure are an exception). Like other sentencing commissions, the

United States Sentencing Commission collects and disseminates large datasets that can be used to

study federal sentencing decisions, and many researchers have used these data to study

discrimination. Almost twenty different studies have addressed racial, ethnic, or gender

discrimination in federal sentencing using these datasets in the fifteen years since full

implementation of the guidelines. (They are listed in the bibliography, Appendix A.) 

The studies agree on several general points. First, legally relevant considerations account for

by far the largest share of variation in sentences among federal defendants. When disparity is found,

it is more prevalent in cases receiving a departure than in cases sentenced within the guideline range.

And unexplained differences in the sentencing of women compared to men are greater than any

unexplained differences in the sentencing of

different racial and ethnic groups. On other

important questions, however, the studies

diverge. Different studies yield different

answers as to whether discrimination influences

sentences at all and, if so, how much. These

studies also disagree on which racial and ethnic

groups are discriminated against and exactly

where in the criminal justice process this discrimination occurs. Some of the variation in

conclusions results from differences among authors in how they define disparity and discrimination.

Many of the differences, however, result from the different research methodologies employed. 

The studies agree that legally relevant

considerations account for the largest

share of variation in sentences among

federal defendants
119

Limitations in previous research. Several problems have plagued much of the existing

research into discrimination in federal sentencing. Most difficult to overcome is the lack of good

data on all the legally relevant considerations that might help explain differences in sentences. The

lack of data is especially severe regarding circumstances that might justify departure from the

guidelines. Since these circumstances are, by definition, expected to be unusual or atypical, data on

them is not routinely collected. (Data are collected on the reasons for departure in cases that receive

one, but whether the same circumstances are present in cases that do not receive a departure is not

routinely collected.) This lack of data can cause some legally appropriate differentiations among

offenders to appear as discrimination. 

In addition, because we lack data on case characteristics that might justify departure in some

cases, several researchers have ignored departures when modeling the legally relevant factors that

might explain differences among groups, or have treated departure and non-departure cases

separately. Given the known disproportionate rates of departure among different racial and ethnic

groups (Kramer & Maxfield, 1998; Adams, 1998), failure to include departure status as a control

variable inevitably leads to race and ethnicity effects. But these effects may, in fact, reflect the

legally relevant differences among offenders that cause judges to depart in some cases but not in

others. 

Other problems with previous research include the complexity of the federal guidelines

system and its interactions with mandatory minimum statutes. Mustard (2001) described the nonlinear relationship between offense level and sentence length and offered one approach to model it.

Hofer and Blackwell (2000) described the effects of mandatory minimum statutes that trump the

guideline range in some cases. For example, conviction under a mandatoryminimum statute has no

effect in cases where the guideline range is higher than the minimum penalty, but in other cases the

mandatory minimum penalty “trumps” the guideline range and forces judges to impose higher

penalties than required by the guidelines. Simply including, in a standard regression equation, a

variable indicating the presence of a mandatory minimum penalty will mis-specify these important

legal differences among cases. Because mandatory minimum penalties disproportionately apply to

minority offenders, failure to correctly specify these complex legal interactions will lead to

exaggerated race and ethnic effects.

In an important article recommending a new approach to studying disparity in a guidelines

system, Engen and Gainey (2001) argued that previous findings on disparity under sentencing

guidelines had to be reconsidered. 

Conventional approaches to modeling the effects of these variables on sentencing are

not adequate in this context because they fail to specify the relationships prescribed

by law between offense severity, offender history, and sentencing outcomes. As a

result, extant research on the effects of legal and extralegal factors, in the context of

guidelines, may have produced biased estimates and reached erroneous conclusions.

p. 1208.
120

A new “presumptive sentence” model for the federal courts. The method suggested by

Engen and Gainey, the “presumptive sentence” model, can be modified to solve several, although

not all, of the problems that plagued earlier research on discrimination in federal guidelines

sentencing. Legally relevant factors, and the complex interactions among them, can be specified

with a single independent variable representing the “presumptive sentence,” i.e., the minimum

months of imprisonment required by the guidelines or any trumping mandatory minimum penalty

applicable in the case. The effects of variations in departure rates among groups can be accounted

for by including variables representing whether a particular defendant received any of the three types

of departure. In effect, the model predicts that each defendant will receive the minimum penalty

required by law unless they receive a departure, in which case their sentence will be reduced or

increased by the average length for that type of departure among all offenders who receive one. 

Once race, ethnicity, and gender are added to the model, we can investigate whether judges

systematically vary from the model’s prediction to the disadvantage of any group. Use of the

presumptive sentence model solves the problem of non-linearity noted by Mustard (2001), and also

can control for the effects of trumping mandatory minimums described by Hofer and Blackwell

(2000). Engen and Gainey showed that a presumptive sentence model out-performed (that is,

accounted for more of the variation in sentences) than other approaches when studying disparity in

Washington state. They also demonstrated that previous research using models that failed to address

the non-linearity problem had exaggerated racial and ethnic effects. The presumptive sentence

model cannot overcome a lack of complete data on all legally relevant considerations that might

influence judges, but it is the best available method for investigating discrimination in federal

sentencing today. 

C. Results from Recent Research

1. Racial and Ethnic Disparity

The best-performing model. Commission staff have used the presumptive sentence

approach to test whether there is evidence ofsystematic discrimination against minorities or men in

federal sentencing today. Details of the data and statistical models used can be found in Hofer and

Blackwell (2002) and in Technical Appendix D. Analyses were performed using data on U.S.

citizens sentenced under the guidelines in five recent years. (Inclusion of non-citizens, who are often

non-White, confounds race and ethnicity effects with those of citizenship, detention prior to

sentencing and pending deportation, lack of a U.S. residence, and other factors.) The Commission’s

statistical model out-performed any other reported in the published research, accounting for over 80

percent of the variation in sentences imposed—an excellent result for regression research of this

kind, and a measure of how thoroughly we understand the factors affecting federal sentencing today.

In order to get a sense of the relative degree to which various offender characteristics

influence the sentencing decision, the model included—in addition to each offender’s race,
121

ethnicity, and gender—their age, college attendance, and whether they supported any dependents.

To assess whether judges weigh some legally relevant factors differently than the guidelines rules

themselves, several such factors were included in the model along with the presumptive sentence.

These included the general type of offense (property, drug, white collar, or other), the type of drug

involved in drug offenses, the offenders’ criminal history, whethertheypled guilty, and whether they

received a guideline adjustment for possession or use of a firearm. 

The decision to imprison. Figures 4.3 and 4.4 display the results of the Commission’s

analysis of judges’ decisions to use sentencing options other than imprisonment in those zones of

the Sentencing Table where options are permitted. Figure 4.3 presents the percentage increase or

decrease in various groups’ odds of going to prison in comparison to a contrast group. Odds for

Blacks and Hispanics are compared with those for Whites, odds for offenders with no dependents

are contrasted with those with dependents, odds for offenders with some college are compared with

those who did not attend college, and odds for men are compared with women. In addition, for each

of these five groups, which are listed along the bottom of the chart, results are further broken down

into three offense groupings indicated with different bars. Reading from left to right, the black bar

in each group represents results for the overall caseload, the white bar represents results for drug
122

offenses only, and the striped bar indicates non-drug offenses. Only results that are statistically

significant are displayed: a missing bar means that the result for that group was not significantly

different from their contrast group.

Beginning with results for Blacks and Hispanics on the left side of Figure 4.3, the black bars

show that when considering the overall caseload, a typical Black or Hispanic offender has somewhat

greater odds of being imprisoned when compared to a typical White offender. (“Typical” in this

sense is an offender who has average values on all the other explanatory variables, such as an offense

of average seriousness.) However, the white bars and the missing striped bars indicate that these

greater odds are restricted entirely to drug trafficking offenses. The odds of a typical Black drug

offender being sentenced to imprisonment are about 20 percent higher than the odds of a typical

White offender, while the odds of a Hispanic drug offender are about 40 percent higher. The relative

importance of race and ethnicity can be further evaluated by comparing it with the effects of having

dependents or attending college. These factors reduce the odds of imprisonment for all types of

cases, but generally by a smaller amount. 

Figure 4.4 displays the results of separate analyses for males and females in each group. The

white and black bars show that it is male Black and Hispanic offenders who have greater odds of

imprisonment than White males. Female Black and Hispanic offenders actually have somewhat
 18 U.S.C. § 3142(e). 135

123

lower odds of imprisonment than their White counterparts. While the benefit of having dependents

or attending college is shared by both males and females, the disadvantage of being Black or

Hispanic is borne entirely by males. Additional discussion of gender effects is found in a later

section of this chapter.

Percentage changes in odds of the type reported in Figures 4.3 and 4.4, although common in

the research literature, are notoriously difficult to interpret. An increase in odds does not directly

equate with an increase in relative risk of imprisonment (Baldus, et al., 1990); nor does 40 percent

increased odds mean that 40 percent more Hispanic offenders are imprisoned than White offenders.

Langan (2001) has warned that reliance on odds ratios in reporting results of disparity research can

easily lead to an overestimation of the importance of a factor in decision-making. He has supplied

a method for translating odds ratios into measures of the “proportional reduction in error.” Using

this method, the odds ratios were translated into estimates of the number of offenders for whom

knowledge of race or ethnicity improves the ability to predict who receives sentences of

imprisonment instead of alternatives. Knowledge of race or ethnicity helps account for the

imprisonment decision in under twenty cases sentenced in the three years included in the analysis.

Some of the effects we observed could be due to unmeasured, but possibly legitimate,

considerations that are correlated with gender, race, or ethnicity. If women are more likely to have

child-rearing responsibilities that lead to longer departures, this would appear in our data as a gender

effect. Another such possibility results from a presentencing decision: whether to detain offenders

at their bail hearing rather than release them awaiting conviction and sentencing. Some offenders

are routinely detained due to statutory presumptions in favor of detention for certain classes of

crime, or for other factors, such as risk of flight. Some of these detained offenders, who might 135

otherwise have received probation or non-imprisonment options under the guidelines, are

subsequently sentenced to prison “time served” upon conviction. If minority offenders are

disproportionately represented among this group, it would appear as a race or ethnicity effect in this

analysis. 

The length of imprisonment. For offenders whom judges choose to incarcerate, the question

is whether similar offenders receive similar prison terms, or whether there are average differences

among groups that cannot be accounted for by legally relevant characteristics. Figures 4.5 and 4.6

display differences in the lengths of sentence, expressed as a percentage of the average sentence,

imposed on various groups compared to the same contrast groups as Figure 4.3 and 4.4. The black

bar again shows differences for all offenses combined, the white bar shows drug offenses only and

the striped bar shows non-drug offenses. 

For Black offenders, the results are once again limited to drug trafficking offenses and to

male offenders. The typical Black drug trafficker receives a sentence about ten percent longer than

a similar White drug trafficker. This translates into a sentence about seven months longer. A similar

effect is found for Hispanic drug offenders, with somewhat lesser effects also found for non-drug
124
125

and female Hispanic offenders. The race and ethnicity effects for drug offenders are greater than the

effects of college attendance or having dependents. 

Because the presumptive sentence model predicts that the sentence imposed will be the

minimum sentence required by law adjusted uniformly for any departure that was granted, the effects

we observe can arise in only two ways. Judges can 1) place some offenders above the presumptive

sentence, that is, above the bottom of the guideline range or the minimum statutory penalty, or 2)

depart from the guidelines non-uniformly. Because variables that indicate whether an offender

received any of the three types of departure are included in the model, differences in departure rates

among the groups are controlled in this analysis. Any departure effect must therefore arise from

differences in the average extent of departure among the groups. These findings indicate that all

types of Hispanic offenders are placed above the minimum required sentence more frequently than

similar White offenders, or receive somewhat lesser reductions when receiving a downward

departure. The same is true of Black drug trafficking offenders and Black males. Research

regarding both of these possibilities is reported later in this chapter. 

As with the analysis of the decision to incarcerate, it is possible that differences among

groups in legally relevant characteristics on which we have no data may account for these findings

in whole or in part. There may be differences among groups in numerous factors that judges

legitimately may consider when deciding where to sentence within the guideline range or how far

to depart. These could include differences in the seriousness of the offenses committed by the

groups, or in their criminal histories, that are not adequately captured by the guideline offense level

and criminal history score. Particularly with regard to departures, there may be differences in the

kind and degree of aggravating or mitigating factors present in the cases. For motions based on a

defendant’s substantial assistance to the government, there could be differences in the type and

degree of the offender’s cooperation. 

Do these findings confirm the discrimination hypothesis? While any unexplained

differences in the likelihood of incarceration or in the lengths of prison terms imposed on minority

and majority offenders is cause for examination, there is reason to doubt that these racial and ethnic

effects reflect deep-seated prejudices or stereotypes among judges. Most noteworthy is that the

effects, which are found only for some offense types and for males, are also unstable over time.

Separate year-by-year analyses, presented in Figure 4.7, reveals that significant differences in the

likelihood of imprisonment are found in only two of the last five years for Black offenders, and four

of the last five for Hispanic offenders.

As shown in Figure 4.8, the effects on sentence length are more persistent, but disappear for

both Black and Hispanic offenders in the most recent year for which data are available. Offense-tooffense and year-to-year fluctuations in racial and ethnic effects are difficult to reconcile with

theories of enduring stereotypes, powerlessness, or overt discrimination affecting sentencing of

minorities under the guidelines.
126
127

Skepticism that discrimination is a significant factor in sentencing under the guidelines is

further reinforced by the findings of McDonald and Carlson (1993), the GAO (1992), and by

previous work at the Commission (Katzenelson & Conley, 1997). McDonald and Carlson (1993)

found some race effects in some years for some kinds of offenses, but none in other years or with

other types of offenses. They warned “[a]ny findings that are sensitive to minor changes in model

specification such as these must be interpreted with caution” (p. 106). Katzenelson and Conley

found that when they learned more about specific court practices, findings that at first appeared to

indicate discrimination turned out to reflect benign court practices that may have actually benefitted

minorities. In their analysis of sentencing in the Ninth Circuit, Hispanic drug trafficking offenders

received sentences averaging about five months longer than Whites. But further investigation

revealed that one district charged drug couriers caught crossing the border from Mexico with

significant amounts of drugs only with drug possession instead of the more serious charge of drug

trafficking. The offense level of these largely Hispanic offenders (based on the drug possession

guideline) under-represented the seriousness of their actual offense and their sentences tended to be

higher than “similar” offenders at the same level. Due to the charging practices in that district, the

presumptive offense level misrepresented the true seriousness of the offense and judicial

compensation (sentencing higher than the presumptive sentence) appeared in the statistical analysis

as an ethnicity effect. 

Perhaps the best conclusion is that if discrimination affects the decisions of even some judges

in some cases, the number of cases affected is small and the size of the effect is relatively minor

compared to the consistent importance of the seriousness of the offense and the criminal history of

the offender. As discussed in the final section of this chapter, discrimination contributes less to the

gap between majority and minority offenders than do certain of the sentencing rules themselves,

some of which may arguably represent an institutionalized unfairness that is a greater cause for

concern than is discrimination by individual judges. 

2. Gender Disparity

Like the gap between Black offenders and other groups, the gap in average prison terms

between male and female offenders has widened in the guidelines era, as shown in Figure 4.9.

Unlike race and ethnic discrimination, however, the evidence is more consistent that part of this gap

is due to different treatment of offenders based on their gender. The group on the right side of Figure

4.3 compares the odds of imprisonment for men with those of women for the overall caseload, drug

trafficking offenses, and non-drug offenses. Gender effects are found in both drug and non-drug

offenses and greatly exceed the race and ethnic effects discussed above. The typical male drug

offender has twice the odds of going to prison as a similar female offender. The group at the right

of Figure 4.5 shows the results for length of imprisonment. Sentence lengths for men are typically

25 to 30 percent longer for all types of cases. Additional analyses show that the effects are present

every year. 
128

Consistent with these results from the presumptive sentence model, women have been shown

in previous research to receive sentences at the bottom of the applicable guideline more frequently

than men (Newton, et al., 1995) and to receive proportionately larger reductions when granted a

downward departure (Kramer & Maxfield, 1997). 

Whether these patterns of more lenient sentencing for women reflect unwarranted disparities

or legitimate sentencing considerations that happen to disproportionately benefit women has been

the subject of lively debate. Analyses of data and case law have suggested that judges’ paternalistic

attitudes toward women might hold women to be more vulnerable and sympathetic and less

responsible than men (Nagel & Johnson, 1994; Segal, 2000; Schazenbach, 2004). Differences may

arise from enduring attitudes that hold women more responsible for child care. 

Part of the more lenient treatment may arise, however, from differences between the genders

that are relevant to sentencing but not well captured by the available data. Several commentators

have noted that women offenders are often among the least culpable members of criminal

conspiracies, yet are subject to lengthy sentences due to the conduct of their accomplices, on whom

they may be emotionally or financially dependent (Demleitner, 1995). Judges may seek to mitigate
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the effects of strict application of the guidelines rules based on female offenders sometimes being

dominated by more culpable male accomplices. There is also reason for judges to believe that

women are more instrumental in raising their children than their male counterparts (Wald, 1995;

Raeder, 1993), and may suffer more from imprisonment than do men due to greater separation from

their families caused by the relative scarcity of prisons for women (Seldin, 1995). 

3. Research on Departures, Sentencing Options, and Placement 

within the Guideline Range

Like the presentencing stages reviewed in Chapter Three, sentencing under the guidelines is

actually a series of separate decisions. These include individual fact-findings, guideline

interpretations, and the important decision whetherto depart from the guideline range in exceptional

cases or, where departure is not appropriate, where to place the offender within the guideline range

and available options. Many of these separate decisions have themselves been the subject of

empirical research designed to illuminate, as best as possible with available data, the factors

influencing the decision and whether racial or ethnic disparity may be present.

The decision to depart and how far. Departures have been the subject of several empirical

analyses investigating possible racial, ethnic, and gender disparities. The GAO (1992) used a

standard multivariate approach to examine if demographic characteristics account for whether an

offender receives a downward departure for reasons other than substantial assistance, after

controlling for offense seriousness, criminal history, offense type, and mode of conviction (i.e.,

whether defendant pled guilty or went to trial). The sample used in the study was not sufficient to

permit controlling for all the legally relevant factors simultaneously, so analyses were performed

using each control variable one at a time. The findings were described as tentative and preliminary,

but the researchers reported that race, gender, age, and other extra-legal factors did not affect

likelihood of departure.

A more recent analysis by Adams (1998) reached the opposite conclusion. In a regression

analysis, both race and gender predicted whether a defendant would receive a departure after

controlling for a long list of offense and criminal history factors. Blacks were less likely than nonBlacks (odds ratio of .71), and women were more likely than men, to receive downward departures.

Women and Hispanics were less likely to receive upward departures. Some of the demographic

effects were found to remain significant when specific offense types were examined. Adams also

examined the variation in the extent of departure. Among the entire population, gender was

significant in predicting both downward and upward departure length, while race was not. The only

demographic variable significant for specific offense types was that Hispanics received lengthier

departures in fraud cases. 

Maxfield and Kramer (1998) also used regression analyses to predict the extent of departure

in substantial assistance cases, using various guideline offense characteristics as control variables.

Rather than predicting months of departure, they predicted the percentage reduction of the sentence

from the minimum in the otherwise-applicable guideline range. Women received larger reductions,
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especially in drug trafficking cases, where their reduction was 10 percent larger than men’s. Race

and ethnicity was also significant in drug trafficking, with Whites receiving reductions three percent

larger than Blacks and five percent larger than Hispanics. Among non-drug cases, only Hispanics

showed a smaller degree of reduction than Whites.

It is not clear what policymakers should conclude from these contradictory findings.

Research cannot possibly test whether discrimination is present in the departure decision without

data on the most important control variables. For example, in the case of section 5K1.1 departures,

information on the type of assistance provided to authorities by the defendant is needed. For other

departures, information is needed on legally relevant factors that may make cases eligible for

departure. Without these data, these findings only raise the possibility that discrimination may be

influencing the departure decision. 

Use of sentencing options available under the guidelines. As described in Chapter One,

imprisonment is an option in any case under the guidelines, but USSG §5C1.1 authorizes judges to

impose alternatives to imprisonment, such as probation or home confinement, for defendants who

fall in certain zones of the sentencing table. Except in immigration cases, the majority of offenders

who qualify for a non-prison sentence receive one (USSC, 2002, Sourcebook, at Fig. F). A sizeable

proportion of qualifying offenders do not get the benefit of an alternative, however, and there is some

racial disproportionality in the use of these options. 

A 1996 Commission research report examined the factors associated with judges’ use of

sentencing options (USSC, 1996). Data were available on several factors legally relevant to this

stage, and these were found to explain the racial, but not the gender, disproportionalities. Criminal

history, employment status, role in the offense, citizenship, and mode of conviction accounted for

all the racial differences. However, women remained more likely to receive an alternative sentence

than men even after controlling for these factors. It is possible that other factors such as a greater

responsibility for the care of young children might explain the gender difference.

Placement within the guideline range of imprisonment. For offenders who do not receive

a departure or a sentencing option, judges must decide on a term of imprisonment within the

prescribed guideline range. The width of the guideline ranges vary from a minimum of six months

for the least serious crimes up to over six and a half years for the most serious, so where an offender

is placed within the imprisonment range can make a real difference. 

In its Four-Year Evaluation (USSC, 1991a), the Commission calculated the percentage of

various racial and gender groups who were sentenced in each quartile of the range for a 25 percent

random sample of cases. Women were more likely to be in the bottom quartile and less likely to be

in the top. Blacks were slightly more likely than Whites to be in the top half of the range. Flaherty

and Casey (1996) updated and extended this analysis. Excluding cases that received a departure or

that were affected by mandatory penalties, Blacks received sentences, on average, two percentiles

higher in the range than Whites. Whites and Hispanics showed no difference in one of the years that

were analyzed and a two percent difference in the other year. Women received sentences ten

percentiles lower than men.
 USSC, Sourcebook (2002), at Tbl. 34. 136

 Id. at Fig. J. 137

131

The GAO’s 1992 analysis also tried to determine whether race or gender accounted for

placement within the range, after controlling for some additional factors. The 25 percent sample

used in the study was not sufficient to permit controlling for all the factors simultaneously, so

analyses were performed using each control variable one at a time. They, too, found that race,

gender, age, employment, and marital status did affect placement within the sentencing range.

Hispanic defendants were more likely to be sentenced in the middle of the guideline range. Blacks

were most likely to receive sentences at the very top or bottom of the range. Women were more

likely to be sentenced at the bottom of the range. 

Like the evidence of disparity in departure decisions, it is not clear what policymakers should

make of these findings. The presumptive sentence analysis, in conjunction with these findings,

leaves little doubt that racial and ethnic disparities arise when judges decide whether to depart, how

far to depart, and where to place an offender within the guideline range. But without data on whether

these disparities might be accounted for by legally relevant considerations, it seems premature to

conclude that they represent unwarranted disparity or discrimination on the part of judges.

D. Rules Having Significant Adverse Impacts

Previous sections have evaluated how much of the sentencing gap between various groups

is due to discrimination and how much reflects legally relevant considerations that judges are bound

to take into account. One other possibility remains: some of the gap may result from sentencing

rules that have a disproportionate impact on a particular offender group but that serve no clear

sentencing purpose. A rule that serves no clear purpose would be questionable in any event, but

rules that adversely affect a particular group deserve extra scrutiny. Chapter Three described how

mandatory minimum penalties that trump the otherwise applicable guideline range, such as

sentencing enhancements under 18 U.S.C. § 924(c), fall disproportionately on African-American

offenders. This section identifies several other sentencing rules that have such an adverse impact.

1. The 100-to-1 Powder to Crack Cocaine Ratio.

In 2002, 81 percent of the offenders sentenced for trafficking the crack form of cocaine were

African-American. The average length of imprisonment for crack cocaine was 119 months,

136

compared to 78 months for the powder form of the drug. Average sentences for crack cocaine were

25 months longer than for methamphetamine and 81 months longer than for heroin. The reason 137

for the harsher treatment of crack cocaine offenses is the low threshold amounts for five- and tenyear mandatory minimum sentences that are built into the mandatory minimum penalty statutes and

incorporated into the Drug Quantity Table of the guidelines, as discussed in Chapter Two. It takes
132

100 times as much powder cocaine to get the same five-year sentence as a particular amount of crack

cocaine. Under the statutes, five grams of crack cocaine—an amount a heavy user might consume

in a weekend with a street value under a thousand dollars—receives a minimum sentence of five

years’ imprisonment. Crack cocaine is the only drug for which simple possession of greater than five

grams, even without an intent to distribute, is treated the same as drug trafficking. 

The Commission has previouslyreported that the harms associated with crack cocaine do not

justify its substantially harsher treatment compared to powder cocaine (USSC, 1995; 1997; 2001).

The increased addictiveness of crack cocaine is due to its method of use (smoking), rather than to

any pharmacological difference between the various forms of cocaine. Powder cocaine that is

smoked is equally as additive as crack cocaine, and powder cocaine that is injected is more harmful

and more additive than crack cocaine, although cocaine injection is relatively rare. Recent research

has demonstrated that some of the worst harms thought to be associated with crack cocaine use, such

as disabilities associated with pre-natal cocaine exposure, are not as severe as initially feared and no

more serious from crack cocaine exposure than from powder cocaine exposure. 

Powder cocaine is easily converted into crack cocaine through a simple process involving

baking soda and a kitchen stove. Conversion usually is done at the lowest levels of the drug

distribution system. Large percentages of the persons subject to five- and ten-year penalties under

the current rules do not fit the category of serious or high-level trafficker that Congress described

when initially establishing the five- and ten-year penalty levels. Most crack cocaine offenders

receiving sentences greater than five years are low-level street dealers. For no other drug are such

harsh penalties imposed on such low-level offenders. High penalties for relatively small amounts

of crack cocaine appear to be misdirecting federal law enforcement resources away from serious

traffickers and kingpins toward street-level retail dealers (USSC, 1997).

For these and other reasons, the Commission has repeatedly recommended that the quantity

thresholds for crack cocaine be revised upward. In 2001 (USSC, 2001) the Commission

recommended that the crack cocaine threshold be raised to at least 25 grams from 5 grams, replacing

the current 100 to-1 ratio with a 20-to-1 ratio. 

As shown in Figure 4.10, this one change to current sentencing law would reduce the gap in

average prison sentences between Black and White offenders by 9.2 months. Among drug

trafficking offenders only, the current gap is even wider—92.1 months for Blacks compared to 57.9

months for Whites—and the reduction would be even greater, 17.8months. This one sentencing rule

contributes more to the differences in average sentences between African-American and White

offenders than any possible effect of discrimination. Revising the crack cocaine thresholds would

better reduce the gap than any other single policy change, and it would dramatically improve the

fairness of the federal sentencing system.
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Figure 4.10: Estimated Time Served 1984-2002

with Projections for Recommended Ratio

2. Using Prior Drug Trafficking Convictions to Define Career Offenders.

The SRA directs the Commission to “assure that the guidelines specify a sentence to a term

of imprisonment at or near the maximum term authorized by statute” for offenders who are at least

18 years old and who have been convicted of a crime of violence or a drug trafficking offense, and

who previously have been convicted of two or more such offenses. The Commission implemented

this directive by creating USSG §4B1.1, the “career offender” guideline. It places each offender with

three violent or drug trafficking convictions in the highest criminal history category VI, and sets the

offense level at the guideline range associated with the statutory maximum penalty for the offense.

In 2000, there were 1,279 offenders subject to the career offender provisions, which resulted

in some of the most severe penalties imposed under the guidelines. Although Black offenders

constituted just 26 percent of the offenders sentenced under the guidelines in 2000, they were 58

percent of the offenders subject to the severe penalties required by the career offender guideline.

Most of these offenders were subject to the guideline because of the inclusion of drug trafficking

crimes in the criteria qualifying offendersfor the guideline. ( Interestingly, Hispanic offenders, while
134

representing 39 percent of the criminal docket, represent just 17 percent of the offenders subject to

the career offender guideline.) Commentators have noted the relative ease of detecting and

prosecuting offenses that take place in open-air drug markets, which are most often found in

impoverished minority neighborhoods (Tonry, 1995), which suggests that African-Americans have

a higher risk of conviction for a drug trafficking crime than do similar White drug traffickers (Tonry,

1995; Blumstein, 2000).

The question for policymakers is whether the career offender guideline, especially as it

applies to repeat drug traffickers, clearly promotes an important purpose of sentencing. Unlike

repeat violent offenders, whose incapacitation may protect the public from additional crimes by the

offender, criminologists and law enforcement officials testifying before the Commission have noted

that retail-level drug traffickers are readily replaced by new drug sellers so long as the demand for

a drug remains high. Incapacitating a low-level drug seller prevents little, if any, drug selling; the

crime is simply committed by someone else.

Most importantly, preliminary analysis of the recidivism rates of drug trafficking offenders

sentenced under the career offender guideline based on prior drug convictions shows that their rates

are much lower than other offenders who are assigned to criminal history category VI. The overall

rate of recidivism for categoryVI offenderstwo years after release from prison is 55 percent (USSC,

2004). The rate for offenders qualifying for the career criminal guideline based on one or more

violent offenses is about 52 percent. But the rate for offenders qualifying only on the basis of prior

drug offenses is only 27 percent. The recidivism rate for career offenders more closely resembles

the rates for offenders in the lower criminal history categories in which they would be placed under

the normal criminal history scoring rules in Chapter Four of the Guidelines Manual. The career

offender guideline thus makes the criminal history category a less perfect measure of recidivism risk

than it would be without the inclusion of offenders qualifying only because of prior drug offenses.

There may be other rules that have unwarranted adverse impacts on minority groups without

clearly advancing a purpose of sentencing. The use of some non-moving traffic violations in the

calculation of the criminal history score is one such possibility but there are many others (Blackwell,

2003). Continued research on how well different rules that result in adverse impacts are fulfilling

the purposes of sentencing will improve both the fairness and the effectiveness of federal sentencing.

E. Conclusion

The federal criminal justice system must be both fair and perceived to be fair. A central

aspect of fairness in America’s multi-racial and multi-ethnic society is equal treatment under law,

without regard to race, ethnicity, or gender. America’s special concern with racial justice helped lead

to the creation of a sentencing system based on racially neutral rules. Evaluating the success of this

system at eliminating any vestige of discrimination must be a central component of evaluating the

guidelines.
135

For these reasons, it is troubling that reports of continuing racial, ethnic, and gender

discrimination continue to appear in newspaper stories and in academic journals. Such reports

understandably undermine public confidence in the federal courts, particularly among minority

groups. Public confidence also is threatened by data showing that the gap in average sentences

between African-American and other offender groups grew wider in the years following

implementation of the guidelines and mandatory minimum penalty statutes enacted shortly after

passage of the SRA. These findings deserve the careful attention of policymakers.

To be useful to policymakers, evidence of continuing sentencing disparities must be both

accurate and informative concerning how and where in the criminal justice process disparities arise,

and whether they are justified by differences in the seriousness of the offenses committed by the

members of each group or by other case characteristics that are important to achieving the purposes

of law enforcement. The review of evidence in this chapter suggests that the importance of

discrimination by judges has been exaggerated by the existing research, while other stages of the

criminal justice process have been relatively neglected, in part because of the paucity of data that can

be used to investigate them. 

The evidence shows that if unfairness continues in the federal sentencing process, it is more

an “institutionalized unfairness” (Zatz, 1987; Tonry, 1996) built into the sentencing rules themselves

rather than a product of racial stereotypes, prejudice, or other forms of discrimination on the part of

judges. Most of the difference between the average sentences of Blacks, Whites, and Hispanics is

an impact of the offense and offender characteristics that have been made relevant to sentencing by

the guidelines and the mandatory minimum penalty statutes. 

 Despite the Commission’s efforts to equalize the treatment of certain crimes, such “white

collar” and “street” crimes involving similar economic harms, increasingly severe treatment of other

crimes, particularly drug offenses and repeat offenses, has widened the gap among different offender

groups. Today’s sentencing policies, crystalized into the sentencing guidelines and mandatory

minimum statutes, have a greater adverse impact on Black offenders than did the factors taken into

account by judges in the discretionary system in place immediately prior to guidelines

implementation. Attention might fruitfully be turned to asking whether these new policies are

necessary to achieve any legitimate purpose of sentencing.
136

Chapter Five:

Summary and Conclusions

Chapter One described the goals of sentencing reform set out in the Sentencing Reform Act

[SRA] and discussed the components of guidelines development and implementation that were

created to achieve these goals. This final chapter assesses how fully the components of reform have

been implemented and how successfully the goals have been achieved. 

A. Substantially Achieved Goals of the SRA 

1. Increased Rationality and Transparency

The most basic achievement of sentencing reform is so fundamental that it can easily be

taken for granted—the guidelines have increased the rationality and transparency of federal

sentencing. Recall that the SRA was initially part of a larger project to revise the federal criminal

code. This project was ultimately abandoned (Gainer, 1998). Under the existing code, similar

conduct can be charged in a variety of ways and there is no systematic grading of offenses to ensure

punishment proportionate to the seriousness of the crime (Robinson, 2000). The guidelines brought

order to the code by assigning the plethora of statutory offenses to generic categories representing

the basic classifications of criminal conduct. These generic offenses were then graded in terms of

seriousness, and specific adjustments for aggravating and mitigating circumstances were provided

to adjust for the facts of each particular case. As described by one expert, the guidelines “are a

systematic body of law in which a large amount of material relating to crime and punishment has

been collected and organized. The guidelines impose a logical and rational order on most federal

offenses and clarify the ambiguities that result from having a superfluity of sections describing

virtually identical conduct” (Joost, 1997). In short, the guidelines have helped to rationalize the

federal criminal law. 

In terms of regulating criminal sentences, the SRA authorized the Commission to create an

instrument of policy control—the sentencing guidelines—that simply did not exist in the era of

indeterminate sentencing. This instrument allows policymakers to establish a consistent sentencing

philosophy for the entire federal court system. Adjustments in policy, for example, to encourage the

use of particular types of sanctions or to more severely punish certain types of crimes, are now

possible in ways that were not feasible in a decentralized, discretionary system. Formalized rule

making has replaced judicial discretion; the rule of law has replaced “law without order” (Frankel,

1972). 

Advantages of the new instrument. Guidelines sentencing means that the reasons for

sentences are much better understood today than they were in the preguidelines era. Statistics
137

provide a method for quantifying this increased understanding. Researchers could not account for

most of the variance—the deviation of sentences around the average—among sentences in

preguidelines statistical studies, meaning that we poorly understood the factors that controlled

judges’ decisions (Rhodes, 1991). Today, approximately 80 percent of the variance in sentences can

be explained by the guidelines rules themselves. This greater transparency makes it easier to dispel

concerns that sentences vary arbitrarily among judges, or that irrelevant factors, such as race or

ethnicity, significantly affect sentences. 

Because most of the factors that determine sentences are known in advance, practitioners

report that it is easier to predict sentences based on the facts of the case than it was in the

discretionary preguidelines era (USSC, 1991; Bowman, 1996). The effects of changes in sentencing

policy can also be anticipated more precisely. The prison impact model developed by the Sentencing

Commission, and further elaborated by the Bureau of Prisons, has proven very accurate at projecting

the need for prison beds and supervision resources (Gaes, et al., 1993). Managing correctional

resources is made easier by the guidelines.

By making sentencing policies more transparent, the guidelines also facilitate debate and

evaluation of the merits of particular policies. Evaluation of policies has been made easier by

another benefit of sentencing reform—the creation of a specialized expert agency with a substantial

research mission. The Commission has developed and maintains huge databases on the sentences

imposed in each fiscal year, as well asintensive study samples, and numerous other specialized data

sets focused on particular issues. These represent the richest sources of information that have ever

been assembled on federal crimes, federal offenders, and sentences imposed, and are invaluable

resources for policy research. 

Risks of the new instrument. While the creation of explicit sentencing rules has many

advantages, commentators have noted that it also brings risks. One such risk has been called “factor

creep” (Ruback & Wroblewski, 2001). Detailed rules implementing explicit policies make tinkering

with the policies and adding to the rules very easy. While many guideline amendments have

clarified ambiguous terms orsimplified guidelines operation, other amendments have added to their

complexity. It is possible to imagine countless circumstances that would make an offense more

serious. For example, one might wish to enhance punishment for selling drugs 1) near a school yard,

2) near a prison, 3) near a drug treatment facility, 4) in the presence of a minor, 5) by employing a

minor, or 6) to a pregnant woman. It is difficult to argue that any of these considerations are

irrelevant, yet, as more and more adjustments are added to the sentencing rules, it is increasingly

difficult to ensure that the interactions among them, and their cumulative effect, properly track

offense seriousness.

 

Complex rules with many adjustments may foster a perception of a precise moral calculus,

but on closer inspection this precision proves false (Breyer, 1999). Adjustments that appear

necessary to achieve proportionate punishment may in actuality result in arbitrary distinctions among

offenders. The original Commission recognized that “the number of possible relevant distinctions

is endless. One can always find an additional characteristic X such that if the bank robber does X,
138

he is deserving of more punishment” (Breyer, 1988, pp. 13, 14). The Commission’s initial draft

proposal attempted to identify a comprehensive list of distinctions among offenses and offenders,

but it was judged unworkable by many reviewers. To limit such debilitating complexity, the

Commission adopted drafting principles that began with offense distinctions that were sufficiently

frequent and substantial to be evident in the Commission’s statistical analysis of data on past

sentencing practices. Additional distinctions were then added only in limited circumstances when

a specific policy need could be articulated and was accepted by a majority of the Commission

(Nagel, 1990). The judicial departure power was relied on to ensure fine-tuning of sentences in

atypical cases when needed to achieve the purposes of sentencing.

Pressure to add further adjustments has continued throughout the guidelines era, however.

As evidenced in Appendix C, Congress frequently has directed the Commission to add aggravating

adjustments to a wide variety of guidelines, in some cases formulating the specific wording and

degree of adjustment. Commentators have noted that the need for these amendments has often not

been demonstrated empirically and they have warned of the dangers of congressional “micromanagement” (Parker & Block, 1988; 2001). Political pressure to respond to public concerns over

high-publicity crimes could result in frequent revision ofthe guidelines without a sound policy basis

(Rappaport, 1999). Regardless of the motivation, the steady accretion of guideline enhancements

reflects Congress’s increasing interest and involvement in the development of guidelines sentencing

policy, as well as Congressional preference for a detailed and “tough” guidelines sentencing scheme.

2. Increased Certainty and Severity of Punishment

Of all the goals for sentencing reform articulated in the SRA, increasing the certainty and

severity of punishment has been most fully achieved. The sentencing trends for different offense

types, described in Chapter Two, demonstrate substantial increases in the use of incarceration and

in the length of prison time served. The guidelines have had effects on severity that are independent

of mandatory minimum penalty statutes. Many offenses not subject to minimum penalty statutes

have shown severity increases similar to offenses that are subject to statutory minimums. Further,

while the severity of punishment has been increased for many types of crime, in some cases, severity

has been decreased to create greater uniformity among similar offenses, thus proving that the

guidelines are a flexible instrument of policy control that can work in both directions. 

Certainty and severity of imprisonment. The use of imprisonment has increased steadily,

with 86 percent of all federal offenders in 2002 spending some time in prison, up from 69 percent

fifteen years earlier. The percentage of offenders receiving simple probation—probation without

confinement conditions—was cut almost in half by 1991 compared to the percentage in 1987. It has

continued to decline to just 9.1 percent of all cases in 2002, just a third of the rate in 1987. Most

notably, use of simple probation has been reduced by an increased use of intermediate sanctions,

such as home, community, or intermittent confinement, which restrict offenders’ liberty to their

homes, halfway houses, or weekends in jail. The guidelines make intermediate sanctions an explicit

sentencing option for offenders in Zones A, B, and C of the Sentencing Table, and the availability

of these options was increased early in the guidelines era.
 28 U.S.C. § 991(b)(2). 138

 Pub. L. No. 105-386, 112 Stat. 3469 (Nov. 13, 1998).

139

139

For offenders who are imprisoned, the length of time served has increased substantially in

the guidelines era. The average time served more than doubled after implementation of the

guidelines. Since 1992 there has been a slight downturn in average time served, but the typical

federal offender sentenced in 2002 will still spend almost twice as long in prison as in 1984, (the

year the SRA was enacted) increasing from an average of just under 25 monthsto almost 50 months.

Forsome offenses, such as violent offenses, sentences imposed have actually decreased. But

time served has increased due to the abolition of parole, which results in more of the sentence

imposed actually being served. For other offenses, such as drug trafficking, sentences imposed

increased even as parole was being abolished, resulting in increases in time actually served of two

and a half times (to an average of 80 months) immediately after guidelines implementation. Despite

a slight downturn in the late 1990s, following implementation of the “safety valve” and other

changes, the average time served for drug trafficking remains over twice as long in 2001 as it was

in 1984. Time served for immigration offenses also increased substantially due to both abolition of

parole and increases in sentences imposed. For other offenses, such as manslaughter, the abolition

of parole was offset by decreases in sentences imposed, resulting in continuity in average time

served. This is consistent with the original Commission’s use of data on past practices to establish

the guidelines levels for some types of crime. Recent amendments to some of these guidelines are

likely to increase sentence severity in the future.

Increasing the certainty and severity of punishment were clear goals of the SRA. These goals

were not intended as ends in themselves, but as means to the ends of just punishment and crime

control through deterrence and incapacitation (Rappaport, 2003). Analyses currently underway at

the Commission will measure the degree to which the increases in sentence certainty and severity

have been “effective in meeting the purposes of sentencing as set forth in section 3553(1)(2) of Title

18, United States Code.”138

Independent and bi-directional effects of the guidelines. It is extremely difficult to

disentangle the effects of the guidelines from the effects of statutory minimum penalties for offenses

subject to statutory minimums; the guidelines structure and severity levels reflect the structure found

in the statutes. However, analyses of offenses not covered by statutory minimum penalties clearly

demonstrate that the guidelines have increased severity levels independent from the statutes.

Sentence severityfor immigration offenses was increased byguideline amendments in the late 1980s

and early 1990s and by additional amendments promulgated pursuant to congressional directives in

the late 1990s. Average time served for firearm trafficking and illegal firearm possession under 18

U.S.C. § 922(g) has been doubled in the guidelines era without enactment of any mandatory

minimum penalties. (Statutory minimum penalties under 18 U.S.C. § 924(c) for brandishing or

discharging a firearm during a drug trafficking or violent offense were increased in 1998.)139
140

Sentencing severity for a small number of offenses was decreased by the guidelines. Average

time served for larceny decreased after implementation of the guidelines due to the Commission’s

decision to decrease severity for simple property crimes, while increasing it for “white collar”

offenses, in order to treat economic crimes involving the same amount of money more similarly.

Other economic offenses show severity trends in both directions: increases for tax and fraud,

decreases for forgery and embezzlement. The Commission’s 2001 amendments pursuant to its

“economic crimes package” increased sentences for offenses involving large numbers of victims and

larger monetary losses. Later amendments pursuant to directives in the Sarbanes-Oxley Act

increased sentences for a wider variety of economic crimes and further augmented the 2001 increase.

These increases are just beginning to appear in the data currently available.

Clearly, the guidelines have had an effect on sentencing independent of statutory minimum

penalties. In addition, while the guidelines have been generally used to increase sentence severity,

they can be used to decrease sentence severity for targeted offenses or offenders, if policymakers

choose to do so. 

B. Partially Achieved Goals of the SRA 

1. Reduction of Unwarranted Sentencing Disparity

The central goal of the SRA was reduction of unwarranted sentencing disparity. Congress

recognized, however, that disparity is not monolithic; it arises from multiple and discrete sources.

Different components of the reformed sentencing system were designed to help control disparity

arising from different sources. Evaluating the current system requires evaluating how well each

source of disparity has been controlled. 

Inter-judge and regional disparity. Rigorous statistical study both inside and outside the

Commission confirm that the guidelines have succeeded at the job they were principally designed

to do: reduce unwarranted disparity arising from differences among judges. As described in Chapter

Three, the “primary judge effect” was reduced by approximately one-third to one-half with the

implementation of the guidelines, and “interaction effects” have been reduced even more

substantially. Analysis of specific offense types shows that the guidelines reduced inter-judge

disparity for most types of crime, with the exception of immigration and robbery offenses. 

Although changes in the amount of regional disparity from the preguidelines to the guidelines

era cannot be quantified as rigorously as can changes in inter-judge disparity, the available evidence

suggests that it was reduced under the guidelines for some offenses. However, regional disparity

may have increased significantly for drug trafficking offenses, reflecting both different adaptations

to the guidelines and different types of offenses prosecuted in different regions. The increased

severity of drug trafficking offenses in the guidelines era allows regional differences to be more

pronounced. Regional disparity may reflect both the policies of U.S. Attorneys and the practices

of judges. 
141

Using hierarchical statistical modeling described in Chapter Three, and the presumptive

sentence model described in Chapter Four to control for case differences, analysis reveals that 73

percent of the variation in sentence lengths in federal sentencing today is due to offense and offender

differences that affect the guideline range. Though statistically significant, only 2.9 and 2.8 percent

of the variation is attributable to judges and districts, respectively. Departures based on defendants’

substantial assistance accounted for the greatest amount of variation in sentences—4.4 percent in

2001. Other downward departures contributed 2.2 percent of the variation in sentences. Upward

departures and use of the guideline range contributed relatively little to the total variation in

sentences. Determining how much, if any, of the variation in sentences created by these mechanisms

is unwarranted is difficult because of limitations in the data. The available evidence suggests,

however, that at least part of the variation in sentences resulting from these mechanisms may

represent unwarranted disparity.

Racial, ethnic, and gender disparity. As described in Chapter Four, any influence of racial

or ethnic discrimination in sentencing decisions has been substantially controlled. By this important

measure, sentencing reform has been successful. While some differences among groups in the

likelihood of imprisonment or the length of prison terms imposed remains unaccounted for by legally

relevant factors, the statistical significance of these differences fluctuate year-to-year, making deeply

rooted prejudices or stereotypes an unlikely explanation for the differences. Some different

treatment may result from legitimate considerations on which we have no data. 

However, a significant difference in the treatment of similar male and female offenders

remains unaccounted for, and may reflect lingering paternalism or, perhaps, sentencing-relevant

differences between the genders on which data are not collected. Most important, policy changes

effected by statutoryminimum penalties, and incorporated into the guidelines’ rules, have increased

the gap in average sentences between African-American and other offenders. A significant part of

this gap is due to policies that the Commission has found to be unnecessary to achieve the purposes

of sentencing, such as the 100-to-1 quantity ratio between powder and crack cocaine.

Disparity arising at presentencing stages. In order to prevent plea bargaining from

undermining sentencing reform, the SRA directed the Commission to promulgate policy statements

regarding judicial review of plea agreements. The Commission also established other policies—such

as the relevant conduct rule in Chapter One, Part B and the multiple count rule in Chapter Three, Part

D of the Guidelines Manual, and cross-references among guidelines—designed to ameliorate the

effects of uneven charging and plea bargaining decisions. 

While it is difficult to quantify the exact extent to which presentencing stages are

contributing to unwarranted disparity today, due both to limitations in the data and to recent changes

in Department of Justice policies, several lines of evidence suggest that uneven charging and plea

bargaining remain a source of unwarranted sentencing disparity. As reviewed in Chapter Three,

surveys of judges and probation officers, field research in several districts, and analysis of

information provided to the Commission in presentence reports have suggested that uneven charging

and plea bargaining undermine the guidelines and result in sentencing disparity in a substantial

number of cases. 
 28 U.S.C. § 991(b)(1)(B).

140

142

Presentencing decisions sometimes result in sentences that are disproportionately lenient

compared to the penalty established by the guidelines as appropriate for the offender’s conduct. For

example, research from three different time periods throughout the guidelines era has demonstrated

that only a small minority of offenders who qualify for enhanced penalties under 21 U.S.C. § 841

for prior drug offenses receive such enhancements. Similarly, about a third of offenders who qualify

for an enhanced sentence under 18 U.S.C. § 924(c) for use of a firearm during a violent or drug

trafficking offense receive such an enhancement, about another third receive the guidelines’ instead

of the statutory firearm enhancement instead, while another third receive no increase at all.

At other times, presentencing decisions result in sentences disproportionately severe

compared to the guidelines range that would otherwise apply to the case. For example, a small

number of offenders each year are charged with multiple violations of section 924(c) as part of the

same indictment and sentencing hearing. Such “count stacking” increases the statutory minimum

sentence far above the top of the otherwise applicable guideline range. The Commission’s multiple

count rules cannot ameliorate the effects of charging variations involving statutory mandatory

sentencing enhancements. The Department’s new charging policies attempt to regulate use of

statutory sentencing enhancements, but they leave considerable discretion to individual U. S.

attorneys and prosecutors to depart from guideline principles. 

There is little empirical research exploring why enhanced penalties are sought in some cases

and not in others, or whether their use reflects legally relevant factors, extra-legal factors, or arbitrary

variation. Field research suggests a variety of explanations, including workload pressures and the

desire to create incentives, beyond those contained in the guidelines themselves, for defendant

cooperation with the government. Different prosecutors and different courts may simply have

different views about how best to handle certain types of cases or what penalties are appropriate.

The sentences that result from avoiding applicable penalties may seem to those familiar with a

particular defendant sufficient to meet the purposes of sentencing and more just and effective than

the sentence required by a strict application of every penalty provided by law. Present practices,

however, which lead to inconsistent application or avoidance of statutory and guideline

enhancements, result in unwarranted disparity and sentences that are often disproportionate to the

seriousness of the offense.

2. A High Standard of Sentencing Uniformity 

Congress established an ambitious goal for sentencing reform—“avoiding unwarranted

sentencing disparities among defendants with similar records who have been found guilty of similar

criminal conduct while maintaining sufficient flexibility to permit individualized sentences when

warranted by mitigating or aggravating factors not taken into account in the establishment of general

sentencing policies.” Recognizing that plea bargaining could undermine uniformity, Congress 140

empowered the Commission to issue policy statements regarding judicial review and acceptance of
 28 U.S.C. § 994(a)(2)(E). 141

143

plea agreements, and directed the Commission to study the effects of plea agreements and 141

mandatory minimum penalties on sentencing disparity. 

As described in Chapter One, the Commission developed guidelines that sought uniform

treatment for most offenders based on their real offense conduct rather than merely the offense of

conviction. The Department of Justice and the Judicial Conference also recognized that

prosecutorial discretion could lead to disparity and put in place supporting policies designed to

ensure uniformity in charging, plea bargaining, and sentencing. All of this added up to a highly

ambitious program to control disparity and achieve uniform sentences. Commentators have noted

that no other sentencing commission has attempted so ambitious a goal and moved so far toward real

offense sentencing (Tonry, 1996; Frase, 2002; Reitz, 2003). Thus, it is not entirely surprising—and

no reason to dismiss all of federal sentencing reform as a failure—to recognize that this goal has

been only partially achieved. It is necessary, however, to assess in what respects the federal

guidelines system has fallen short, to examine the implications of current practices, and to draw

appropriate lessons. 

C. Partial Implementation of the

Components of Sentencing Reform 

Why has sentencing reform not achieved its goals in every respect? Program evaluators

generally begin by examining whether the components of a new program have been fully

implemented. Chapter One described the components of sentencing policy development and

implementation envisioned in the SRA and in the policies and practices put into place by the

Commission, the Department, and the Judicial Conference. 

In theory, the Commission was to develop sentencing policy following consultation with

judges, prosecutors, and other stakeholders, and after conducting and studying the latest

criminological research. Congress was to review guideline amendments and recommendations for

legislation in light of the policy reasons offered by the Commission. Prosecutors were to charge

similar crimes uniformly. Plea agreements were to include complete and accurate accounts of

offender’s readily provable conduct. Defendant cooperation with the government was to be

encouraged through sentence reductions built into the guidelines rules. As a check on prosecutorial

discretion and the disparity that might result, probation officers were to conduct presentence

investigations to inform judges’ review of plea agreements. If necessary, judges were to reject

agreements that would undermine the guidelines. Judicial departures were allowed only in

consideration of aggravating or mitigating circumstances not adequately considered by the

Commission, and appellate review of these departures and other guideline applications was intended

to correct misapplications and ensure consistent sentencing nationwide.
 Ashcroft Charging Memo, supra note 24, Sept. 22, 2003. 142

144

In practice, the reformed sentencing system has fallen short of this ideal in several respects,

which helps explain why the goals of sentencing reform have been only partially achieved.

1. Components of Guidelines Implementation 

Problems with presentencing stages. Uniform charging and plea bargaining have been

implemented only partially. Guidelines mechanisms designed to control the effects of uneven

charging and plea agreements successfully compensate in some cases, but these mechanisms do not

always work as intended. The multiple count rules successfully compensate for charging variations

in many cases, but cannot undo the effects of trumping statutory minimum penalties or “count

stacking” of offenses carrying mandatory consecutive penalty enhancements. 

The relevant conduct rule has long been a subject of critical commentary (see, e.g., Sands &

Coates, 1991; Lear, 1993; Reitz, 1993; Yellin, 1993; American College of Trial Lawyers, 2001) and

is an admitted policy compromise that treats some offenses involving quantifiable amounts, such as

drug trafficking, differently from other offenses, such as robbery. Evidence from field research

suggeststhat remaining ambiguity in the rule, and reluctance to upset plea agreements that stipulate

less than the full relevant conduct and subject defendants to the severe penalties that would result,

limits the rule’s application. Preventing disparity due to uneven charging or plea agreements that

limit offenders’ exposure to punishment has always depended on probation officers informing the

court of each defendant’s real offense conduct. Informational asymmetry between the prosecution

and the court, and limitations in resources needed to conduct presentence investigations, present a

formidable challenge to the operation of the relevant conduct rule as a check on disparity arising

from presentencing decisions. 

 Judicial review of plea agreements pursuant to the policy statements in Chapter Six of the

Guidelines Manual appears to be very limited. Judges are reluctant (and, in some judges’ views, are

not institutionally empowered) to infringe on the discretion of prosecutors to choose which charges

and evidence to bring forward. Judicial review of plea agreements is sometimes hampered by

limitations in the information available to probation officers for their presentence investigations.

Tension between the “beyond a reasonable doubt” standard of evidence applicable at trial and the

“preponderance of evidence” standard applicable at sentencing during the first fifteen years of the

guidelines raises questions about which conduct must be accounted for in plea agreements.

Rejection of plea agreements that undermine the guidelines, though not unknown, appears to have

been relatively rare throughout the guidelines era (Adair & Slawsky, 1991).

The Department of Justice and the Commission have recently taken steps designed to bolster

the previously existing policies calling for uniform charging, plea agreements consistent with the

goals of the SRA, and judicial review and rejection of plea agreements that undermine the 142
See provisions amending commentary to USSG §6B1.2, Amend. 651, App. C (Oct. 27, 143

2003).

145

guidelines. While it is too early to assess the effects of these changes, it may be unrealistic to 143

expect them to fully address these longstanding problems. Experience with previous Department

policies that sought to impose uniform practices nationwide suggests that these recent policy changes

alone may be insufficient to eliminate all disparate practices at presentencing stages. Commitment

to the SRA’s goal of systemwide uniformity naturally is more limited among front-line actors in

different regions, facing different local conditions, than it is among national policymakers (Sifton,

1993). A fundamental issue for the future is how to increase the commitment of front-line

implementers to their new responsibilities to ensure that the goals of sentencing reform are achieved.

Sentencing and appeal. Other components of guidelines implementation appear to be more

fully operational. Probation officers continue to conduct investigations and write comprehensive

presentence reports, although workload and budgetary pressures have recently raised questions about

the continuing viability of these efforts, particularly in districts implementing early disposition

programs. Judges are conscientiously applying the guidelines to the facts as they know them. The

availability of appellate review to correct guidelines misapplications has likely served to enforce the

guidelines system, although the effects of waivers of the right to appeal, which are increasingly

included in plea agreements, are a subject of ongoing investigation. Appellate review has frequently

alerted the Commission to areas of ambiguity where clarification of the guidelines is needed, and the

Commission has regularly responded with guideline amendments (Wilkins & Steer, 1993).

Appellate review has functioned less successfully in the area of departures. Appeals of

downward departures have been relatively rare given the departure rate. The appellate courts have

not developed a “common law” of departures sufficient to establish uniform national standards and

reduce significant variation in the use of departures. The Commission has only recently, pursuant

to the PROTECT Act, addressed departures comprehensively to help ensure that they occur only in

exceptional circumstances where departures are needed to achieve the purposes of sentencing. 

2. Components of Guidelines Policy Development

The three major components of guidelines policy development—collaboration among

policymakers, implementers, and other stakeholders, use of research and criminological expertise,

and political accountability—were introduced in Chapter One. Of these three, political

accountability has been a prominent feature of sentencing policy development throughout the

guidelines era. The Commission has worked to be responsive to the concerns of Congress. On only

one occasion has Congress used the statutory review period provided in the SRA for guidelines

amendments to disapprove Commission actions. The Commission’s priorities and policymaking

agenda have been greatly influenced by congressional directives and other crime legislation.

Statutory minimum penalties and sentence enhancements remain a parallel system of direct

legislative control over sentences, which bypass the processes of policy development outlined in the

SRA.
See letter from voting members of the United States Sentencing Commission to 144

Senators Orrin Hatch and Patrick Leahy, United States Congress, regarding “S. 151/H.R. 1104,

Child Abduction Prevention Act of 2003,” April 2, 2003.

146

Appendix B details directives from Congress to the Commission, which along with statutory

minimum penalties have substantially shaped the penalties for a majority of offenders sentenced in

the federal courts today. Congress has sometimes alerted the Commission to its concerns and

directed the Commission to study a problem, report its findings, and amend the guidelines as needed.

However, at other times Congress has determined the penalties on its own. Legislation has

sometimes directed the Commission to increase offense levels by a specific amount.

The PROTECT Act represents an extreme example of direct congressional control over the

sentencing guidelines themselves. Congress bypassed the research and consultation procedures

outlined in the SRA and directly amended the Guidelines Manual by statute. The Sentencing

Commission is troubled by any breakdown in collaboration among the legislature, itself, and other

criminal justice system policy actors. The Commission believes that it is uniquely qualified to

conduct studies using its vast database, obtain the views and comments of various segments of the

federal criminal justice community, review the academic literature, and report back to Congress in

a timely manner. These are the processes set out in the SRA, which established the Commission 144

as the clearinghouse for information on federal sentencing practices and a forum for collaboration

among policymakers, implementers, and other stakeholders. As an independent agency in the

Judiciary, but with frequent interaction with the three branches of government, the Commission is

well-positioned to develop fair and effective sentencing policy as long as it continues to receive the

resources and support it needs to carry out its vital mission. 

Policy development through the components created by the SRA offers advantages that have

not been fully realized. The national conversation on sentencing policy sparked by the Supreme

Court’s decision in Blakely provides another challenging opportunity to tap the Sentencing

Commission’s potential as a forum for collaboration and a center of research. The results of the

Commission’s Fifteen-Year Evaluation of guidelines sentencing can help inform this analysis, as

well as ongoing discussions and initiatives aimed at developing just and effective sentencing

practices.
A-1

Appendix A: Bibliography

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AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL JUSTICE.

American Bar Association. 1979. Standards Relating to Sentencing Alternatives and Procedures.

AMERICAN BAR ASSOCIATION TASK FORCE ON SENTENCING ALTERNATIVES AND

PROCEDURES.

Adair, David & Toby D. Slawsky. 1991. Fact-Finding in Sentencing, FEDERAL PROBATION

55(4):58-72.

ADAMS, WILLIAM. 1998. AN ANALYSIS OF DEPARTURES FROM THE U.S. SENTENCING

GUIDELINES, 1991-1995, Washington, D.C.: Urban Institute.

Adams, William. 2003. The Impact of Rule 35(b) and Other Sentencing Adjustments on Prison

Sentences of Federal Offenders. (Paper presented at the 2003 Annual Meeting of the

American Society of Criminology in Denver, CO.)

Administrative Office of the United States Courts. 1987. DIRECTOR ANNUAL REPORT. 

Washington, D.C.

Administrative Office of the United States Courts. 1992. The Presentence Investigation Report

for Defendants Sentenced Under the Sentencing Reform Act of 1984. Washington, D.C.:

Division of Probation.

Albonetti, Celesta. 1997. Sentencing Under the Federal Sentencing Guidelines: Effects of

Defendant Characteristics, Guilty Pleas, and Departures on Sentence Outcomes for Drug

Offenses, 1991-1992, LAW & SOCIETY REVIEW 31:789.

Albonetti, Celesta. 2003. Sentencing of White-Collar Offenders Under the Federal Sentencing

Guidelines. (Paper presented at the 2003 Annual Meeting of the American Society of

Criminology in Denver, CO.)

ALLEN, FRANCIS A. 1981. THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND

SOCIAL PURPOSE, New Haven: Yale University Press.

Alschuler, Albert. 1991. The Failure of Sentencing Guidelines: A Plea for Less Aggregation,

UNIVERSITY OF CHICAGO LAW REVIEW 58:901.

Alschuler, Albert & Stephen Schulhofer. 1989. Judicial Impressions of the Sentencing

Guidelines, FEDERAL SENTENCING REPORTER 2:94.
A-2

American College of Trial Lawyers. 1999. Report and Proposal on Section 5K1.1 of the U.S.

Sentencing Guidelines. Approved by the Board of Regents, March 10, 1999. 

American Law Institute. 1962. Model Penal Code and Commentaries. Washington, D.C.: ALI.

Anderson, James, et al. 1999. Measuring Inter-judge Sentencing Disparity: Before and After the

Federal Sentencing Guidelines, JOURNAL OF LAW & ECONOMICS 42(1).

Austin, James, et al. National Institute of Justice. 1995. National Assessment of Structured

Sentencing, Washington, D.C.: DOJ.

Austin, Thomas L. 1981. The Influence of Court Location on Type of Criminal Sentence: The

Rural-Urban Factor, JOURNAL OF CRIMINAL JUSTICE 9:316.

BALDUS, DAVID C., ET AL. 1990. EQUAL JUSTICE AND THE DEATH PENALTY, Boston: 

Northeastern University Press. 

Bartolomeo, John. 1981. Judicial Reactions to Sentencing Guidelines. Washington, D.C.: DOJ. 

Beale, Sara 1994. The New Reno Bluesheet: A Little More Candor Regarding Prosecutorial

Discretion, FEDERAL SENTENCING REPORTER 6:310.

Becker, Gary G. 1968. Crime and Punishment: An Economic Approach, JOURNAL OF POLITICAL

ECONOMY 76:169.

Berk, Richard & Alec Campbell. 1993. Distribution in Crack Charging in Los Angeles: Do

Statistics Tell the Whole Truth About “Selective Prosecution”?, FEDERAL SENTENCING

REPORTER 6(2):36.

Berlin, Eric P. 1993. The Federal Sentencing Guidelines' Failure to Eliminate Sentencing

Disparity: Governmental Manipulations Before Arrest, WISCONSIN LAW REVIEW 1993:

187.

Berman, Douglas A. 1996. Is Fact Bargaining Undermining the Sentencing Guidelines?,

FEDERAL SENTENCING REPORTER 8(6):300.

Berman, Douglas A. 1999. A Common Law for This Age of Federal Sentencing: The Opportunity

and Need for Judicial Lawmaking, STANFORD LAW & POLICY REVIEW 11:93.

Berman, Douglas A. 2000. Balanced and Purposeful Departures: Fixing a Jurisprudence that

Undermines the Federal Sentencing Guidelines, NOTRE DAME LAW REVIEW 76:21.
A-3

Berman, Douglas A. 2002. From Lawlessness to Too Much Law? Exploring the Risk of Disparity

From Differences in Defense Counsel Under Guidelines Sentencing, IOWA LAW REVIEW

87(2):435-463. 

Bersin, Alan. 1996. Reinventing Immigration Law Enforcement in the Southern District of

California, FEDERAL SENTENCING REPORTER 8:254.

Bersin, Alan & Judith Fiegin. 1998. The Rule of Law at the Border: Reinventing Prosecutorial

Policy in the Southern District of California, GEORGETOWN IMMIGRATION LAW JOURNAL

12:285.

Block, Michael & William Rhodes. 1987. NIJ Reports. Federal Sentencing Guidelines–Answers

to Some Questions. Washington, D.C.: National Institute of Justice.

Block, Michael & William Rhodes. 1989. Forecasting the Impact of the Federal Sentencing

Guidelines, BEHAVIORAL SCIENCES & THE LAW 7:51.

Block, Michael. 1989. Emerging Problems in the Sentencing Commission’s Approach to

Guideline Amendments, FEDERAL SENTENCING REPORTER 1:451.

Blumstein, Albert (ed.). 1983. Research on Sentencing: The Search for Reform. Washington,

D.C.: National Research Council. 

Blumstein, Albert & Allen Beck. 1999. Population Growth in U.S. Prisons, 1980-1996, CRIME

AND JUSTICE: A REVIEW OF RESEARCH 26:17.

Bowman, Francesca. 1996. Probation Officers Advisory Group Survey, FEDERAL SENTENCING

REPORTER 8:305.

Bowman, Frank O. 1996. The Quality of Mercy Must be Restrained, and Other Lessons in

Learning to Love the Federal Sentencing Guidelines, WISCONSIN LAW REVIEW 1996:679.

Bowman, Frank O. 1999. Departing is Such Sweet Sorrow: A Year of Judicial Revolt on

“Substantial Assistance” Departures Follows a Decade of Prosecutorial Indiscipline,

 STETSON LAW REVIEW 29:7. 

Bowman, Frank O. 2001. The 2001 Federal Economic Crime Sentencing Reforms: An Analysis

and Legislative History, INDIANA LAW REVIEW 35(1). 

Bowman, Frank O. & Michael Heise. 2002. Quiet Rebellion II: An Empirical Analysis of

Declining Federal Drug Sentences Including Data from the District Level, IOWA LAW

REVIEW 87:477.
A-4

Braniff, William. 1993. Local Discretion, Prosecutorial Choices and the Sentencing Guidelines,

FEDERAL SENTENCING REPORTER 5:309.

Breyer, Stephen. 1988. The Federal Sentencing Guidelines and the Key Compromises Upon

Which They Rest, HOFSTRA LAW REVIEW 17:1.

Breyer, Stephen & Kenneth Feinberg. 1990. The Federal Sentencing Guidelines: A Dialogue,

CRIMINAL LAW BULLETIN 26(5):9.

Broderick, Vincent. 1993. Local Factors in Sentencing, FEDERAL SENTENCING REPORTER 5:314.

Brooks, Karl. 2002. Sentencing Reform in Historical Context: The Progressive Vision of

Sentencing Commissions. (Paper presented at the Society for History in the Federal

Government Annual Conference).

Brown, Joe. 1992. The Sentencing Guidelines Are Reducing Disparity, AMERICAN CRIMINAL

LAW REVIEW 29(3):875.

Bunzel, Sharon. 1995. The Probation Officer and the Federal Sentencing Guidelines: Strange

Philosophical Bedfellows, YALE LAW JOURNAL 104:933.

Bureau of Justice Assistance. 1998. 1996 National Survey of State Sentencing Structures.

Washington, D.C.: U.S. Department of Justice.

Bureau of Justice Statistics. 1987a. Sentencing and Time Served. Washington, D.C.: DOJ.

Bureau of Justice Statistics. 1987b. Sourcebook of Criminal Justice Statistics. Washington, D.C.:

DOJ.

Bureau of Justice Statistics. 1992. Federal Sentencing in Transition, 1986-1990. Washington,

D.C.: DOJ.

Bureau of Justice Statistics. 1993. Sentencing in the Federal Courts: Does Race Matter?

Washington, D.C.: DOJ.

Bureau of Justice Statistics. 2001. Sourcebook of Criminal Justice Statistics. Washington, D.C.:

DOJ.

Bureau of Justice Statistics. 2002a. Federal Criminal Case Processing, 2000. Washington, D.C.:

DOJ.

Bureau of Justice Statistics. 2002b. Prisoners in 2001. Washington, D.C.: DOJ.
A-5

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A-19

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Appendix B: Congressional Directives to the 

United States Sentencing Commission Subsequent 

to Enactment of the Sentencing Reform Act 

Date P. L. No. Crime Type Brief Description of Directive Amend. No. 

1/18/1988 100--690 Drug Crimes Increase of at least 2 offense levels, minimum offense level of 134 

26 for importation of controlled substances by aircraft or other 

vessel 

1118/1988 100--690 Drug Crimes Increase of at least 2 offense levels, minimum offense level of 135 

26 for drug offenses involving minors 

1118/1988 100--690 Drug Crimes Increase of at least 2 offense levels, minimum offense level of 203 

26 for drug offenses within federal prisons 

1/18/1988 100--690 Drug Crimes Promulgate a minimum offense level of 26 for common carrier 141 

operation under influence of alcohol or drugs if death results; 

minimum level of 21 if serious bodily injury results 

1119/1988 100--700 Economic Crimes Promulgate appropriate penalty increases in fraud guidelines 156 

for conduct resulting in conscious or reckless risk of serious 

personal injury; Sentencing Commission to consider 

appropriateness of minimum 2-level enhancement of offense 

level for such conduct 

8/9/1989 101--73 Economic Crimes Promulgate a provision for substantial period of incarceration 317 

for violation of any of several bank fraud, bribery, and 

embezzlement statutes if conduct substantially jeopardizes the 

safety and soundness of a federally insured financial institution 

8/9/1989 101--73 Economic Crimes Ensure substantial period of incarceration for violation of any 317 

of several bank fraud, bribery, and embezzlement statutes if 

conduct substantially jeopardizes the safety and soundness of a 

federally insured financial institution 

1129/1990 101--647 Economic Crimes Promulgate a minimum offense level of 24 for bank fraud if 364 

defendant derives more than $1,000,000 in gross receipts 

1129/1990 101--647 Drug Crimes Promulgate an increase of at least 2 offense levels for offenses 370 

involving "ice" methamphetamine 

1/2911990 101--647 Violent Crimes Promulgate a minimum increase in kidnapping guideline for 363 

certain offenses involving child victims of 4levels if victim 

intentionally maltreated, 3 levels if victim sexually exploited, 3 

levels if for money or other consideration victim placed in care 

of person who does not have legal right to such custody, 2 

levels if defendant allowed child victim to be subjected to any 

of above-specified conduct 

1129/1990 101--647 All Crimes Report on mandatory minimum provisions in federal law; 

address 7 enumerated issues and any other information that 

would contribute to a thorough assessment 

B-1 
Date P. L. No. Crime Type 

1/29/1990 101--64 7 Sex Crimes 

0/28/1991 102--141 Other Crimes 

0/28/1991 102--141 Sex Crimes 

0/28/1991 102--141 Sex Crimes 

9/1311994 103--322 Gun Crimes 

9/13/1994 103--322 All Crimes 

9/13/1994 103--322 Drug Crimes 

9/13/1994 103--322 All Crimes 

9/13/1994 103--322 Violent Crimes 

9/13/1994 103--322 Sex Crimes 

Brief Description of Directive 

Study and amendment of guidelines for sexual crimes against 

children to provide more substantial penalties if Sentencing 

Commission detennines current penalties are inadequate 

Promulgate a minimum base offense level of 10 in 203.1 

Promulgate a minimum base offense level of 13 in 202.4 plus 

minimum 2-level increase for possession of 10 or more items 

depicting sexual exploitation of minor 

Promulgate a minimum base offense level of 15 in 202.2 and at 

least 5 level increase for pattern of activity involving sexual 

abuse or exploitation of minor; extension of 202.2 to receipt or 

trafficking; limit 202.2 to simple possession 

Promulgate an appropriate enhancement of sentence for crime 

of violence or drug trafficking crime involving a semiautomatic firearm 

Promulgate an appropriate enhancement for any felony, 

committed inside or outside U.S., that involves or is intended 

to promote international terrorism 

Promulgate an appropriate enhancement for offenders who 

violate section 409 of Controlled Substances Act (drug free 

truck stops and safety rest areas) 

Promulgate an appropriate sentence enhancement if an offender 

over 21 years old involved a minor in commission of the 

offense; consider ( 1) severity of the crime, (2) number of 

minors involved, (3) proximity in age between offender and the 

minor(s), and (4) the fact that involving minors in crimes of 

violence is frequently more serious than involving minors in 

drug trafficking offenses 

Ensure penalties for crimes of violence against elderly victims 

are sufficiently stringent to deter such crimes, protect the public 

against additional crimes of such defendants, and reflect the 

heinous nature of such offenses; penalties must reflect (1) 

degree of physical harm caused to elderly victim and (2) 

vulnerability of victim; guidelines must provide enhanced 

punishment for offenders previously convicted of crimes of 

violence against the elderly 

Review and amend, where necessary, aggravated sexual abuse 

guidelines as follows if appropriate: (1) enhance penalties in 

offenses with more than one offender, (2) reduce unwarranted 

disparities between sentences for offenders known to the victim 

and offenders unknown to the victim, (3) render federal 

penalties commensurate with penalties for similar state 

offenses, (4) account for recidivism in sex offenses, the severity 

of sex offenses, and the devastating effects of sex offenses on 

survivors; report within 180 days on: (1) known versus 

unknown offenders, (2) federal sentences compared to state 

sentences, and (3) effect of rape sentences on populations 

residing in federal territory relative to other offenses 

B-2 

------------·-

Amend. No. 

372 

437 

436 

435 

531 

526 

534 

528 

521 

511 
Date P. L. No. Crime Type Brief Description of Directive Amend. No. 

9/13/1994 103--322 Gun Crimes Promulgate an appropriate enhancement for offenders 522 

convicted under 18 U.S.C. 922(g) who have one or two prior 

convictions for violent felonies or serious drug offenses 

9/13/1994 103--322 Other Crimes Promulgate an appropriate enhancement for violating 18 U.S.C. 

844(h) more than once 

9/13/1994 103--322 Economic Crimes Promulgate an appropriate enhancement if the defendant used 513 

or carried a firearm during and in relation to a felony offense 

defined in chapter 25 of title 18 (counterfeiting and forgery) 

9/13/1994 103--322 Drug Crimes Promulgate appropriate enhancements for simple possession or 514 

distribution of drugs in a federal prison and for smuggling 

drugs into a federal prison; probation prohibited for such 

offenders 

9/13/1994 103--322 Drug Crimes Promulgate appropriate guidelines and amendments regarding 515 

the limitation on applicability of mandatory minimum penalties 

in certain drug cases; mandates a minimum 24-month low-end 

guideline sentence for offenders who qualify for a 5-year 

statutory mandatory minimum sentence 

9/1311994 103--322 Other Crimes Study and report concerning recommendations for guideline 

amendments that relate to offenses in which an HIV infected 

individual engages in sexual activity with knowledge of HIV 

status and with intent to expose another to HIV 

9/13/1994 103--322 Sex Crimes Promulgate appropriate amendments pertaining to repeat sexual 511 

offenders 

9/13/1994 103--322 Drug Crimes Promulgate an appropriate enhancement for a defendant 

convicted of violating 21 U.S.C. 860 (drug-dealing in drug-free 

zones) 

9/13/1994 103--322 Other Crimes Defines "hate crime"; minimum enhancement of 3 offense 521 

levels for offenses the finder of fact at trial determines beyond a 

reasonable doubt to be hate crimes; Commission to ensure 

reasonable consistency with other guidelines, avoid duplicative 

punishments for substantially the same offense, and take into 

account any mitigating circumstances that might justify 

exceptions 

9/13/1994 103--322 Economic Crimes Review and amend guidelines to ensure adequacy of victim 521 

related adjustments for fraud offenses against victims over age 

55; report to Congress in 180 days 

0/30/1995 104--38 Drug Crimes Submit to Congress recommendations regarding changes to 

statutes and guidelines governing sentences for crack and 

powder cocaine offenses; report should reflect 14 enumerated 

considerations; propose revision of drug quantity ratio of crack 

to powder cocaine; comment upon Dept of Justice report on 

charging and plea practices in money laundering cases 

2/2311995 104--71 Sex Crimes Report to Congress in 180 days concerning offenses involving 

child pornography and other sex offenses against children; 

address 5 enumerated areas in report 

B-3 
Date P. L. No. Crime Type Brief Description of Directive 

2/23/1995 104--71 

2/23/1995 104--71 

4/24/1996 104--132 

4/24/1996 104--132 

4/24/1996 104--132 

4/24/1996 104--132 

9/23/1996 104--201 

9/23/1996 104--208 

9/2311996 104--208 

9/30/1996 104--208 

9/3011996 104--208 

9/30/1996 104--208 

Sex Crimes Increase base offense level by at least 2 levels for 18 U.S.C. 

2251( c)(1)(A) or 2252(a) offenses 

Sex Crimes Increase base offense level for violation of 18 U.S.C. 2423(a) 

(transportation of children with intent to engage in criminal 

sexual activity) ) by at least 3 levels 

All Crimes Promulgate or amend guidelines to reflect changes made in 

Mandatory Victims Restitution Act of 1996 

Other Crimes Amend forthwith chapter 3 adjustment relating to international 

terrorism so that it applies more broadly to federal crimes of 

terrorism as defined in 18 U.S.C. 2332b(g) 

Economic Crimes Promulgate an appropriate enhancement for defendant 

convicted of 18 U.S.C. 470 (counterfeit acts committed outside 

U.S.) 

Other Crimes Promulgate a minimum 6-month prison term for persons 

convicted of violating 18 U.S.C. 1030(a) (terrorist activity 

damaging a federal interest computer) 

Other Crimes Sense of Congress is that sentences for offenses involving 

importation and exportation of nuclear, biological, and 

chemical weapons are too low; urges Commission to raise 

penalties 

Other Crimes Promulgate appropriate increases in base offense level for 

failure to depart, illegal reentry, and passport and visa fraud 

Other Crimes Promulgate appropriate increases in base offense level for 

failure to depart, illegal reentry, and passport and visa fraud 

Drug Crimes 

Other Crimes 

Other Crimes 

Review guideline penalties for conspiring with or assisting an 

alien to commit an offense under the Controlled Substances 

Import and Export Act and ensure appropriately stringent 

sentences 

Amend guidelines to eliminate disparities between sentences 

for peonage, involuntary servitude, and slave trade offenses and 

kidnapping and alien smuggling offenses; ensure that 

guidelines for peonage, involuntary servitude or slave trade 

offenses are enhanced for a large number of victims, the use or 

threatened use of a dangerous weapon, or a prolonged period of 

peonage or involuntary servitude 

Raise base offense level for fraudulent use of governmentissued documents by 2 levels; review number of documents 

enhancement and raise by 50%; impose enhancement for prior 

similar conviction in addition to the criminal history points 

given for such prior conviction; impose an additional 

enhancement for 2 similar prior convictions in addition to the 

criminal history points given for such prior convictions; 

consider aggravating/mitigating factors for upward/downward 

departures 

B-4 

~~ --- ---- ---- ~ 

Amend. No. 

537 

538 

571 

539 

554 

551 

633 

563 

562 

542 

544 
-------

Date P. L. No. Crime Type Brief Description of Directive Amend. No. 

9/30/1996 104--208 Other Crimes Raise base offense level in alien smuggling offenses by 3; 543 

increase enhancement for number of aliens by 50%; impose 

enhancements for having 1 or 2 prior similar convictions in 

addition to criminal history points; impose enhancement for 

bodily injury or death, firearm use or brandishrnent, or 

consciously or recklessly placing another in serious danger of 

death or bodily injury; consider downward adjustment if first 

offense involving smuggling of spouse or child; consider 

aggravating/mitigating factors for departure 

10/3/1996 104--237 Drug Crimes Amend guidelines to ensure the manufacture of 558 

methamphetamine is treated as a significant violation 

10/3/1996 104--237 Drug Crimes Determine whether sentences for dangerous handling of 555 

controlled substances are adequate and, if not, amend 

10/3/1996 I 04--237 Drug Crimes Increase penalties for methamphetamine offenses that reflect 555 

the rapidly growing incidence of such offenses, the high risk of 

addiction, the increased risk of violence, and the recent increase 

in importation of meth and its precursor chemicals 

10/3/1996 104--237 Drug Crimes Promulgate minimum 2level increase of base offense level for 557 

certain list I chemicals; ensure that quantity is calculated on the 

basis of quantity that could reasonably have been manufactured 

in a clandestine setting using the quantity of list I chemical 

possessed, distributed, imported or exported 

0/1111996 104--294 All Crimes Compile and analyze information relating to the use of 

encryption or scrambling technology to facilitate or conceal 

criminal conduct; annually report to Congress on nature and 

extent of such conduct 

0/13/1996 104--305 Drug Crimes Review sentences for flunitrazepam offenses and amend as 556 

appropriate; submit a summary of review to Congress and 

explanation for any amendments made; ensure guidelines 

reflect serious nature of offenses 

1119/1997 105--101 Other Crimes Promulgate a minimum 2 level enhancement for any offense 576 

against the property of a national cemetery 

2/16/1997 105--147 Economic Crimes Ensure guidelines for intellectual property crimes are sufficient 590 

to deter such crimes and provide for consideration of the retail 

value and quantity of the items with respect to which the crime 

against intellectual property was committed 

4/24/1998 105--172 Economic Crimes Provide an appropriate penalty for offenses involving the 596 

cloning of wireless telephones taking into consideration 7 

enumerated factors and any additional factors the Commission 

deems appropriate 

6/23/1998 105--184 Economic Crimes Substantially increase penalties for telemarketing fraud; provide 587 

a sophisticated means enhancement, including but not limited 

to sophisticated concealment such as perpetrating the offense 

from outside the United States; provide enhancement for cases 

involving a large number of vulnerable victims 

B-5 
-- ------------

Date P. L. No. Crime Type Brief Description of Directive 

0/30/1998 105--314 

0/30/1998 105--314 

0/30/1998 105--314 

0/30/1998 105--314 

0/30/1998 105--314 

0/30/1998 105--314 

0/30/1998 105--318 

12/9/1999 106--160 

0/1212000 106--310 

0/1412000 106--310 

0/17/2000 106--310 

Sex Crimes 

Sex Crimes 

Sex Crimes 

All Crimes 

Sex Crimes 

Promulgate an appropriate enhancement if defendant 

knowingly misrepresented the actual identity of the defendant 

with the intent to persuade, induce, entice, coerce, or facilitate 

the transport of a child to engage in a prohibited sexual activity 

Review guidelines relating to sexual exploitation and abuse of 

children and clarify that "distribution of pornography" applies 

to the distribution of pornography for monetary remuneration 

and for a nonpecuniary interest 

Promulgate an appropriate enhancement for offenses involving 

the transportation of minors for illegal sexual activity 

Ensure consistency between Federal Sentencing Guidelines and 

avoid duplicative punishment under the Federal Sentencing 

Guidelines 

Promulgate amendments to ensure an appropriate enhancement 

if the defendant used a computer in the sexual abuse or 

exploitation of a child 

Sex Crimes Increase sentences for offenses in which the defendant engaged 

in a pattern of activity involving the sexual exploitation or 

abuse of a minor 

Economic Crimes Review and amend, as appropriate, to provide an appropriate 

penalty for each offense under 18 U.S.C. 1028 (identity fraud) 

after considering 7 enumerated factors plus any additional 

factors the Commission deems appropriate 

Economic Crimes Implement emergency guideline amendments to implement 

section 2(g) of No Electronic Theft Act 

Drug Crimes Amend guidelines for offenses involving manufacturing of 

amphetamine and methamphetamine; if offense created 

substantial risk of harm to human life or the environment, 

increase base offense level by 3 levels and to a minimum level 

27; if offense involved substantial risk of harm to the life of a 

minor or incompetent, increase by 6 levels and to a minimum 

level30 

Drug Crimes Use emergency amendment authority to increase sentences for 

importation, exportation, manufacture or trafficking of Ecstasy; 

increase base offense level for any substance marketed as 

Ecstasy 

Drug Crimes Amend guidelines for offenses involving list I chemicals; 

increase penalties for ephedrine, phenylpropanolamine, and 

pseudoephedrine such that those penalties correspond to the 

quantity of controlled substance that could reasonably have 

been manufactured using the quantity of ephedrine, 

phenylpropanolamine, or pseudoephedrine possessed or 

distributed; Commission must create table of manufacturing 

conversion ratios based on scientific, law enforcement, and 

other data the Commission deems appropriate; also increase 

penalties for other list I chemicals taking into account 

enumerated factors 

B-6 

Amend. No. 

592 

592 

592 

615 

596 

590 

608 

609 

611 
Date P.L. No. Crime Type Brief Description of Directive Amend. No. 

0117/2000 106--310 Drug Crimes Increase penalties for amphetamine offenses such that those 610 

penalties are comparable to the base offense level for 

methamphetamine offenses and reflect enumerated 

congressional concerns 

0/17/2000 106--310 Drug Crimes Review and amend guidelines to provide for increased penalties 609 

for Ecstasy such that the penalties reflect the seriousness of 

such offenses and need to deter them; ensure that new penalties 

reflect 6 enumerated factors and any other factor the 

Commission deems appropriate; sense of Congress that base 

offense levels for Ecstasy are too low and should be increased 

to be comparable with other drug offenses; base offense levels 

for importing and trafficking Ecstasy should be increased; 

within 60 days prepare a report describing factors Commission 

considered in promulgating Ecstasy amendments 

0/2812000 106--386 Other Crimes Broaden scope of interstate stalking guidelines to include new 616 

statutory amendments 

012812000 106--386 Other Crimes Amend, if appropriate, guidelines applicable to human 627 

trafficking offenses; consider enumerated grounds for sentence 

enhancements; consider confonning human trafficking 

guidelines to guidelines applicable to peonage, slave trade, and 

involuntary servitude offenses 

11/1/2000 106--420 Economic Crimes Enhance penalties for fraud or misrepresentation in connection 617 

with obtaining or providing, or furnishing of information to a 

consumer on, scholarships, grants, loans, tuition, discounts, 

awards, or other financial assistance for purposes of financing 

higher education; make those penalties comparable to penalties 

for misrepresentation that defendant was acting on behalf of a 

charitable, educational, religious, or political organization or a 

government agency 

0/26/2001 107--56 Economic Crimes Ensure individuals convicted of a violation of 18 U.S.C. 1030 637 

can be subjected to appropriate penalties without regard to any 

mandatory minimum prison term 

3/27/2002 107--155 Public Integrity Cri Promulgate appropriate penalties for violations of the Federal 648 

Election Campaign Act of 1971 and report back to Congress. 

7/30/2002 107--204 Economic Crimes Review and amend guidelines to provide an enhancement for 647 

officers of publicly traded corporations who commit fraud 

7/30/2002 107--204 Public Integrity Cri Review and amend guideline penalties for obstruction of justice 647 

to ensure they are sufficient to deter and punish that activity. 

7/30/2002 107--273 Other Crimes Review and amend, as appropriate, in order to provide 659 

enhanced punishment for offenses involving the use of body 

armor. 

11/2/2002 107--273 Other Crimes Review and amend, as appropriate, guidelines to provide an 663 

enhancement for offenses involving assaults or threats on 

judges and certain other federal officers. 

B-7 
Date P. L. No. Crime Type 

11/2/2002 107--296 Other Crimes 

4/30/2003 108--21 Violent Crimes 

4/30/2003 108--21 Sex Crimes 

4/30/2003 108--21 All Crimes 

4/30/2003 108--21 Sex Crimes 

4/30/2003 108--21 All Crimes 

4/30/2003 108--21 Sex Crimes 

Brief Description of Directive 

Review and, if appropriate, amend guidelines relating to 

computer crimes in light of: (1) potential and actual harm; (2) 

level of sophistication; (3) intent to profit; (4) malicious intent; 

(5) privacy violations; (6) involved computer used for national 

defense, security, or administration of justice; (7) interfered 

with critical infrastructure; (8) threat to public health or safety. 

Increase base offense level for kidnapping from level 24 to 32, 

to delete specific offense characteristic decrease of two levels 

for release of victim within 24 hours, and to increase specific 

offense characteristic for sexual exploitation of victim from 

three to six levels. 

Adds several SOCs to 2G2.2 and 2G2.4 enhancing penalties if 

offenses involve between 10 and 150 (plus 2), 150 and 300 

(plus 3), 300 and 600 (plus 4), if offense involves material 

depicting sadism or masochism (plus 4), and defines "pattern of 

activity" as "prohibited sexual conduct on at least two separate 

occasions." Directs Commission to ensure that penalties for sex 

offenses "adequately reflect the seriousness of the offense." 

Within 180 days Commission must: (1) review grounds for 

downward departure; (2)(a) ensure a substantial reduction in 

the incidence of downward departures; (2)(b) authorize a 

downward departure of no more than 4 levels for Government 

approved early disposition programs; (2)(c) limit enumerated 

grounds for downward departure in the area of sexual offenses 

Guidelines Manual amended by Congress to prohibit departures 

in certain child crimes and sex offenses for any reason not 

affirmatively and specifically identified as a permissble ground 

for departure in Chapter 5, Part K 

Distribute amendments, policy statements, and official 

commentary to U.S. Courts and Probation Offices 

incorporating provisions of the PROTECT Act; prohibits 

Commission from promulgating any amendments on or before 

May 1, 2005, that are inconsistent with amendments made 

pursuant to the Act or to add any new grounds for downward 

departures, or promulgate any amendments that would result in 

sentencing ranges that are lower than those that were 

established by the amendments to guidelines regarding sex 

offenses; and at no time promulgate any amendments that 

would alter or repeal the amendments made by the Act to the 

acceptance of responsibility guideline. 

Applicable category of offense to be used for determining 

sentencing guidelines for persons convicted of crimes involving 

the obscene visual representation of the sexual abuse of 

children in violation of 18 U.S.C. § 1466A shall be the 

category of offenses described in § 2G2.2 of the Guidelines; 

Commission may promulgate guidelines specifically governing 

offenses under 18 U.S.C. § 1466A if such guidelines do not 

result in sentencing ranges that are lower than those that would 

have applied under § 2G2.2 of the Guidelines. 

B-8 

Amend. No. 

654 

651 

649 

651 

649 
,- --

Date P. L. No. Crime Type Brief Description of Directive 

4/30/2003 108--21 

4/30/2003 108--21 

4/30/2003 108--21 

4/30/2003 108--21 

2/16/2003 108--187 

6/22/2004 108--237 

7/15/2004 108--275 

Sex Crimes 

Sex Crimes 

Drug Crimes 

Other Crimes 

Other Crimes 

Review, and if appropriate, amend the Guidelines and policy 

statements to ensure that penalties are adequate in cases 

involving interstate travel with the intent to engage in a sexual 

act with a juvenile, in violation of 18 U.S.C. § 2423. 

Review and, as appropriate, amend the Guidelines and policy 

statements to ensure that the guidelines are adequate to punish 

and deter conduct involving violations of 18 U.S.C. § 2252A(a) 

(child pornography). With respect to guidelines for section 

2252A(a)(3)(B) (depictions of minors engaging in sexual 

conduct), the Commission was directed to consider the "relative 

culpability of promoting, presenting, describing or distributing 

material" as compared with solicitation of such material 

Review the guidelines with respect to offenses involving the 

drug GHB and to consider amending the guidelines to provide 

for increased penalties that reflect the seriousness of offenses 

involving GHB 

Ensure 3rd acceptance of responsibility point to be given only 

upon formal motion of the government 

Directive in the CAN-SPAM Act (Controlling the Assault of 

Non-Solicited Pornography and Marketing) to provide 

penalties for violations of law prohibiting transmission of 

certain commercial electronic messages containing "sexually 

oriented material," and other offenses that may be facilitated by 

the sending of large quantities of unsolicited electronic mail. 

The Act also requires that the Commission consider providing 

sentencing enhancements for several factors, including 

obtaining electronic mail addresses through improper means 

Economic Crimes Legislative history for the Antitrust Criminal Penalty 

Enhancement Act contains a directive to the Commission to 

revise the existing antitrust sentencing guidelines to increase 

terms of imprisonment for antitrust violations to reflect the new 

statutory maximum for these offenses, which was raised from 

three years to ten years. The legislative history states that no 

revisions are needed with regard to the fine provisions 

Other Crimes Amend the Abuse of Trust/Special Skill guideline at§ 3Bl.3 to 

include a defendant who exceeds or abuses the authority of his 

position to obtain unlawfully or use without authority any 

means of identification, and general directive to review and 

amend guidelines and policy statements to ensure that 

guidelines appropriately punish identify theft offenses 

involving an abuse of trust 

B-9 

Amend. No. 

664 

664 

667 

649 

665 
UNITED STATES SENTENCING COMMISSION

ONE COLUMBUS CIRCLE, N.E.

SUITE 2-500, SOUTH LOBBY

WASHINGTON, DC 20002-8002

(202) 502-4500

FAX (202) 502-4699

December 2, 2002

Dear Judge:

Enclosed is a summary of the responses of federal judges to the survey questions the

Sentencing Commission circulated earlier this year. More than 51% of the district judges and 33% of

circuit judges filled out the questionnaire. We are most appreciative that so many of you took the time

to respond to our request for information.

As we explained earlier, the purpose of the survey was to assist us in working with Congress. 

We already have used results from it in our Special Report to Congress, Cocaine and Federal

Sentencing Policy (May 2002), which led to a Senate hearing on our recommendation to improve

sentencing in this area.

The Commission is committed to an ongoing dialogue with the federal judiciary because we

need your input to do our work. We are always interested in your comments. 

Best personal regards,

Judge Diana E. Murphy

Chair
SUMMARY REPORT 

U.S. SENTENCING COMMISSION’S

SURVEY OF ARTICLE III JUDGES

A COMPONENT OF THE 

FIFTEEN YEAR REPORT 

ON THE U.S. SENTENCING COMMISSION’S 

LEGISLATIVE MANDATE

DECEMBER 2002
Commission Staff

Linda Drazga Maxfield, Project Director

Heidi Hallas, Research Assistant

Patricia Valentino, Secretary

DIANA E. MURPHY

Chair

RUBEN CASTILLO

Vice Chair

WILLIAM K. SESSIONS, III

Vice Chair

JOHN R. STEER

Vice Chair

STERLING JOHNSON, JR.

Commissioner

JOE KENDALL

Commissioner

MICHAEL E. O’NEILL

Commissioner

ERIC H. JASO

(Ex officio)

EDWARD F. REILLY, JR.

(Ex officio)
TABLE OF CONTENTS

SUMMARY RESULTS OF ARTICLE III JUDGES SURVEY

APPENDICES

A. SURVEY TOPICS AND STATUTORY REFERENCES ...... A-1

B. DISTRICT COURT JUDGE SURVEY RESPONSE FREQUENCIES

Question 1 Punishment Levels that Reflect Seriousness ................. B-1

Question 2 Mandatory Minimum Provisions ......................... B-2

Question 3 Adequate Deterrence ................................... B-2

Question 4 Protection of the Public ................................. B-3

Question 5 Rehabilitation ......................................... B-3

Question 6 Unwarranted Sentencing Disparities ....................... B-4

Question 7 Certainty ............................................ B-4

Question 8 Fairness ............................................. B-5

Question 9 Flexibility to Individualize Sentences ....................... B-5

Question 10 Just Punishment ....................................... B-6

Question 11 Availability of Sentence Types ........................... B-7

Question 12 Emphasis on Offender Characteristics ...................... B-8

Question 13 Neutrality toward Offender Characteristics .................. B-9

Question 14 Judicial Factor Disparity ................................ B-9

Question 15 Respect for the Law ................................... B-10

Question 18 Overall Guideline Achievement .......................... B-11

Question 19 Experience with Old Law Cases .......................... B-11

C. CIRCUIT COURT JUDGE SURVEY RESPONSE FREQUENCIES

Question 1 Punishment Levels that Reflect Seriousness ................. C-1

Question 2 Mandatory Minimum Provisions ......................... C-2

Question 3 Adequate Deterrence ................................... C-2

Question 4 Protection of the Public ................................. C-3

Question 5 Rehabilitation ......................................... C-3

Question 6 Unwarranted Sentencing Disparities ....................... C-4

Question 7 Certainty ............................................ C-4

Question 8 Fairness ............................................. C-5

Question 9 Flexibility to Individualize Sentences ....................... C-5

Question 10 Just Punishment ....................................... C-6

Question 11 Availability of Sentence Types ........................... C-7

Question 12 Emphasis on Offender Characteristics ...................... C-8

Question 13 Neutrality toward Offender Characteristics .................. C-9

Question 14 Judicial Factor Disparity ................................ C-9

Question 15 Respect for the Law ................................... C-10

Question 18 Overall Guideline Achievement .......................... C-11

Question 19 Experience with Old Law Cases .......................... C-11
1

To assist in linking the survey finding to the relevant data table in the appendices, references to the

survey question numbers are placed throughout the text. For example, the reference here to “Q18” indicates that this

discussion is based on data from the survey’s Question 18 topic (judges’ ratings of overall guideline achievement).

2District and circuit court judges responding to the survey held comparable opinions about how the

guidelines reflected their legislative mandates, often showing strikingly similar patterns of responding.

SUMMARY REPORT ON THE

U.S. SENTENCING COMMISSION’S

SURVEY OF ARTICLE III JUDGES

The approaching fifteen-year anniversary of the federal sentencing guidelines brings an

opportunity to reflect on the work produced by the U.S. Sentencing Commission and the effect of the

guidelines on the criminal justice system. For this reason, the Commission undertook a survey to

measure, from the judges’ perspectives, how the federal guidelines have responded to the goals

Congress set forth for them in the Sentencing Reform Act. All Article III judges were mailed

questionnaires in January 2002. Response rates were 51.8 percent for district court judges and 33.9

percent for circuit court judges. A list of the statutory issues covered by the survey appears in

Appendix A.

Reporting of Survey Results

A portion of the survey asked each judge to rate the guidelines’ effectiveness in achieving the

various goals of sentencing on a scale ranging from a low value of “1” (for “Few” of the judge’s cases

meeting the goal) to a high value of “6” (for “Almost All” of the judge’s cases meeting the goal). This

summary report treats responses concentrated at the higher end of the scale (i.e., “5” or “6”) as

indicating higher effectiveness in achieving these goals, responses in the center of the scale (i.e., “3”or

“4”) as indicating moderate effectiveness in achieving these goals, and responses concentrated at the

lower end of the scale (i.e., “1” or “2”) as indicating less effectiveness in achieving these goals.

Overall Rating of Guidelines

When asked to provide a general overall rating of effectiveness of the federal sentencing

guidelines in achieving the purposes of sentencing (Q18)1, approximately 40 percent of judges (38.4%

of responding district court judges and 41.7% of responding circuit court judges) reported a higher

degree of effectiveness, approximately 38 percent of judges (38.6% of responding district court judges

and 37.5% of responding circuit court judges) reported a moderate degree of effectiveness, and

approximately 22 percent of judges (22.9% of responding district court judges and 20.8% of

responding circuit court judges) reported a lower degree of effectiveness.2
2

Areas of Most Effectiveness in Meeting the Sentencing Goals

 Both responding district and circuit court judges believed that the guidelines had been relatively

effective in achieving four of the sentencing goals set forth in the Sentencing Reform Act:

— providing punishment levels that reflect the seriousness of the offense (Q1),

— providing adequate deterrence to criminal conduct (Q3), 

— protecting the public from further crimes of the defendant (Q4), and

— avoidingunwarranted sentencing disparities amongdefendantswithsimilarrecords

who have been found guilty of similar conduct (Q6).

Responding district court judges were more likely than responding circuit court judges to report

higher effectiveness in achieving these four goals, and a majority of responding district court judges also

believed that the guidelines were highly achieving the additional goal of providing certainty in meeting the

purposes of sentencing (Q7).

Areas of Least Effectiveness in Meeting the Sentencing Goals

A plurality of both responding district and circuit court judges indicated that there were two

areas in which the guidelines were less effective in achieving the purposes of sentencing: 

— providing defendants withtraining, medical care, ortreatment inthe most effective

manner, where rehabilitation was appropriate (Q5) and

— maintaining sufficient flexibility to permit individualized sentences when warranted

by mitigating or aggravating factors (Q9). 

Approximately 40 percent of responding district court judges, and slightly more responding

circuit court judges, reported that few of their cases met these sentencing goals.

Variations Within Offense Categories

The survey asked judges to provide responses specific to the most common types of offenses

sentenced under the guidelines. The response patterns were similar across offense types, but

noteworthy differences were observed for drug trafficking offenses. Compared to other offenses, a

greater percentage of responding judges reported that drug sentences typically were:

— more likely to afford adequate deterrence (Q3) and to protect the public from

further crimes (Q4) and
3

The Commission’s amendments to§2L1.2 (Unlawful Entry and Remaining) and §2B1.1 (Theft,

Embezzlement, Receipt of Stolen Property, Property Destruction, and Offenses Involving Fraud or Deceit), effective

November 1, 2001, may have since addressed some of the concerns underlying these responses.

3

— less likely to provide fairness (Q8), to provide just punishment (Q10), to

maintain sufficient flexibility to permit individualized sentences (Q9), and to

avoid unwarranted disparities among similar defendants found guilty of similar

conduct (Q6).

Consistent with these findings, the survey also affirmed the respondents’ judicial belief that drug

trafficking sentences were often longer than required to reflect the seriousness of the drug trafficking

crime. (Q1iii). 

With respect to other variations across offense types, responding judges also viewed firearms

trafficking sentences as relatively effective in meeting the goals of adequate deterrence (Q3) and

protection of the public (Q4). Further, when responding judges reported that certain guideline

punishment levels did not reflect crime seriousness, immigration unlawful entry sentences more often

were reported as too long, while fraud and theft sentences more often were reported as too short.3

(Q1iii)

Mandatory Minimums 

With respect to drug trafficking offenses, more than 40 percent of responding judges reported

that mandatory minimum statutes highly affect their ability to impose a sentence reflecting the statutory

purposes of sentencing. In contrast, slightly more than one quarter of responding judges reported that

few of their drug trafficking cases involved mandatory minimum provisions affecting the purposes of

sentencing. These data also suggest that responding judges were more concerned with mandatory

minimum effects on drug trafficking cases (compared to other offense types); roughly one-third more

district court judges provided answers to the drug trafficking portion of this question than to the portions

of this question addressing other offense types. Looking beyond drug trafficking offenses,

approximately 40 percent of all responding district court judges reported that relatively few firearms

trafficking cases involved mandatory minimum provisions affecting achievement of the purposes of

sentencing. (Q2)

Offender Characteristics

More than half of all responding judges would like more emphasis at sentencing placed on the

offender’s mental condition or the offender’s family ties and responsibilities. Additionally, more than

half of responding district court judges wanted more emphasis placed on offender age at sentencing. 

More than 40 percent of all responding judges also would like to see the following characteristics made

more relevant at sentencing: emotional condition, employment record, public service (including

military), and prior good works. More than 40 percent of responding district court judges also desired
4

greater guideline emphasis on several other offender characteristics: physical condition, drug or alcohol

dependence/abuse, and role in the offense. (Q12)

Neutrality

Most responding judges (approximately 90%) agreed that the guidelines “Almost Always”

maintained neutrality regarding the offender’s religion or creed. Overall, the responding district court

judges reported somewhat higher neutrality levels for all characteristics, with a large district court judge

majority (74%-79%) also citing “Almost Always” neutrality with respect to national origin, ethnicity, or

gender. Fewer district and circuit court judges (but still more than half) believed that there was “Almost

Always” neutrality with regard to offender race (62%-68%) and socioeconomic status (54%-60%). 

Looking at the findings from a different perspective, however, these data reveal that a large minority of

responding judges believed that neutrality was maintained only “Rarely” or “Sometimes” in all

categories, with these percentages reaching as high as 20 percent for socioeconomic status and race. 

(Q13)

Judicial Factor Disparity

Substantially less than 30 percent of all responding judges reported that the guidelines “Almost

Always” avoided unwarranted disparity with respect to the sentencing circuit, district, or judge. (Q14)

Respect for the Law

More than half of responding circuit court judges believed that the guidelines increased respect

for the law among victims of crime and members of the general public. Responding district court judges

were more likely to believe that the guidelines had no impact on respect for the law for these groups. 

(Q15)

Alternative Confinement Sentencing Options

The vast majority of responding judges were positive about the availability of alternatives to

incarceration and did not want to see this availability reduced. While a “No Change Needed” response

was common (with typically 40% to 70% of judges providing this answer across offense types), the

survey data highlighted certain types of offenses for which responding judges desired greater availability

of alternatives to straight incarceration. For example, in sentencing drug trafficking offenders, more than

half of responding district court judges (and a somewhat smaller proportion of responding circuit court

judges) would like greater access to straight probation, probation-plus-confinement, or “split”

sentencing options. Slightly more than 40 percent of both responding district and circuit court judges

also would like greater availability of sentencing options (particularly probation-plus-confinement or

“split” sentences) for theft and fraud offenses. (Q11)
5

Additional Information

This Summary Report highlights only some of the survey’s results. Other results can be found

in the accompanying tables showing the distribution of responses for each survey question: Appendix B

(for district court judge respondents) and Appendix C (for circuit court judge respondents). In

addition, the Commission expects to release in the future a more detailed report on the survey, including

discussions of the methodology and response rates, blank versions of the judge survey instruments, and

graphs comparing total and offense type results.
Page A-1 Appendix A-Survey Topics and Statutes

APPENDIX A

SURVEY TOPICS AND STATUTORY REFERENCES 

Article III Judge Survey Conducted by the U.S. Sentencing Commission in January 2002

Topic

Statutory

Reference

Survey

Question

Provide fairness in meeting the purposes of

sentencing 

28 U.S.C. § 991(b)(1)(B) Question 8

Provide certainty in meeting the purposes of

sentencing 

28 U.S.C. § 991(b)(1)(B) Question 7

Avoid unwarranted sentencing disparities

among defendants with similar records who

have been found guilty of similar criminal

conduct

28 U.S.C. § 991(b)(1)(B) Question 6

Maintain sufficient flexibility to permit

individualized sentences when warranted by

mitigating or aggravating factors not taken into

account in the establishment of general

sentencing practices

28 U.S.C. § 991(b)(1)(B) Question 9

Determine whether to impose a sentence to

probation, a fine, or a term of imprisonment

28 U.S.C. § 994(a)(1)(A) Question 11

Consider whether the following matters,

among others, with respect to a defendant,

have any relevance to . . . an appropriate

sentence: age, education, vocational skills,

mental and emotional condition, physical

condition including drug dependence, previous

employment record, family ties and

responsibilities, community ties, role in the

offense, criminal history, and degree of

dependence upon criminal activity for a

livelihood

28 U.S.C. § 994(d) Question 12
Topic

Statutory

Reference

Survey

Question

Page A-2 Appendix A-Survey Topics and Statutes

Assure that the guidelines and policy

statements are entirely neutral as to the race,

sex, national origin, creed, and socioeconomic

status of offenders

28 U.S.C. § 994(d) Question 13

Assure that the guidelines and policy

statements ... reflect the general

inappropriateness of considering the

education, vocational skills, employment

record, family ties and responsibilities, and

community ties of the defendant

28 U.S.C. § 994(e) Question 12

Reflect the seriousness of the offense 18 U.S.C. § 3553(a)(2)(A) Question 1

Promote respect for the law 18 U.S.C. § 3553(a)(2)(A) Question 15

Provide just punishment 18 U.S.C. § 3553(a)(2)(A) Question 10

Afford adequate deterrence to criminal

conduct 

18 U.S.C. § 3553(a)(2)(B) Question 3

Protect the public from further crimes of the

defendant 

18 U.S.C. § 3553(a)(2)(C) Question 4

Provide defendants with needed educational

or vocational training, medical care, or other

correctional treatment in the most effective

manner where rehabilitation is appropriate

18 U.S.C. § 3553(a)(2)(D) Question 5

Avoid unwarranted sentencing disparities

among defendants with similar records who

have been found guilty of similar conduct

18 U.S.C. § 3553(a)(6) Question 6
 APPENDIX C

Question 1 Considering cases that have come to you on appeal, how often did the guideline sentences,

CIRCUIT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 1 1.4 7 9.6 3 4.3 3 4.2 3 4.2 0 0.0 4 6.2 9 13.0

2 7 10.1 15 20.5 3 4.3 8 11.1 6 8.5 5 7.5 9 13.8 10 14.5

3 12 17.4 17 23.3 9 13.0 10 13.9 13 18.3 6 9.0 10 15.4 11 15.9

4 15 21.7 6 8.2 10 14.5 17 23.6 12 16.9 16 23.9 9 13.8 12 17.4

5 17 24.6 11 15.1 21 30.4 18 25.0 23 32.4 16 23.9 17 26.2 13 18.8

6 Almost All 17 24.6 17 23.3 23 33.3 16 22.2 14 19.7 24 35.8 16 24.6 14 20.3

Total 69 100.0 73 100.0 69 100.0 72 100.0 71 100.0 67 100.0 65 100.0 69 100.0

Missing 7 3 7 4 5 9 11 7 

Mean

Median

Question 1

(continued)

n% n% n% n% n% n% n%

1 1.9 7 23.3 29 64.4 22 55.0 8 28.6 13 38.2 17 36.2

43 82.7 17 56.7 6 13.3 8 20.0 8 28.6 11 32.4 21 44.7

8 15.4 6 20.0 10 22.2 10 25.0 12 42.9 10 29.4 9 19.1

52 100.0 30 100.0 45 100.0 40 100.0 28 100.0 34 100.0 47 100.0

Missing 24 46 31 36 48 42 29 

Mean

Source: U.S. Sentencing Commission, Survey of Article III Judges, Circuit Judge Responses, January 2002. 

more than appropriate, or sometimes greater/sometimes less?

Median

Less

Greater

Sometimes

Total 

Robbery Smuggling U.S. Entry

Drug Firearms

Trafficking Trafficking Fraud Theft/Emb.

Larceny/ Alien

For those cases where you believe that the guideline punishment levels do not reflect the 

seriousness of the crime, was it because the punishment was generally less than appropriate,

iii. Considering only defendants where punishment did not reflect seriousness:

Unlawful

Alien Unlawful

Sentencing Trafficking Trafficking Fraud Theft/Emb. Robbery Smuggling U.S. Entry

All Drug Firearms Larceny/

A Survey of Article III Judges on The Federal Sentencing Guidelines

as properly applied, provide punishment levels that reflect the seriousness of the offense?

ii. Considering only defendants convicted of these crimes:

Responses of Circuit Judges

4.3 3.7 4.6 4.2 4.2 4.7 4.1 3.8

4.0 3.0 5.0 4.0 5.0 5.0 5.0 4.0

2.1

2.0

2.0

2.0

2.1

2.0

1.6

1.0

1.7

1.0

1.8

2.0

1.9

2.0

Page C-1 Appendix C-Circuit Judges
Question 2 Considering cases that have come to you on appeal, how often did the guideline sentences, 

CIRCUIT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 13 19.1 11 16.4 13 22.0 25 43.9 23 42.6 24 43.6 22 43.1 22 39.3

2 10 14.7 6 9.0 7 11.9 11 19.3 11 20.4 8 14.5 9 17.6 11 19.6

3 12 17.6 13 19.4 12 20.3 7 12.3 9 16.7 7 12.7 10 19.6 12 21.4

4 16 23.5 8 11.9 5 8.5 6 10.5 5 9.3 9 16.4 4 7.8 1 1.8

5 11 16.2 14 20.9 13 22.0 2 3.5 1 1.9 2 3.6 1 2.0 4 7.1

6 Almost All 6 8.8 15 22.4 9 15.3 6 10.5 5 9.3 5 9.1 5 9.8 6 10.7

Total 68 100.0 67 100.0 59 100.0 57 100.0 54 100.0 55 100.0 51 100.0 56 100.0

Missing 8 9 17 19 22 21 25 20 

Mean

Median

Question 3 Considering cases that have come to you on appeal, how often did the guideline sentences,

CIRCUIT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 3 4.8 7 10.9 4 6.6 3 4.9 1 1.7 2 3.3 4 6.9 8 12.9

2 4 6.5 3 4.7 2 3.3 4 6.6 4 6.7 3 4.9 7 12.1 9 14.5

3 6 9.7 5 7.8 5 8.2 16 26.2 16 26.7 13 21.3 13 22.4 13 21.0

4 11 17.7 3 4.7 5 8.2 9 14.8 10 16.7 8 13.1 5 8.6 1 1.6

5 19 30.6 13 20.3 16 26.2 11 18.0 13 21.7 13 21.3 12 20.7 11 17.7

6 Almost All 19 30.6 33 51.6 29 47.5 18 29.5 16 26.7 22 36.1 17 29.3 20 32.3

Total 62 100.0 64 100.0 61 100.0 61 100.0 60 100.0 61 100.0 58 100.0 62 100.0

Missing 14 12 15 15 16 15 18 14 

Mean

Median

Source: U.S. Sentencing Commission, Survey of Article III Judges, Circuit Judge Responses, January 2002. 

Unlawful

Sentencing Fraud Robbery Trafficking Trafficking Theft/Emb. Smuggling U.S. Entry

ii. Considering only defendants convicted of these crimes:

as properly applied, involve mandatory minimum provisions that affect the court's ability 

to impose sentences that reflect the statutory purposes of sentencing?

ii. Considering only defendants with mandatory minimum convicted of these crimes:

All Drug Firearms Larceny/

Robbery Smuggling U.S. Entry

A Survey of Article III Judges on The Federal Sentencing Guidelines

Trafficking Trafficking Fraud Theft/Emb.

Responses of Circuit Judges

Alien Unlawful

Sentencing

3.9

4.5

4.1

4.5

4.5

5.0

4.3

4.0

4.2

4.0

4.9

5.0

4.7

6.0

4.5

5.0

3.3

3.0

as properly applied, afford adequate deterrence to criminal conduct?

All Drug Firearms Larceny/ Alien

3.8

4.0

3.4

3.0

2.4

2.0

2.4

2.0

2.5

2.0

2.5

2.0

2.4

2.0

Page C-2 Appendix C-Circuit Judges
Question 4 Considering cases that have come to you on appeal, how often did the guideline sentences, 

CIRCUIT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 1 1.6 2 2.9 1 1.6 2 3.2 4 6.5 2 3.2 5 8.3 11 17.7

2 3 4.8 2 2.9 4 6.3 8 12.9 5 8.1 5 7.9 9 15.0 9 14.5

3 13 21.0 9 13.2 11 17.2 11 17.7 13 21.0 9 14.3 14 23.3 11 17.7

4 12 19.4 7 10.3 6 9.4 14 22.6 10 16.1 13 20.6 6 10.0 1 1.6

5 18 29.0 16 23.5 14 21.9 8 12.9 12 19.4 10 15.9 9 15.0 13 21.0

6 Almost All 15 24.2 32 47.1 28 43.8 19 30.6 18 29.0 24 38.1 17 28.3 17 27.4

Total 62 100.0 68 100.0 64 100.0 62 100.0 62 100.0 63 100.0 60 100.0 62 100.0

Missing 14 8 12 14 14 13 16 14 

Mean

Median

Question 5 Considering cases that have come to you on appeal, how often did the guideline sentences, 

educational or vocational training, medical care, or other correctional treatment in the 

most effective manner?

CIRCUIT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 19 32.8 24 45.3 17 34.0 16 31.4 16 32.0 17 34.7 21 43.8 22 44.0

2 12 20.7 8 15.1 12 24.0 11 21.6 10 20.0 9 18.4 7 14.6 9 18.0

3 6 10.3 4 7.5 3 6.0 3 5.9 5 10.0 5 10.2 3 6.3 5 10.0

4 8 13.8 4 7.5 4 8.0 8 15.7 7 14.0 5 10.2 5 10.4 2 4.0

5 5 8.6 5 9.4 5 10.0 5 9.8 4 8.0 5 10.2 4 8.3 4 8.0

6 Almost All 8 13.8 8 15.1 9 18.0 8 15.7 8 16.0 8 16.3 8 16.7 8 16.0

Total 58 100.0 53 100.0 50 100.0 51 100.0 50 100.0 49 100.0 48 100.0 50 100.0

Missing 18 23 26 25 26 27 28 26 

Mean

Median

Smuggling U.S. Entry

as properly applied where rehabilitation was appropriate, provide defendants with needed 

All Drug Firearms Larceny/ Alien

ii. Considering only defendants needing services convicted of these crimes:

4.4

A Survey of Article III Judges on The Federal Sentencing Guidelines

Trafficking Fraud Theft/Emb. Robbery

Responses of Circuit Judges

Unlawful

Sentencing Trafficking

as properly applied, protect the public from further crimes of the defendant?

ii. Considering only defendants convicted of these crimes:

All Drug Firearms Larceny/ Alien

5.0

Source: U.S. Sentencing Commission, Survey of Article III Judges, Circuit Judge Responses, January 2002. 

Unlawful

Sentencing Fraud Robbery Trafficking Trafficking Theft/Emb. Smuggling U.S. Entry

2.9

2.0

2.7

2.0

2.9

2.0

3.0

2.0

2.9

2.0 2.0

2.9 2.8

2.0

2.6

2.0

4.9

5.0

4.8

5.0

4.2

4.0

4.2

4.0

3.8

3.5

4.5

5.0

3.9

4.0

Page C-3 Appendix C-Circuit Judges
Question 6

CIRCUIT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 4 5.9 9 13.6 4 6.5 4 6.3 4 6.6 3 5.0 6 10.2 6 10.0

2 6 8.8 7 10.6 5 8.1 2 3.2 4 6.6 1 1.7 2 3.4 4 6.7

3 9 13.2 8 12.1 9 14.5 14 22.2 12 19.7 10 16.7 11 18.6 12 20.0

4 16 23.5 14 21.2 11 17.7 14 22.2 12 19.7 13 21.7 9 15.3 8 13.3

5 22 32.4 15 22.7 16 25.8 13 20.6 13 21.3 18 30.0 16 27.1 16 26.7

6 Almost All 11 16.2 13 19.7 17 27.4 16 25.4 16 26.2 15 25.0 15 25.4 14 23.3

Total 68 100.0 66 100.0 62 100.0 63 100.0 61 100.0 60 100.0 59 100.0 60 100.0

Missing 8 10 14 13 15 16 17 16 

Mean

Median

Question 7

as properly applied, provide certainty in meeting the purposes of sentencing?

CIRCUIT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 1 1.6 4 6.3 1 1.7 2 3.2 2 3.4 2 3.5 5 9.1 6 10.9

2 6 9.4 7 11.1 4 6.7 5 8.1 5 8.5 2 3.5 4 7.3 2 3.6

3 14 21.9 10 15.9 13 21.7 14 22.6 11 18.6 10 17.5 7 12.7 10 18.2

4 15 23.4 10 15.9 8 13.3 16 25.8 15 25.4 15 26.3 10 18.2 9 16.4

5 16 25.0 17 27.0 20 33.3 11 17.7 13 22.0 15 26.3 17 30.9 16 29.1

6 Almost All 12 18.8 15 23.8 14 23.3 14 22.6 13 22.0 13 22.8 12 21.8 12 21.8

Total 64 100.0 63 100.0 60 100.0 62 100.0 59 100.0 57 100.0 55 100.0 55 100.0

Missing 12 13 16 14 17 19 21 21 

Mean

Median

Source: U.S. Sentencing Commission, Survey of Article III Judges, Circuit Judge Responses, January 2002. 

Unlawful

Sentencing Fraud Robbery Trafficking Trafficking Theft/Emb. Smuggling U.S. Entry

All Drug Firearms

similar records who have been found guilty of similar conduct?

A Survey of Article III Judges on The Federal Sentencing Guidelines

Considering cases that have come to you on appeal, how often did the guideline sentences, 

Sentencing Trafficking Trafficking Fraud

Responses of Circuit Judges

as properly applied, avoid unwarranted sentence disparities among defendants with 

ii. Considering only defendants convicted of these crimes:

All Drug Firearms Larceny/

4.2

4.0

4.5

5.0

U.S. Entry

Larceny/ Alien Unlawful

Theft/Emb. Robbery Smuggling

5.0

4.2

4.0

4.2

4.0

3.9

4.0 5.0

4.1

4.5

4.1

Alien

4.2

ii. Considering only defendants convicted of these crimes:

Considering cases that have come to you on appeal, how often did the guideline sentences,

4.2

4.3

5.0

4.2

5.0

4.4

4.0 4.0

4.1

4.0

4.2

4.0

4.4

5.0

4.2

5.0

Page C-4 Appendix C-Circuit Judges
Question 8

CIRCUIT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 10 15.4 21 31.8 9 14.5 7 11.5 7 11.5 6 10.0 9 15.5 10 16.7

2 8 12.3 9 13.6 7 11.3 7 11.5 5 8.2 5 8.3 7 12.1 9 15.0

3 14 21.5 12 18.2 10 16.1 13 21.3 16 26.2 12 20.0 17 29.3 18 30.0

4 16 24.6 8 12.1 10 16.1 11 18.0 5 8.2 12 20.0 4 6.9 5 8.3

5 9 13.8 8 12.1 16 25.8 15 24.6 19 31.1 13 21.7 11 19.0 9 15.0

6 Almost All 8 12.3 8 12.1 10 16.1 8 13.1 9 14.8 12 20.0 10 17.2 9 15.0

Total 65 100.0 66 100.0 62 100.0 61 100.0 61 100.0 60 100.0 58 100.0 60 100.0

Missing 11 10 14 15 15 16 18 16 

Mean

Median

Question 9

CIRCUIT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 16 24.6 26 38.8 17 27.9 14 22.2 14 23.3 14 23.0 15 25.4 18 30.5

2 15 23.1 13 19.4 12 19.7 10 15.9 7 11.7 9 14.8 11 18.6 9 15.3

3 10 15.4 7 10.4 7 11.5 13 20.6 12 20.0 11 18.0 10 16.9 9 15.3

4 10 15.4 9 13.4 10 16.4 9 14.3 9 15.0 9 14.8 6 10.2 7 11.9

5 8 12.3 5 7.5 6 9.8 8 12.7 8 13.3 9 14.8 8 13.6 7 11.9

6 Almost All 6 9.2 7 10.4 9 14.8 9 14.3 10 16.7 9 14.8 9 15.3 9 15.3

Total 65 100.0 67 100.0 61 100.0 63 100.0 60 100.0 61 100.0 59 100.0 59 100.0

Missing 11 9 15 13 16 15 17 17 

Mean

Median

Responses of Circuit Judges

All Drug Firearms Larceny/ Alien

U.S. Entry

as properly applied, maintain sufficient flexibility to permit individualized sentences when 

warranted by mitigating or aggravating factors not taken into account in the establishment 

of general sentencing practices?

Larceny/ Alien Unlawful

Sentencing Trafficking Trafficking Fraud Theft/Emb. Robbery Smuggling

A Survey of Article III Judges on The Federal Sentencing Guidelines

ii. Considering only defendants convicted of these crimes:

as properly applied, provide fairness in meeting the purposes of sentencing?

ii. Considering only defendants convicted of these crimes:

All Drug Firearms

Considering cases that have come to you on appeal, how often did the guideline sentences, 

Considering cases that have come to you on appeal, how often did the guideline sentences, 

Source: U.S. Sentencing Commission, Survey of Article III Judges, Circuit Judge Responses, January 2002. 

Unlawful

Sentencing Fraud Robbery Trafficking Trafficking Theft/Emb. Smuggling U.S. Entry

3.5

4.0

3.0

3.0

3.8

4.0

3.7

4.0

3.8

4.0

4.0

4.0

3.5

3.0

3.4

3.0

3.1

3.0

3.1

3.0

3.3

3.0

3.3

3.0

3.2

3.0

3.0

3.0

2.6

2.0

3.0

3.0

Page C-5 Appendix C-Circuit Judges
Question 10

CIRCUIT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 5 7.9 17 25.8 8 12.9 8 12.7 8 12.9 8 13.1 9 15.8 11 18.3

2 12 19.0 9 13.6 5 8.1 10 15.9 8 12.9 6 9.8 11 19.3 13 21.7

3 7 11.1 16 24.2 10 16.1 12 19.0 12 19.4 11 18.0 10 17.5 9 15.0

4 19 30.2 7 10.6 12 19.4 12 19.0 12 19.4 10 16.4 7 12.3 11 18.3

5 12 19.0 8 12.1 14 22.6 9 14.3 10 16.1 10 16.4 5 8.8 2 3.3

6 Almost All 8 12.7 9 13.6 13 21.0 12 19.0 12 19.4 16 26.2 15 26.3 14 23.3

Total 63 100.0 66 100.0 62 100.0 63 100.0 62 100.0 61 100.0 57 100.0 60 100.0

Missing 13 10 14 13 14 15 19 16 

Mean

Median

All Drug Firearms

Responses of Circuit Judges

Larceny/ Alien Unlawful

A Survey of Article III Judges on The Federal Sentencing Guidelines

 as properly applied, provide just punishment?

ii. Considering only defendants convicted of these crimes:

 Considering cases that have come to you on appeal, how often did the guideline sentences, 

Source: U.S. Sentencing Commission, Survey of Article III Judges, Circuit Judge Responses, January 2002. 

3.6 3.9 3.7 3.4

3.0 4.0 4.0 3.0 3.0

Trafficking Fraud U.S. Entry Theft/Emb. Robbery

3.6

Sentencing

4.0

3.9

4.0 4.0

3.7 3.1

Trafficking Smuggling

Page C-6 Appendix C-Circuit Judges
Question 11 Please identify where you believe that changes in the availability of guideline sentence 

CIRCUIT

JUDGES

STRAIGHT n% n% n% n% n% n% n%

PROBATION SENTENCE

More available 31 44.9 13 20.3 22 32.8 26 40.6 9 15.0 10 16.4 18 29.0

Less Available 2 2.9 8 12.5 9 13.4 8 12.5 7 11.7 10 16.4 8 12.9

No change needed 36 52.2 43 67.2 36 53.7 30 46.9 44 73.3 41 67.2 36 58.1

69 100.0 64 100.0 67 100.0 64 100.0 60 100.0 61 100.0 62 100.0

7 12 9 12 16 15 14 

CONFINEMENT n% n% n% n% n% n% n%

More available 33 49.3 13 20.0 29 43.9 28 43.8 10 16.7 15 24.6 23 37.7

Less Available 2 3.0 8 12.3 12 18.2 9 14.1 7 11.7 11 18.0 9 14.8

No change needed 32 47.8 44 67.7 25 37.9 27 42.2 43 71.7 35 57.4 29 47.5

67 100.0 65 100.0 66 100.0 64 100.0 60 100.0 61 100.0 61 100.0

9 11 10 12 16 15 15 

n% n% n% n% n% n% n%

More available 34 50.7 17 27.0 27 41.5 27 42.2 16 26.2 15 25.0 22 36.1

Less Available 1 1.5 5 7.9 10 15.4 8 12.5 6 9.8 8 13.3 6 9.8

No change needed 32 47.8 41 65.1 28 43.1 29 45.3 39 63.9 37 61.7 33 54.1

67 100.0 63 100.0 65 100.0 64 100.0 61 100.0 60 100.0 61 100.0

9 13 11 12 15 16 15 

Missing

 types would better promote the purposes of sentencing.

Part II: Sentence Determination

Drug Weapon Larceny/ Alien Unlawful

Responses of Circuit Judges

Total

PROBATION WITH Trafficking Trafficking Fraud Theft/Emb. U.S. Entry

Larceny/ Alien

Robbery Smuggling

Unlawful

Trafficking Trafficking Fraud Theft/Emb. Robbery Smuggling U.S. Entry

Drug Weapon

Total

Missing

Total

Missing

IMPRISONMENT

PLUS SUP. RELEASE

CONFINEMENT

CONDITIONS

Unlawful

Trafficking Trafficking Fraud Theft/Emb. Robbery Smuggling U.S. Entry

Source: U.S. Sentencing Commission, Survey of Article III Judges, Circuit Judge Responses, January 2002. 

A Survey of Article III Judges on The Federal Sentencing Guidelines

Offense Type

Drug Weapon Larceny/

CONDITIONS

Alien

Page C-7 Appendix C-Circuit Judges
Missing

n% n% n% n% n

69 100.0 0 0.0 32 46.4 37 53.6 7

68 100.0 1 1.5 20 29.4 47 69.1 8

Vocational Skills 68 100.0 1 1.5 17 25.0 50 73.5 8

Mental Conditions 69 100.0 0 0.0 37 53.6 32 46.4 7

Emotional Conditions 69 100.0 1 1.4 29 42.0 39 56.5 7

Physical Conditions 66 100.0 1 1.5 19 28.8 46 69.7 10

Drug Dependence/Abuse 69 100.0 0 0.0 25 36.2 44 63.8 7

Alcohol Dependence/Abuse 68 100.0 0 0.0 22 32.4 46 67.6 8

Employment Record 68 100.0 0 0.0 33 48.5 35 51.5 8

Family Ties/Responsibilities 70 100.0 0 0.0 44 62.9 26 37.1 6

68 100.0 2 2.9 25 36.8 41 60.3 8

Role in the Offense 68 100.0 2 2.9 26 38.2 40 58.8 8

69 100.0 5 7.2 16 23.2 48 69.6 7

Criminal Livelihood 68 100.0 1 1.5 24 35.3 43 63.2 8

69 100.0 0 0.0 29 42.0 40 58.0 7

Employment Contributions 68 100.0 1 1.5 20 29.4 47 69.1 8

69 100.0 1 1.4 30 43.5 38 55.1 7

*Includes military, civic, charitable, or public service

Source: U.S. Sentencing Commission, Survey of Article III Judges, Circuit Judge Responses, January 2002. 

JUDGES characteristics for sentencing determination?1

A Survey of Article III Judges on the Federal Sentencing Guidelines

Responses of Circuit Judges

Age

No Change

Question 12 Based on the cases that you personally have heard on appeal, do you believe that the 

CIRCUIT guidelines should place less or more emphasis on any of the following defendant

Education

Total Less More

Prior Good Works

Community Ties

Criminal History

1

 The Circuit Judges listed the following "other" defendant characteristics (number of responses): Respondents feel that gender (1) and when the defendant has learned 

lessons to avoid committing another crime (1) should receive more emphasis.

Public Service*

Page C-8 Appendix C-Circuit Judges
CIRCUIT

JUDGES

Missing

n% n% n% n% n% n

69 100.0 0 0.0 0 0.0 7 10.1 62 89.9 7

69 100.0 0 0.0 0 0.0 8 11.6 61 88.4 7

68 100.0 2 2.9 5 7.4 9 13.2 52 76.5 8

69 100.0 4 5.8 14 20.3 8 11.6 43 62.3 7

69 100.0 2 2.9 12 17.4 8 11.6 47 68.1 7

69 100.0 3 4.3 7 10.1 12 17.4 47 68.1 7

69 100.0 3 4.3 13 18.8 16 23.2 37 53.6 7

 the guidelines avoid unwarranted disparity with respect to the characteristics listed

CIRCUIT below?

JUDGES

Missing

n% n% n% n% n% n

Defendants with Similar

 Records and Conduct 69 100.0 4 5.8 19 27.5 23 33.3 23 33.3 7

Sentencing Circuit 66 100.0 3 4.5 13 19.7 31 47.0 19 28.8 10

Sentencing District 68 100.0 3 4.4 20 29.4 26 38.2 19 27.9 8

Sentencing Judge 69 100.0 3 4.3 22 31.9 29 42.0 15 21.7 7

Source: U.S. Sentencing Commission, Survey of Article III Judges, Circuit Judge Responses, January 2002. 

Question 14 Based on the cases that you personally have heard on appeal, do you believe that

Socioeconomic Status

National Origin

Race

Ethnicity

Gender

Religion

Creed

Rarely Sometimes

Almost 

Total Rarely Sometimes Often Always

A Survey of Article III Judges on the Federal Sentencing Guidelines

Responses of Circuit Judges

Almost 

Total Often Always

 the guidelines maintain neutrality with respect to the characteristics listed below?

Question 13 Based on the cases that you personally have heard on appeal, do you believe that 

Page C-9 Appendix C-Circuit Judges
 had no impact on respect for the law for these groups?1

CIRCUIT

JUDGES Missing

n% n% n% n% n

Federal Offenders 73 100.0 25 34.2 16 21.9 32 43.8 3

Crime Victims 71 100.0 40 56.3 4 5.6 27 38.0 5

The General Public 70 100.0 39 55.7 7 10.0 24 34.3 6

Source: U.S. Sentencing Commission, Survey of Article III Judges, Circuit Judge Responses, January 2002. 

A Survey of Article III Judges on the Federal Sentencing Guidelines

Responses of Circuit Judges

Total Increase Decrease No Impact

1

The Circuit Judges listed the following "other" groups: The guidelines increase respect for the law in Congress (1). Another respondent feels 

that family members (1) have a decreased respect for the law.

Question 15 Do you believe that the sentencing guidelines have increased, decreased, or

Page C-10 Appendix C-Circuit Judges
Question 18

CIRCUIT sentencing guideline system's achievements in furthering the general

JUDGES

n %

1 Low Achievement 7 9.7

2 8 11.1

3 12 16.7

4 15 20.8

5 17 23.6

6 High Achievement 13 18.1

Total 72 100.0

Missing 4 

Mean

Median

Question 19A If you served as a Federal District Judge, have you sentenced any

CIRCUIT federal felony offender under Old Law (i.e., "pre-guidelines")?

JUDGES n %

Yes 37 59.7

No 4 6.5

Not Serve 21 33.9

Total 62 100.0

14 

Question 19B While a Federal Circuit Judge, have you reviewed the sentence of any

CIRCUIT federal felony offender under Old Law (i.e., "pre-guidelines")?

JUDGES

n %

Yes 49 70.0

No 21 30.0

Total 70 100.0

Missing 6 

Source: U.S. Sentencing Commission, Survey of Article III Judges, Circuit Judge Responses, January 2002. 

3.9

4

A Survey of Article III Judges on the Federal Sentencing Guidelines

Responses of Circuit Judges

Please mark on the scale below to indicate your rating of the federal

purposes of sentencing as specified in 18 U.S.C. § 3553(a)(2).

Page C-11 Appendix C-Circuit Judges
APPENDIX B

Responses of District Judges

Question 1 Considering cases that you have sentenced, how often did the guideline sentences

DISTRICT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 5 1.2 51 11.2 33 7.7 32 7.4 36 8.2 21 5.1 24 7.7 60 14.5

2 32 8.0 73 16.0 48 11.2 73 16.8 63 14.4 29 7.0 28 8.9 65 15.7

3 53 13.2 75 16.5 54 12.6 99 22.8 87 19.9 61 14.7 51 16.3 53 12.8

4 101 25.2 66 14.5 62 14.5 88 20.3 93 21.2 81 19.5 62 19.8 67 16.2

5 117 29.2 74 16.3 103 24.0 78 18.0 86 19.6 118 28.4 72 23.0 80 19.4

6 Almost All 93 23.2 116 25.5 129 30.1 64 14.7 73 16.7 105 25.3 76 24.3 88 21.3

Total 401 100.0 455 100.0 429 100.0 434 100.0 438 100.0 415 100.0 313 100.0 413 100.0

Missing 65 11 37 32 28 51 153 53 

Mean

Median

Question 1

(continued)

n% n% n% n% n% n% n%

11 3.1 57 23.1 200 63.1 164 56.6 93 44.7 59 33.0 48 17.0

261 73.7 104 42.1 33 10.4 36 12.4 28 13.5 54 30.2 158 56.0

82 23.2 86 34.8 84 26.5 90 31.0 87 41.8 66 36.9 76 27.0

354 100.0 247 100.0 317 100.0 290 100.0 208 100.0 179 100.0 282 100.0

Missing 112 219 149 176 258 287 184 

Mean

Source: U.S. Sentencing Commission, Survey of Article III Judges, District Judge Responses, January 2002. 

more than appropriate, or sometimes greater/sometimes less?

Median

Less

Greater

Sometimes

Total 

Robbery Smuggling U.S. Entry

Drug Firearms

Trafficking Trafficking Fraud Theft/Emb.

Larceny/ Alien

For those cases where you believe that the guideline punishment levels do not reflect the 

seriousness of the crime, was it because the punishment was generally less than appropriate, 

iii. Considering only defendants where punishment did not reflect seriousness:

Unlawful

Alien Unlawful

Sentencing Trafficking Trafficking Fraud Theft/Emb. Robbery Smuggling U.S. Entry

All Drug Firearms Larceny/

A Survey of Article III Judges on The Federal Sentencing Guidelines

provide punishment levels that reflect the seriousness of the offense?

ii. Considering only defendants convicted of these crimes:

4.4

5.0

3.9

4.0

4.3

5.0

3.7

4.0

3.8

4.0

4.4

5.0

4.1

4.0

3.7

4.0

2.2

2.0

2.1

2.0

1.6

1.0

1.7

1.0

2.1

2.0

2.0

2.0

2.0

2.0

Page B-1 Appendix B-District Judges
Question 2 Considering cases that you have sentenced, how often did the guideline sentences 

DISTRICT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 59 14.8 62 14.2 91 25.3 175 58.5 177 58.8 142 48.8 131 53.9 145 49.7

2 82 20.5 63 14.4 55 15.3 37 12.4 38 12.6 41 14.1 31 12.8 33 11.3

3 65 16.3 53 12.2 42 11.7 32 10.7 31 10.3 42 14.4 27 11.1 29 9.9

4 78 19.5 78 17.9 60 16.7 29 9.7 27 9.0 20 6.9 18 7.4 21 7.2

5 60 15.0 82 18.8 59 16.4 10 3.3 12 4.0 19 6.5 18 7.4 27 9.2

6 Almost All 56 14.0 98 22.5 52 14.5 16 5.4 16 5.3 27 9.3 18 7.4 37 12.7

Total 400 100.0 436 100.0 359 100.0 299 100.0 301 100.0 291 100.0 243 100.0 292 100.0

Missing 66 30 107 167 165 175 223 174 

Mean

Median

Question 3 Considering cases that you have sentenced, how often did the guideline sentences

DISTRICT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 23 5.7 46 10.6 36 8.8 46 11.0 44 10.4 34 8.7 37 11.8 71 18.5

2 21 5.2 26 6.0 28 6.9 66 15.7 60 14.2 30 7.7 41 13.1 55 14.4

3 38 9.4 31 7.2 33 8.1 78 18.6 77 18.2 62 15.8 50 16.0 48 12.5

4 74 18.3 38 8.8 39 9.6 67 16.0 75 17.7 65 16.6 40 12.8 37 9.7

5 123 30.4 80 18.5 104 25.5 64 15.2 67 15.8 84 21.4 56 17.9 63 16.4

6 Almost All 126 31.1 212 49.0 168 41.2 99 23.6 100 23.6 117 29.8 89 28.4 109 28.5

Total 405 100.0 433 100.0 408 100.0 420 100.0 423 100.0 392 100.0 313 100.0 383 100.0

Missing 61 33 58 46 43 74 153 83 

Mean

Median

Trafficking

Smuggling

Source: U.S. Sentencing Commission, Survey of Article III Judges, District Judge Responses, January 2002. 

Unlawful

Sentencing Fraud Robbery Trafficking Theft/Emb. Smuggling U.S. Entry

Unlawful

ii. Considering only defendants convicted of these crimes:

involve mandatory minimum provisions that affect your ability to impose sentences that

reflect the statutory purposes of sentencing?

ii. Considering only defendants with mandatory minimum convicted of these crimes:

All Drug Firearms Larceny/

Robbery

Alien

U.S. Entry

A Survey of Article III Judges on The Federal Sentencing Guidelines

Trafficking Trafficking Fraud Theft/Emb.

Responses of District Judges

Alien

All Drug Firearms Larceny/

Sentencing

3.4

3.0

3.8

4.0

4.6

5.0

4.7

5.0

afford adequate deterrence to criminal conduct?

4.6

5.0

3.8

4.0

3.9

4.0

4.2

5.0

4.0

4.0

3.8

4.0

3.3

3.0

2.0

1.0

2.0

1.0

2.4

2.0

2.2

1.0

2.5

2.0

Page B-2 Appendix B-District Judges
Question 4 Considering cases that you have sentenced, how often did the guideline sentences 

DISTRICT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 13 3.3 23 5.3 25 6.1 40 9.5 37 8.7 25 6.5 34 11.0 76 19.9

2 15 3.8 30 6.9 22 5.4 72 17.1 65 15.3 38 9.8 49 15.9 58 15.2

3 42 10.7 33 7.6 41 10.0 87 20.6 82 19.3 58 15.0 52 16.9 50 13.1

4 107 27.4 56 13.0 72 17.6 75 17.8 85 20.0 72 18.6 47 15.3 45 11.8

5 118 30.2 100 23.1 103 25.1 62 14.7 63 14.8 88 22.7 46 14.9 52 13.6

6 Almost All 96 24.6 190 44.0 147 35.9 86 20.4 93 21.9 106 27.4 80 26.0 100 26.2

Total 391 100.0 432 100.0 410 100.0 422 100.0 425 100.0 387 100.0 308 100.0 381 100.0

Missing 75 34 56 44 41 79 158 85 

Mean

Median

Question 5 Considering cases that you have sentenced, how often did the guideline sentences, 

vocational training, medical care, or other correctional treatment in the most effective

manner?

DISTRICT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 73 18.8 101 24.6 88 23.4 83 21.7 81 21.5 77 21.3 86 29.8 124 35.9

2 87 22.4 72 17.5 73 19.4 70 18.3 73 19.4 66 18.3 61 21.1 72 20.9

3 53 13.6 69 16.8 78 20.7 72 18.8 69 18.3 69 19.1 40 13.8 44 12.8

4 68 17.5 50 12.2 47 12.5 64 16.8 67 17.8 60 16.6 39 13.5 34 9.9

5 55 14.1 61 14.8 42 11.2 46 12.0 42 11.1 44 12.2 28 9.7 37 10.7

6 Almost All 53 13.6 58 14.1 48 12.8 47 12.3 45 11.9 45 12.5 35 12.1 34 9.9

Total 389 100.0 411 100.0 376 100.0 382 100.0 377 100.0 361 100.0 289 100.0 345 100.0

Missing 77 55 90 84 89 105 177 121 

Mean

Median 3.0

Smuggling U.S. Entry

where rehabilitation was appropriate, provide defendants with needed educational or

All Drug Firearms Larceny/ Alien

ii. Considering only defendants needing services convicted of these crimes:

3.8

A Survey of Article III Judges on The Federal Sentencing Guidelines

Trafficking Fraud Theft/Emb. Robbery

Responses of District Judges

Unlawful

Sentencing Trafficking

protect the public from further crimes of the defendant?

ii. Considering only defendants convicted of these crimes:

All Drug Firearms Larceny/ Alien

4.0

Source: U.S. Sentencing Commission, Survey of Article III Judges, District Judge Responses, January 2002. 

Unlawful

Sentencing Fraud Robbery Trafficking Trafficking Theft/Emb. Smuggling U.S. Entry

3.3

3.0

3.2 3.1

3.0

3.2

3.0

3.1

3.0

3.2

3.0

2.9

2.0

2.7

2.0

4.5

5.0

4.7

5.0

4.6

5.0

3.7

4.0

3.6

4.0

4.2

5.0

3.9

4.0

Page B-3 Appendix B-District Judges
Question 6

DISTRICT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 34 8.5 61 14.0 43 10.4 35 8.3 36 8.6 32 8.1 33 10.4 46 11.9

2 39 9.8 56 12.8 35 8.5 37 8.8 34 8.1 30 7.6 28 8.9 32 8.3

3 40 10.0 68 15.6 45 10.9 73 17.3 66 15.7 48 12.2 41 13.0 44 11.4

4 76 19.0 51 11.7 62 15.0 66 15.7 70 16.7 56 14.2 41 13.0 50 13.0

5 105 26.3 91 20.8 104 25.1 101 24.0 105 25.0 113 28.7 81 25.6 100 25.9

6 Almost All 106 26.5 110 25.2 125 30.2 109 25.9 109 26.0 115 29.2 92 29.1 114 29.5

Total 400 100.0 437 100.0 414 100.0 421 100.0 420 100.0 394 100.0 316 100.0 386 100.0

Missing 66 29 52 45 46 72 150 80 

Mean

Median

Question 7

provide certainty in meeting the purposes of sentencing?

DISTRICT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 28 7.2 39 9.4 26 6.6 31 7.6 28 6.9 25 6.6 25 8.3 41 11.0

2 23 5.9 32 7.7 27 6.8 40 9.9 33 8.1 21 5.5 23 7.6 31 8.3

3 41 10.6 48 11.5 48 12.1 63 15.5 68 16.7 57 15.0 40 13.2 45 12.1

4 82 21.2 71 17.1 70 17.7 81 20.0 80 19.7 60 15.8 50 16.6 60 16.1

5 124 32.0 117 28.1 118 29.8 102 25.1 108 26.5 122 32.2 91 30.1 107 28.7

6 Almost All 89 23.0 109 26.2 107 27.0 89 21.9 90 22.1 94 24.8 73 24.2 89 23.9

Total 387 100.0 416 100.0 396 100.0 406 100.0 407 100.0 379 100.0 302 100.0 373 100.0

Missing 79 50 70 60 59 87 164 93 

Mean

Median

Source: U.S. Sentencing Commission, Survey of Article III Judges, District Judge Responses, January 2002. 

Unlawful

Sentencing Fraud Robbery Trafficking Trafficking Theft/Emb. Smuggling U.S. Entry

ii. Considering only defendants convicted of these crimes:

avoid unwarranted sentence disparities among defendants with similar records who have 

ii. Considering only defendants convicted of these crimes:

All Drug Firearms

been found guilty of similar conduct?

Considering cases that you have sentenced, how often did the guideline sentences

Theft/Emb. Robbery Smuggling

A Survey of Article III Judges on The Federal Sentencing Guidelines

Considering cases that you have sentenced, how often did the guideline sentences 

Sentencing Trafficking Trafficking Fraud

Responses of District Judges

All Drug Firearms Larceny/ Alien

U.S. Entry

Larceny/ Alien Unlawful

4.2

5.0

4.4

5.0

4.2

4.3

5.0

4.3

5.0

4.4

5.0

4.1

4.0

4.2

4.0

4.4

5.0

4.3

5.0

4.1

5.0

4.2

5.0

3.9

4.0 5.0

4.2

5.0

4.3

5.0

4.2

4.0

Page B-4 Appendix B-District Judges
Question 8

DISTRICT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 37 9.4 96 22.2 52 12.7 52 12.3 41 9.7 42 10.7 38 12.3 75 19.3

2 61 15.5 88 20.4 57 13.9 58 13.7 59 13.9 39 9.9 43 14.0 67 17.3

3 75 19.1 82 19.0 68 16.5 96 22.7 99 23.3 58 14.8 53 17.2 60 15.5

4 93 23.7 69 16.0 81 19.7 90 21.3 89 21.0 80 20.4 48 15.6 58 14.9

5 87 22.1 52 12.0 88 21.4 71 16.8 75 17.7 98 25.0 71 23.1 76 19.6

6 Almost All 40 10.2 45 10.4 65 15.8 56 13.2 61 14.4 75 19.1 55 17.9 52 13.4

Total 393 100.0 432 100.0 411 100.0 423 100.0 424 100.0 392 100.0 308 100.0 388 100.0

Missing 73 34 55 43 42 74 158 78 

Mean

Median

Question 9

DISTRICT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 110 27.4 151 34.6 110 26.8 102 24.2 100 23.6 98 24.7 81 26.0 121 30.8

2 71 17.7 110 25.2 82 20.0 69 16.4 62 14.7 58 14.6 47 15.1 75 19.1

3 66 16.4 58 13.3 66 16.1 77 18.2 83 19.6 67 16.9 47 15.1 55 14.0

4 57 14.2 45 10.3 45 10.9 63 14.9 65 15.4 51 12.8 40 12.8 49 12.5

5 65 16.2 38 8.7 67 16.3 75 17.8 73 17.3 73 18.4 58 18.6 56 14.2

6 Almost All 33 8.2 34 7.8 41 10.0 36 8.5 40 9.5 50 12.6 39 12.5 37 9.4

Total 402 100.0 436 100.0 411 100.0 422 100.0 423 100.0 397 100.0 312 100.0 393 100.0

Missing 64 30 55 44 43 69 154 73 

Mean

Median

Responses of District Judges

All Drug Firearms Larceny/ Alien

U.S. Entry

maintain sufficient flexibility to permit individualized sentences when warranted by 

mitigating or aggravating factors not taken into account in the establishment of general 

sentencing practices?

Larceny/ Alien Unlawful

Sentencing Trafficking Trafficking Fraud Theft/Emb. Robbery Smuggling

A Survey of Article III Judges on The Federal Sentencing Guidelines

ii. Considering only defendants convicted of these crimes:

provide fairness in meeting the purposes of sentencing?

ii. Considering only defendants convicted of these crimes:

All Drug Firearms

Considering cases that you have sentenced, how often did the guideline sentences

Considering cases that you have sentenced, how often did the guideline sentences 

Source: U.S. Sentencing Commission, Survey of Article III Judges, District Judge Responses, January 2002. 

Unlawful

Sentencing Fraud Robbery Trafficking Trafficking Theft/Emb. Smuggling U.S. Entry

3.6

4.0

3.1

3.0

3.7

4.0

3.6

4.0

3.7

4.0

4.0

4.0

3.8

4.0

3.4

3.0

3.0

3.0

2.6

2.0

3.0

3.0

3.1

3.0

3.2

3.0

3.2

3.0

3.2

3.0

2.9

3.0

Page B-5 Appendix B-District Judges
Question 10

DISTRICT i.

JUDGES

n% n% n% n% n% n% n% n%

1 Few 26 6.7 79 18.1 36 8.7 55 12.9 47 11.1 33 8.3 28 9.1 72 18.5

2 53 13.6 93 21.3 57 13.7 64 15.1 53 12.5 40 10.1 41 13.3 68 17.5

3 71 18.2 78 17.9 72 17.3 105 24.7 105 24.8 72 18.1 71 23.0 64 16.5

4 96 24.6 75 17.2 87 20.9 78 18.4 90 21.2 83 20.9 43 13.9 60 15.4

5 102 26.2 68 15.6 102 24.5 83 19.5 79 18.6 99 24.9 74 23.9 70 18.0

6 Almost All 42 10.8 43 9.9 62 14.9 40 9.4 50 11.8 70 17.6 52 16.8 55 14.1

Total 390 100.0 436 100.0 416 100.0 425 100.0 424 100.0 397 100.0 309 100.0 389 100.0

Missing 76 30 50 41 42 69 157 77 

Mean

Median

U.S. Entry

Source: U.S. Sentencing Commission, Survey of Article III Judges, District Judge Responses, January 2002. 

A Survey of Article III Judges on The Federal Sentencing Guidelines

 provide just punishment?

ii. Considering only defendants convicted of these crimes:

All Drug Firearms

 Considering cases that you have sentenced, how often did the guideline sentences

Responses of District Judges

Larceny/ Alien Unlawful

Theft/Emb. Robbery Smuggling

3.8 3.4 3.8

Sentencing Trafficking Trafficking Fraud

4.0

3.2

3.0

3.8

4.0 4.0

3.4

3.0 3.0

3.6

4.0

4.0

4.0

Page B-6 Appendix B-District Judges
Question 11 Please identify where you believe that changes in the availability of guideline sentence 

DISTRICT

JUDGES

STRAIGHT n% n% n% n% n% n% n%

PROBATION SENTENCE

More available 244 55.5 126 29.9 165 38.2 175 40.6 85 20.7 104 30.5 167 41.4

Less Available 15 3.4 40 9.5 75 17.4 66 15.3 43 10.5 25 7.3 21 5.2

No change needed 181 41.1 255 60.6 192 44.4 190 44.1 282 68.8 212 62.2 215 53.3

440 100.0 421 100.0 432 100.0 431 100.0 410 100.0 341 100.0 403 100.0

26 45 34 35 56 125 63 

CONFINEMENT n% n% n% n% n% n% n%

More available 274 61.4 151 35.4 200 46.1 198 45.6 113 27.2 114 32.9 151 37.8

Less Available 14 3.1 33 7.7 49 11.3 40 9.2 36 8.7 25 7.2 23 5.8

No change needed 158 35.4 242 56.8 185 42.6 196 45.2 266 64.1 207 59.8 226 56.5

446 100.0 426 100.0 434 100.0 434 100.0 415 100.0 346 100.0 400 100.0

20 40 32 32 51 120 66 

n% n% n% n% n% n% n%

More available 238 54.1 149 35.0 185 42.9 183 42.6 120 29.3 107 31.0 130 32.5

Less Available 14 3.2 21 4.9 26 6.0 25 5.8 21 5.1 14 4.1 19 4.8

No change needed 188 42.7 256 60.1 220 51.0 222 51.6 268 65.5 224 64.9 251 62.8

440 100.0 426 100.0 431 100.0 430 100.0 409 100.0 345 100.0 400 100.0

26 40 35 36 57 121 66 

Missing

 types would better promote the purposes of sentencing.

Part II: Sentence Determination

Drug Weapon Larceny/ Alien Unlawful

Responses of District Judges

Total

PROBATION WITH Trafficking Trafficking Fraud Theft/Emb. U.S. Entry

Larceny/ Alien

Robbery Smuggling

Unlawful

Trafficking Trafficking Fraud Theft/Emb. Robbery Smuggling U.S. Entry

Drug Weapon

Total

Missing

Total

Missing

IMPRISONMENT

PLUS SUP. RELEASE

CONFINEMENT

CONDITIONS

Unlawful

Trafficking Trafficking Fraud Theft/Emb. Robbery Smuggling U.S. Entry

Source: U.S. Sentencing Commission, Survey of Article III Judges, District Judge Responses, January 2002. 

A Survey of Article III Judges on The Federal Sentencing Guidelines

Offense Type

Drug Weapon Larceny/

CONDITIONS

Alien

Page B-7 Appendix B-District Judges
Missing

n% n% n% n% n

451 100.0 3 0.7 240 53.2 208 46.1 15

451 100.0 6 1.3 146 32.4 299 66.3 15

Vocational Skills 449 100.0 3 0.7 132 29.4 314 69.9 17

Mental Conditions 449 100.0 4 0.9 277 61.7 168 37.4 17

Emotional Conditions 448 100.0 10 2.2 210 46.9 228 50.9 18

Physical Conditions 446 100.0 7 1.6 196 43.9 243 54.5 20

Drug Dependence/Abuse 452 100.0 13 2.9 200 44.2 239 52.9 14

Alcohol Dependence/Abuse 449 100.0 13 2.9 188 41.9 248 55.2 17

Employment Record 449 100.0 4 0.9 216 48.1 229 51.0 17

Family Ties/Responsibilities 451 100.0 10 2.2 266 59.0 175 38.8 15

446 100.0 17 3.8 155 34.8 274 61.4 20

Role in the Offense 444 100.0 10 2.3 190 42.8 244 55.0 22

444 100.0 15 3.4 115 25.9 314 70.7 22

Criminal Livelihood 442 100.0 5 1.1 159 36.0 278 62.9 24

444 100.0 17 3.8 191 43.0 236 53.2 22

Employment Contributions 442 100.0 14 3.2 141 31.9 287 64.9 24

445 100.0 15 3.4 209 47.0 221 49.7 21

*Includes military, civic, charitable, or public service

JUDGES characteristics for sentencing determination? 1

Community Ties

Criminal History

A Survey of Article III Judges on the Federal Sentencing Guidelines

Responses of District Judges

Age

Education

Total Less More No Change

Question 12 Based on the cases that you personally have sentenced, do you believe that the

DISTRICT guidelines should place less or more emphasis on any of the following defendant

Source: U.S. Sentencing Commission, Survey of Article III Judges, District Judge Responses, January 2002. 

1

The District Judges listed the following "other" defendant characteristics (number of responses): Some respondents feel that drug quantity/role (2) and rehabilitation (1) 

should receive less emphasis. Others state that the guidelines should place more emphasis on aberrant behavior (1), acceptance of responsibility (2), adequacy of 

counsel (1), any characteristic deemed appropriate (2), drug quantity/role (1), economic compulsion (2), poverty (1), rehabilitation (6), religious (1), restitution (1), and 

if they are unlikely to recidivate (1). The following were listed but not rated: any characteristic the judge deems appropriate (2), guidelines make individualized 

sentences impossible (1), and "three-strikes" law (1).

Public Service*

Prior Good Works

Page B-8 Appendix B-District Judges
DISTRICT

JUDGES

Missing

n% n% n% n% n% n

453 100.0 10 2.2 8 1.8 17 3.8 418 92.3 13

452 100.0 10 2.2 8 1.8 20 4.4 414 91.6 14

452 100.0 16 3.5 32 7.1 46 10.2 358 79.2 14

456 100.0 32 7.0 65 14.3 50 11.0 309 67.8 10

453 100.0 21 4.6 40 8.8 41 9.1 351 77.5 13

448 100.0 7 1.6 34 7.6 73 16.3 334 74.6 18

448 100.0 23 5.1 76 17.0 81 18.1 268 59.8 18

 guidelines avoid unwarranted disparity with respect to the characteristics

DISTRICT listed below?1

JUDGES

Missing

n% n% n% n% n% n

Defendants with Similar

 Records and Conduct 445 100.0 25 5.6 113 25.4 143 32.1 164 36.9 21

Sentencing Circuit 402 100.0 39 9.7 113 28.1 145 36.1 105 26.1 64

Sentencing District 410 100.0 30 7.3 116 28.3 148 36.1 116 28.3 56

Sentencing Judge 433 100.0 23 5.3 95 21.9 181 41.8 134 30.9 33

Source: U.S. Sentencing Commission, Survey of Article III Judges, District Judge Responses, January 2002. 

Always

1

The District Judges listed the following "other" characteristics (number of responses): One respondent states for immigration status (1) the guidelines rarely maintain 

neutrality. Others feel that the guidelines sometimes maintain neutrality with age (1), responsibility to family (1), and responsibility to community (1). A few 

respondents believe for powder/crack cocaine (2) the guidelines often and always maintain neutrality. The following was listed but not rated: these should not maintain 

neutrality (1). 

Total Rarely Sometimes Often

Question 13 Based on the cases that you personally have sentenced, do you believe that the 

 guidelines maintain neutrality with respect to the characteristics listed below?1

Question 14 Based on the cases that you personally have sentenced, do you believe that the

Socioeconomic Status

National Origin

Race

Ethnicity

Gender

Religion

Creed

1

The District Judges listed the following "other" characteristics (number of responses): Some respondents feel for prosecutorial policies (3) unwarranted disparity is 

rarely avoided. Others believe that the guidelines avoid unwarranted disparity sometimes with respect to counsel for defendant (1), probation officer (1), and 

prosecutorial policies (4). One states that prosecutorial policies (1) almost always avoid disparity. The following were listed but not rated: geographic district (1), type 

of drug involved (1), prosecutorial policies (1), and consistency is not necessarily good (1).

A Survey of Article III Judges on the Federal Sentencing Guidelines

Responses of District Judges

Almost 

Total Often Always Rarely Sometimes

Almost 

Page B-9 Appendix B-District Judges
 had no impact on respect for the law for these groups?1

DISTRICT

JUDGES Missing

n% n% n% n% n

Federal Offenders 446 100.0 148 33.2 97 21.7 201 45.1 20

Crime Victims 438 100.0 175 40.0 49 11.2 214 48.9 28

The General Public 446 100.0 152 34.1 59 13.2 235 52.7 20

Source: U.S. Sentencing Commission, Survey of Article III Judges, District Judge Responses, January 2002. 

A Survey of Article III Judges on the Federal Sentencing Guidelines

Responses of District Judges

Total Increase Decrease No Impact

1 The District Judges listed the following "other" groups (number of responses): Respondents believe the guidelines increased respect for the 

law for attorneys (1) and law enforcement (1). Others state for attorneys (4), drug offenders (1), family members (2), judges (7), and minority 

communities (1) the guidelines have decreased respect. Some Judges also mention that there has been no impact on respect for the law for 

drug offenders (1), judges (1), and media (1). The following were listed but not rated: attorneys (3), drug offenders (3), judges (1), and law 

enforcement (1).

Question 15 Do you believe that the sentencing guidelines have increased, decreased, or

Page B-10 Appendix B-District Judges
Question 18

DISTRICT sentencing guideline system's achievements in furthering the general

JUDGES

n %

1 Low Achievement 38 8.5

2 64 14.4

3 69 15.5

4 103 23.1

5 131 29.4

6 High Achievement 40 9.0

Total 445 100.0

Missing 21 

Mean

Median

Question 19 While a Federal District Judge, have you reviewed the sentence of any

DISTRICT federal felony offender under Old Law (i.e., "pre-guidelines")?

JUDGES

n %

Yes 276 60.7

No 179 39.3

Total 455 100.0

Missing 11 

Source: U.S. Sentencing Commission, Survey of Article III Judges, District Judge Responses, January 2002. 

3.8

4.0

A Survey of Article III Judges on the Federal Sentencing Guidelines

Responses of District Judges

Please mark on the scale below to indicate your rating of the federal

purposes of sentencing as specified in 18 U.S.C. § 3553(a)(2).

Page B-11 Appendix B-District Judges
D-1

Appendix D: Data Sources and Statistical Methods

Section A: Data Sources

USSC Monitoring Datasets

The Commission publishes annual datasets on all federal felony and serious misdemeanor

criminal cases sentenced under the guidelines and reported to the Commission in each fiscal year.

Pre-SRA cases sentenced under the “old law” and petty offenses are not included in these datasets.

Each federal court is required by law to transmit several sentencing-related documents to the

Commission. Presentence reports, judgement of conviction forms, statements of reasons, and plea

agreements are received for the vast majority of felony and serious misdemeanor cases. Staff in the

Commission’s Monitoring Unit assign each case a unique identifier and enter information on over

200 variables involving guideline applications, offender characteristics, and case processing factors.

Expansion of the dataset has added elements through the years. A research codebook, which defines

the variables and lists the years for which each variable was coded, is maintained by the Office of

Policy Analysis. Beginning in 1995, the Commission prepared and released a separate Appeals

dataset, which tracks appellate review of sentencing decisions.

Data recordsin themonitoring dataset are established on a per offender/per sentencing basis;

that is, each record is a consolidated sentencing of a single defendant. Multiple defendants in a

single docketed case each appear as a separate record. Multiple counts and multiple indictments

constitute a consolidated sentencing if all counts of conviction were sentenced at the same time and

if a single PSR and guideline range were produced for the defendant. Defendants may appear in

more than one record in a given fiscal year if they were subject to more than one consolidated

sentencing.

Additional information about the annual datasets and information about how to obtain the

datasets and codebooks is found in the Commissions’ Guide to Publications and Resources (USSC,

2001), which can be obtained from the Commission or online at:

http://www.ussc.gov/publicat/Cat2004.pdf.

FPSSIS 

The Federal Probation Sentencing and Supervision Information System [FPSSIS] was

administered by the Administrative Office of the U.S. Courts from 1984 through 1990. Data were

collected by probation officers assigned to perform presentence investigations and to supervise

offenders on probation and parole. When the Sentencing Commission put its own monitoring system

in place, FPSSIS was renamed FPSIS and revamped to eliminate sentencing information now

collected by the Commission and emphasize information relevant to supervision. Additional

information on the FPSSIS dataset and on the use of these data to investigate trends in the rate of

imprisonment during the early years of guidelines implementation can be found at

http://ssdc.ucsd.edu/ssdc/icp09845.html (last visited October 12, 2004). 
D-2

Intensive Study Samples

The Commission has instituted a periodic program of data collection to supplement the

monitoring data routinely collected on all cases. These Intensive Study Samples [ISS] were collected

on random samples of cases sentenced in fiscal years 1995 and 2000. Over 200 additional variables

were collected on each offender. Additional information on drug trafficking cases was collected on

a larger sample of cases [called the DSS]. 

The1995 ISS is a five percent random sample of all offenders consisting of 1,922 cases. The

DSS is a stratified random sample of drug cases, including a 10 percent sample of cases primarily

involving powder cocaine, a 50 percent sample of cases involving methamphetamine, and a 20

percent sample of all other drug types. The DSS consists of 2,767 cases. Information collected

included details of up to thirty criminal history events, including the types of prior offenses

committed by the offender, the date, location, and jurisdiction ofthe offenses, the sanctions that were

imposed, the offender’s supervision history, and the effects of the prior convictions on the

determination of the guidelines’ criminal history score for the current offense. Offender

characteristics collected include the defendant’s family situation, both at the time of sentencing and

as a youth, the defendant’s education and employment history, drug or mental health problems, and

other potentially mitigating factors. For drug cases, information was also collected on the types and

amounts of drugs distributed in various time periods, weapons and victims involved in the offense,

the nature of any organization of which the defendant was a part, the defendant’s primary and most

serious function within the organization, and other measures of the defendant’s culpability.

Information was also collected on the law enforcement techniques used in the case, the charges that

were initially brought against the defendant as well as the ultimate charges of conviction, and the

defendant’s legal responsibility for any weapons involved in the offense.

The 2000 ISS is a 20 percent random sample of all cases sentenced that fiscal year. Data

collected includes most of the same information collected for the 1995 ISS. For drug cases,

somewhat less information on the types and amounts of drugs distributed at various times was

collected. 

Information on the offense in the ISS is based on the probation officer’s description of the

offender’s real offense conduct. This is generally accepted as the most accurate information

available to researchers on offenders’ true criminal conduct, because probation officers can look

beyond the conduct described in indictments and are not legally bound by factual stipulations

contained in plea agreements made by the parties. They are directed by Judicial Conference policy

to report to judges complete descriptions of offenders’ actual criminal conduct as supported by all

reliable evidence. In so far as the probation officer’s report relies on information supplied by the

parties or on information supplied by the case agent, it may understate or overstate the criminal

conduct that might be proven to a jury beyond a reasonable doubt.
D-3

Section B: Analyses in Chapter Two 

The following section describes the variables and procedures used in preparing the

longitudinal graphs contained in Chapter Two. FPSSIS data for the years 1984-1990 and USSC

monitoring data for the years 1991-2002 were used for these analyses. In addition, trends were

checked by using data on sentences imposed obtained from the Administrative Office of the United

States Courts [AO], which is available for all years but does not contain information on sentencing

options. The sentence imposed trends were consistent with the general trends observed using the

FPSSIS and monitoring data. (Results of the analysis using AO data are not reported here, but can

be found in Hofer & Semisch, 1999.) 

Determining Type of Sentence Imposed

The FPSSIS dataset does not contain just a single variable describing the type of sentence

imposed on an offender. Instead, it contains over ten variables relevant to sentencing options: one

describing the amount of prison time imposed, one describing the amount of probation time imposed,

another containing the amount of supervised release imposed, and several more indicating the

imposition of community confinement, mandatory substance abuse treatment, community service,

fines, and restitution. All cases in which either only prison time or some prison time was imposed

were placed in the imprisonment/split sentences category. All cases in which only probation was

ordered were placed in the probation only category. All cases in which some form of intermittent

confinement was imposed in addition to a term of probation were placed in the probation and

alternatives category. Offenders who were ordered to participate in a substance abuse treatment

program or pay restitution or perform community service as a condition of their probation, but for

whom no confinement was ordered, were placed in the probation only category. A separate fine only

category was created, and these cases were excluded from the charts due to the small number of

cases involved.

The USSC Monitoring dataset does contain a single variable, SENTIMP, which differentiates

among the basic sentencing options displayed in our graphs. The variable provides for four separate

categories: No prison or probation (fine only), prison only & prison with confinement conditions

(imprisonment and split sentences), probation & confinement conditions (intermediate and

alternative sanctions), and probation only. For the sake of comparability to the FPSSIS categories

and to previous Commission analyses, fines were excluded from the graphs, and prison only and

prison with alternatives were combined into a single imprisonment/split sentence category.

Probation with alternatives and probation only were used as defined in the monitoring codebook.

Intermediate sanctions include the community and intermittent confinement conditions captured by

the FPSSIS data, and also home confinement sentences from the monitoring dataset. Home

confinement was not available prior to 1989. Note that graph totals in a given year may not sum

to 100% due to rounding.
D-4

Tablt 1 

Stnttnct Type and Adjustments in the Tim.t Served Algorithm 

SENT STAT Minimum Good Con duct Parolt 

Senunc t Type CODE Time Strvtd Time Eligiblt 

18 Stc. 4205(a) 1 0 Ont·third Pre· Guide lint Yes 

18 Stc. 4 20 5 (b )(2) 2 None Prt· Guideline Yes 

18 Stc. 4205(f) A Half Half No 

18 Stc. 5010(a)' 3 None None No 

18 Stc. 5010(b) 3 None Two Years No 

18 Stc. 5010(c) 4 None Two Years Yes 

Federal Juvenile 5 None Pre· Guide lint Yes D tlinquency Act 1974 

18 Stc. 4253(a)1 

6 None Pre· Guide lint Yes 

18 Stc. 3575 4 

B Ont·third Prt· Guideline Yes 

Sentencing Guidelines G None Guideline No 

Anti-Drug Abuse Act H None Pre· Guide lint No 1986 

Notes: 

I. 18 USC 4205 specifies the time of eligibility for release onparolt for non-guideline casts. 

2. 18 USC 5010 (rtpealtd October 12,1984) provided for the imposition of a suspended sentence 

or senunc t to the custody of the A ttomey G tntral in the cast of youthful offenders. 

3. 18 USC 4253(a) refers to the conditions in which an addicttd offender can bt c ommitttd to a 

trt atmtnt f ac ili1;Y. 

4. 18 USC 3515 provided for an inert ast d senunc t for dangerous sp t c ial offt nders. 

T•b1e 2 

Good Conduct Time for Non-Guideline Sentences 

Sentence Length (Months) Good Conduct Time per month (Days) 

Less than 6 1.5 

6 "' 11 6.5 

12 to 35 7.7 

36 to 59 8.7 

60to 119 9.1 + 36.5 days 

120 or more 11.1 + 36.5d•ys 
D-5

Determining Mean Prison Sentences Imposed

Offenders who received no imprisonment whatsoever were excluded from calculations of

mean imprisonment terms. While including non-imprisonment sentences as zero would arguably

give a better picture of the overall severity of punishment for various types of crime in any given

year, it would underestimate imprisonment length for offenders who are sent to prison, particularly

for offenses in which substantial portions of offenders receive probationary sentences. Readers are

cautioned to interpret the mean sentences in conjunction with the data on rates ofimprisonment. All

offenders who received any prison term were counted, including terms that were part of split

sentences.

Estimating average time likely to be served. 

Changes in average sentences imposed tell us little about historic shifts in sentencing and

correctional policy. Prior to the SRA, decisions about when offenders would be released were made

in the majority of cases by the U.S. Parole Commission. Offenders typically served between 40 to

70 percent of their prison term, depending in part on the type of crime, the length of the prison term

that had been imposed by the court, and the amount of good time the offender earned while

incarcerated. Under the SRA, parole was abolished and offenders generally serve between 87 to 100

percent of the sentence imposed, depending largely on the amount of good time they earn while in

prison. Early release to reward participation in a residential drug treatment program or due to a

serious and terminal medical condition can reduce this time somewhat for a minority of offenders.

In order to ensure comparability between estimates of time likely to be served for offenders

sentenced before the SRA with those sentenced after, an estimate for offenders in each group was

computed based on separate algorithms. The time that old law offenders were likely to serve was

estimated using algorithms developed by Commission staff that replicate the operation of the preSRA rules for earning the maximum allowable good time and the operation of the parole guidelines.

The time that new law offenders were likely to serve was estimated also assuming that each offender

received the maximum allowable good-time. For both old law and guideline offenders, the effects

of any mandatory minimum prison terms were also taken into account. 

Table 1 on the preceding page summarizes the different types of offenses and how each was

treated in the algorithm for computing time served. The algorithm first determined preguidelines

good time for cases where this was required (SENTSTAT=0,2,5,6,B,H). The rules used for

determining preguidelines good time are provided in Table 2. For example, sentences of one month

were eligible for 1.5 days of good conduct time, while sentences of two months received 1.5 x 2=

3 days. At the high end, sentences of 120 months received 11.1 days per month plus 36.5 days. Thus

a defendant receiving a 10-year sentence was eligible to receive 1,369 days of good conduct time

(about 3 years and 9 months). 

Following the computation of good conduct time, the time served calculation for old law

defendants convicted under the Anti Drug Abuse Act of 1986 (SENTSTAT=H) was calculated as
D-6

the prison sentence length less good time, because these individuals were not eligible for parole.

Next, for all but one of the offenses eligible for parole in addition to good time

(SENTSTAT=2,5,6,0,B), the estimated time served was taken as the earliest possible release date

after considering both good conduct time and the parole guidelines. Finally, for 18 USC § 5205 and

18 U.S.C. § 3575 sentences (SENTSTAT=0 OR B), the time served was corrected to be one-third

of the original prison sentence if the above calculations had decreased the time served below onethird. In cases where both the upper and lower parole guidelines were missing for cases which were

eligible for parole, the parole guidelines were set to missing as well. The effect of this was to set the

estimated time served to the original sentence less the good conduct time. When the lower guideline

was missing but not the upper, the lower value was set to zero and the value of the parole guideline

(PAL) was set at half the upper guideline. When the upper guideline was missing but not the lower,

then the upper value was assumed to be four years more than the lower value resulting in a value of

the PAL which was two years larger than the lower guideline. The 18 U.S.C. § 5010 sentences had

two variants, section 5010(a) sentences which were under six months and had no good time

corrections, and sentences of 72 months. In the latter case, the good time was 24 months. The

section 5010(c) sentences also had a two-year good time requirement. Once the good time was

computed, then the parole guideline code was invoked similarly to the sentences described earlier.

For new law guideline sentences (SENTSTAT=’G’), the good time discount of 13 percent

was applied by reducing the sentence by 365/419 for sentences between 13 months and life. This

was followed by computing time served with alternatives (OTHERDET), if any, and adding this time

to prison. This procedure was followed for the section 4205(f) sentences, where the time served was

set equal to half the prison term. For probation cases (SENTSTAT=’C’), the time served was equal

to the imprisonment for sentences up to six months, otherwise time served was set equal to missing.

Finally, if SENSTAT was not equal to any of the above categories, time served was set equal to

missing. 

Cases for which a term of imprisonment is ordered but the length is indeterminable are

excluded. Prior to fiscal year 1993, the Commission defined life sentences as 360 months.

However, to more precisely reflect life expectancy of federal criminal defendants and to provide

more accurate length of imprisonment information, life sentences are now defined as 470 months.

Because these estimates assume that offenders earn all available good time credits, they

underestimate the time that will actually be served by offenders who misbehave while incarcerated.

Comparability of time periods is assured, however, because the identical assumption was made for

both old- and new law cases. These estimation methods provide a reasonably accurate portrait of

changes in policies regarding time to be served throughout our study period. It more accurately

represents changes in policy than do data from “release cohorts”—i.e., “average time served until

first release” for groups of offenders released from prison during a given year. These data suffer

from several well-known biases if used to draw conclusions about changes in sentencing policy. See

Albert Biderman, Statistics of Average Time Served Are Fallacious Indicators of the Severity of

Punishment. (Paper presented at the 1995 Annual Meeting of the American Society of Criminology

in Boston, MA.)
D-7

Estimates of time likely to be served are inferior to data on how long prisoners actually spend

behind bars. But obtaining such data requires a very lengthy follow-up time, given that many

offenders receive long sentences. A recent BJS Special Report does the next best thing by

calculating actual time served for offenders who were released during the study period, which

included 72 percent of the offenders in the study. For old law offenders that remained imprisoned,

estimates of the time likely to be served were made using data from release cohorts who committed

similar types of crime. However, these will necessarily be underestimates, particularly for offenders

convicted of serious crimes, because many of these offenders remained incarcerated at the end of the

study period. For new law offenders, the BJS study estimated time likely to be served by multiplying

the sentence imposed by .87—the same as our algorithms. For comparisons of the BJS estimates

with the policy-based algorithms used in this report, see Hofer & Semisch (1999). Although the

general trends are largely the same, the two estimates do not perfectly match, even for new law

offenders. This probably reflects differences in definitions and in the populations studied; the BJS

report utilized the BOP Sentry datafile, while our estimates were based on USSC data.

Determining the Primary Offense Category

Offenses were classified into primary offense categories using the method common to recent

AO and Sentencing Commission reports, i.e., according to the crime type of the statute of conviction

carrying the lengthiest maximum statutory penalty. In cases of ties, the length of any minimum terms

are used, followed by the highest permissible fines. In the small number of cases still tied after

applying these rules, the offense type that best represented the nature of the criminal behavior is

chosen by the coders in the Commission’s Monitoring Unit.

The Commission has used this method for classifying primary offenses since 1991. Prior to

that point the Commission and the AO used similar but slightly different coding schemes. Therefore,

in order to compare the AO’s pre-1991 FPSSIS data to post-1991 USSC monitoring data, the

FPSSIS data was recoded into new offense categories. These new categories were based on similar

rules as those described in the preceding paragraph and resulted in categories as close as possible to

those used in the post-1991 data. What variation does exist between the two codes stems mostly

from the changing statutory definitions and coverage, as well as the sparse documentation for the

pre-1991 data files.

The aggregated offense categories used in Chapter Two were formed by combining the

primary offense categories into relevant groupings in the following manner: 

Drug Trafficking includes drug distribution/manufacture, drug distribution/

manufacture-conspiracy, continuing criminal enterprise, drug distribution-employee

under 21, drug distribution near school, drug import/export, drug distribution to

person under 21, and establish/rent drug operation.

Economic Crimes includes larceny, fraud, embezzlement, forgery/counterfeiting, and

tax offenses
D-8

Immigration includes smuggling, transporting, or harboring an alien, as well as

unlawfully entering or remaining in the United States

Firearm trafficking and possession includes all firearm trafficking offenses as well

as illegal possession and use of a firearm

Violent crimes include 1 and 2 degree murder, manslaughter, kidnapping, sexual st nd

abuse, assault, bank robbery, and arson.

Sexual abuse, exploitation, and transportation include sexual abuse of a minor,

sexual abuse of a ward, criminal sexual abuse, abusive sexual contact, sexual

exploitation, and transportation across state lines for the purpose of engaging in

illegal sex acts.

More detailed offense categories used in thumbnail graphs were defined as follows:

Murder includes first degree murder, felony with death resulting, second degree

murder, and conspiracy to murder (with death resulting).

Manslaughter includes both involuntary and voluntary manslaughter, as well as

negligent homicide in the period covered by the FPSSIS dataset.

Kidnapping/Hostage includes ransom taking and hostage/kidnaping.

Sexual Abuse includes sexual abuse of a minor, sexual abuse of a ward, criminal

sexual abuse, and abusive sexual contact.

Sexual exploitation includes the production, distribution, and possession of

pornography as well as other forms of sexual exploitation

Assault includes attempt to murder, assault with intent to murder, threatening

communication, aggravated assault, conspiracy with attempt to murder, obstructing

or impeding officers, minor assault, and conspiracythat includes assault with attempt

to murder.

Bank Robbery includes both bank and aggravated bank robbery.

Personal or postal robbery, includes those crimes plus car-jacking and other

robberies.

Forgery/counterfeiting includes unlawful production or alteration of bank checks,

currency, or other documents
D-9

Firearm Possession includes unlawful possession of firearms or ammunition.

Firearm Trafficking includes unlawful trafficking in firearms/explosives.

Burglary/Breaking & Entering includes post office burglary, burglary of DEA

premises (pharmacy), burglary of other structure, bank burglary, and burglary of a

residence.

Larceny includes bank larceny, theft from benefits plans, other theft-mail/post office,

receipt/possession of stolen property (not auto), other theft-property, larceny/theftmail/post office, larceny/theft-property (not auto), and theft from labor union.

Fraud includes odometer laws and regulations, insider trading, and fraud and deceit.

Embezzlement includes property embezzlement, embezzlement from labor unions,

postal embezzlement, embezzlement from benefit plans, and bank embezzlement.

Tax offenses includes tax evasion, filing of fraudulent tax returns, and other tax

offenses.

Smuggling, transporting, or harboring an alien includes all offenses associated with

the trafficking of illegal aliens into the United States.

Unlawfully entering or remaining includes illegal entry, illegal re-entry, and illegal

residence in the United States

Contribution of the guidelines to average time served for drug trafficking offenses

In order to estimate the relative contribution of statutory minimums and guideline increases

above those minimums to the average sentence for drug trafficking cases, special analyses were

conducted using all drug trafficking cases sentenced in fiscal year 2001. Of the 24,038 offenders

sentenced for drug trafficking, 2,439 cases were excluded due to missing values. In addition, cases

in which the defendant received the statutory safety valve were excluded, because the safety valve

negates both the mandatoryminimum and the original guideline minimum. Of the remaining 15,764

cases, 8999 were non-departure cases and 6765 were departure cases. For all of these cases, the

statutorily required minimum sentence was subtracted from the actual guideline sentence imposed.

This difference was treated as the guideline contribution to sentence length above and beyond the

amount required by the statutory minimums.
D-10

Section C: Analyses for Chapter Three

Hierarchical Linear Modeling

A multilevel hierarchical model was developed to examine the effect of region upon

sentences imposed in federal cases. A standard ordinaryleast squares regression model would allow

only limited partitioning of variance-covariance components. By incorporating the nested structure

of the federal court system (i.e., judges within courts, courts within districts, districts within circuits),

multilevel hierarchical models allow for the computation of robust standard errors and the

apportionment of variance between the different levels of the data structure.

Three hierarchical models were developed and tested on federal sentencing data from fiscal

year 2001. The first model was an unconditional three-level model, using prison length imposed as

the dependent variable. The individual case occupied level one. The sentencing judge occupied

level two and the federal district occupied level three. (Because visiting judges are not nested in this

way, the small number of cases handled by visiting judges were excluded from the analysis.) No

fixed effects were added to the model and variance components were computed for each level.

Hierarchical models can be created using any number of commercially available software packages

including SAS, Stata, HLM, and Mlwin. The analyses described in this report were conducted using

HLM version 5.0.

The second hierarchical model included the presumptive sentence (i.e., the guideline

minimum or the trumping mandatory minimum, whichever is higher) as a fixed effect at level one.

Since all level-1 predictor variables contemplated or used during this experiment had meaningful

values at X=0, the Natural X Metric was employed to center predictor variables. The explanatory

power of this fixed effect was computed by comparing the overall explanatory power of the

conditional and unconditional models.

The third model took as its dependent variable departure rates, rather than sentence lengths

imposed, and included a district level nested within a circuit level. No fixed effects were included

as control variables. About one-quarter ofthe variation in rates was attributable to the circuits, while

three-quarters was attributable to districts 

Regression Analysis of the Contribution of Different Mechanisms to Sentence Variation

Ordinary least squares (OLS) regression techniques were used to calculate the amount of

variance explained bythe four mechanisms described in Chapter Three—the three types of departure

and placement within the guideline range—using data from fiscal year 2001. The effects of the

guidelines and mandatory minimum statutes were first incorporated into the model using the

presumptive sentence. (Use of the presumptive sentence as a variable to control for legally relevant

factors is discussed further in Section D below.) Dummy variables were then added to the model

indicating whether the offender received any of the three types of departure or a sentence above the

minimum of the guideline or statutory range. All cases with a particular type of departure were

coded as one, all other cases were coded as zero. Among non-departure cases, all cases sentenced
D-11

above the guideline or statutory minimum were coded as one, and all other cases were coded as

zero. Cases with missing values were excluded from the analysis.

The results of this analysis can be used to apportion the contribution of each of the four

mechanisms to sentence variation that is not accounted for by the presumptive sentence. The portion

of this variance that is unwarranted, however, cannot be determined, because of a lack of data

measuring factors that may legitimately determine the extent of departure or placement within the

guidelines range. 

Section D: Analyses in Chapter Four

Controlling for legally relevant factors using the presumptive sentence

Studies of the effects of discrimination in sentencing must control for the effects of legally

relevant differences among groups that may legitimately account for differences in the likelihood of

imprisonment or in average sentence length. The most common method for this has been to gather

data on as many of the factors deemed relevant to sentencing as possible and to model the separate

effects of these factors on sentencing outcomes, using multiple regression analysis. Studies of the

type of sentence imposed (e.g., imprisonment, intermediate sanctions, probation), use Tobit, Logit,

or Probit analyses to assess the differences among groups in the likelihood of receiving any of these

types of sanctions. Studies of variationsin sentence lengths have used ordinary least squares (OLS)

regression to account for the effects of legally relevant and extra-legal factors on the months of

imprisonment imposed.

Before the advent of guidelines, no specific instructions were given to sentencing judges on

the weight with which to give particular legally relevant factors. For that reason, statistical models

allowed the weight of each factor to be determined empirically by the estimation procedures used

in the regression analysis. In addition, as described in Chapter Four, existing studies generally ignore

or mis-specify the effects of mandatory minimum penalty statutes that require a minimum term of

imprisonment for some classes of offenders. In 2001 researchers studying disparity under the

sentencing guidelines of Washington State developed a method that permitted more precise

specification of legally relevant factors (Engen and Gainey, 2001). Instead of including separate

control variables for every legally relevant factor on which data are available, a single variable—the

“presumptive sentence”—controls for the effects of all legally relevant factors taken into account by

the guidelines and the statutes and properly specifies the weights and interactions among them. The

model simply predicts that all defendants will receive the penalty required by law. 

In the Washington State guideline system studied by Engen and Gainey, the midpoint of the

recommended guideline range was the presumptive sentence. For the federal system, the guideline

minimum is the presumptive sentence, based on empirical evidence that that the majority of cases

are sentenced at that point in the range. (See USSC, Sourcebook, 2002, Tb. 29.) The guideline

minimum was calculated taking into account all mandatory minimums and guideline adjustments,

including criminal history category. For example, if the guideline calculation was for the offender
D-12

to be sentenced to 57 to 63 months, the guideline minimum would be 57 months. If that same

offender had a five-year consecutive weapons charge, the guideline minimum would then be 117

months.

Analysis of the effects of race, ethnicity, and gender

The study of the effects of race, ethnicity, and gender for offenders sentenced in fiscal years

1998 through 2002 involved a series of analysis using two dependent variables. The first set

involved the decision by the court whether to imprison the offender (the “in/out” decision); the

second involved the length of time imprisoned offenders would spend incarcerated. For each of

these outcomes, there were five separate populations measured: all offenders, drug offenders, nondrug offenders, males only, and females only. The model for all offenders was also run for the

combined years of 1998-2002, and for each of the five years separately. Only offenders who were

United States citizens and whose guideline and personal information were complete were used in

these analyses.

The “in/out” decision was analyzed using logistic regression. The extra-legal predictive

variables included in the models were: race/ethnicity of the offender (Black and Hispanic offenders

compared to White offenders); the age and the square of the age of the offender; whether the

offender had dependents or not; whether the offender attended college or not; and the gender of the

offender (males compared to females). The legal factors included in the model were: the

presumptive sentence; the type of offense (violent, drug, white collar and “other” offenses compared

to property crimes); the criminal history category of the offender (Categories II, III and IV (or

“medium” category), and Categories V and VI (“high” category) compared to Category I (“low”

category); whether the offender was convicted of a mandatory minimum for a weapon; whether the

offender received a Specific Offense Characteristic (SOC) adjustment for weapon use; the type of

departure in the sentence (substantial assistance, upward and downward departure compared to no

departure); whether the offender went to trial (compared to those who pled); and the zone in the

sentencing table the offender’s offense level and criminal history score placed them in (Zones B, C,

and D compared to Zone A).

Legal factors in addition to the presumptive sentence were included in the model to assess

whether judges took these factors into consideration and weighted them somewhat differently than

the guidelines rules themselves. To accomplish this, the parameter estimate of the presumptive

sentence was restricted to a value of 1.0 (Bushway and Piehl, 2002). By doing this, the legally

relevant factors that contribute to the presumptive sentence were given the weight assigned to them

by the guidelines rules themselves. By including some of the same factors separately in the model,

the extent towhich courts weighted these factors somewhat differently than the guideline rules could

be assessed. Because so many factors influence the presumptive sentence, collinearity with any of

the separate legally relevant factors was not a problem. 

As is common in the literature (Spohn, 2004), the analysis of sentence length used the

logarithm of the length of the sentence imposed as the dependant variable and the logarithm of the

presumptive sentence as a predictor variable (sentences of zero months were assigned a log sentence
D-13

of zero). The independent variables were exactly the same as those used in the “in/out” decision,

except for two items, except that the zone of the sentencing table in which the offender fell was not

used. 

When analyzing the five separate populations, there were some slight differences in the

model. In the “drug cases only” model, the type of drug that was the driving force behind the

sentence imposed was added to the model, and the type of offense variables were excluded. Also,

for the “males only” model and the “females only” model, the gender of offender was excluded from

the model.
D-14

The complete results from the analysis of the “in/out” decision for all years and offenders

combined were as follows. 

 In/Out decision

 Overall

 The LOGISTIC Procedure

 Model Information

 Data Set WORK.OPA

 Response Variable PRISDUM

 Number of Response Levels 2

 Number of Observations 131111

 Model binary logit

 Optimization Technique Fisher's scoring

 Response Profile

 Ordered Total

 Value PRISDUM Frequency

 1 1 106604

 2 0 24507

 Probability modeled is PRISDUM=1.

 Model Convergence Status

 Convergence criterion (GCONV=1E-8) satisfied.

 Model Fit Statistics

 Intercept

 Intercept and

 Criterion Only Covariates

 AIC 126320.36 55930.438

 SC 126330.15 56165.249

 -2 Log L 126318.36 55882.438

 R-Square 0.4156 Max-rescaled R-Square 0.6721

 Testing Global Null Hypothesis: BETA=0

 Test Chi-Square DF Pr > ChiSq

 Likelihood Ratio 70435.9250 23 <.0001

 Score 66322.8765 23 <.0001

 Wald 23240.5769 23 <.0001
D-15

 In/Out decision

 Overall

 The LOGISTIC Procedure

 Analysis of Maximum Likelihood Estimates

 Standard Wald

 Parameter DF Estimate Error Chi-Square Pr > ChiSq

 Intercept 1 -1.8523 0.1057 306.8823 <.0001

 black 1 0.1065 0.0263 16.3572 <.0001

 hisp 1 0.1889 0.0323 34.1422 <.0001

 AGE 1 -0.00379 0.00513 0.5467 0.4597

 age2 1 -0.00020 0.000062 10.4806 0.0012

 educ 1 -0.1428 0.0235 37.0131 <.0001

 male 1 0.2492 0.0247 102.1267 <.0001

 numdep 1 -0.1227 0.0228 29.0296 <.0001

 GLMIN 1 0.0297 0.000756 1539.4431 <.0001

 violent 1 0.9007 0.0850 112.3039 <.0001

 drug 1 0.7629 0.0444 295.0457 <.0001

 whitecoll 1 0.5842 0.0396 217.7955 <.0001

 othtype 1 0.2788 0.0434 41.3074 <.0001

 medcat 1 0.8833 0.0263 1127.3585 <.0001

 highcat 1 1.7462 0.0711 602.6940 <.0001

 IS924C 1 1.4394 0.3456 17.3434 <.0001

 WEAPSOC 1 0.2052 0.0844 5.9085 0.0151

 subasst 1 -3.3542 0.0408 6772.4954 <.0001

 upward 1 2.1702 0.2737 62.8744 <.0001

 downward 1 -2.8978 0.0419 4777.5090 <.0001

 NEWCNVTN 1 0.6906 0.0890 60.2189 <.0001

 zoneb 1 0.8954 0.0354 641.4404 <.0001

 zonec 1 3.7471 0.0482 6053.5024 <.0001

 zoned 1 4.7272 0.0500 8930.7769 <.0001

 Odds Ratio Estimates

 Point 95% Wald

 Effect Estimate Confidence Limits

 black 1.112 1.056 1.171

 hisp 1.208 1.134 1.287

 AGE 0.996 0.986 1.006

 age2 1.000 1.000 1.000

 educ 0.867 0.828 0.908

 male 1.283 1.222 1.347

 numdep 0.885 0.846 0.925

 GLMIN 1.030 1.029 1.032

 violent 2.461 2.084 2.907

 drug 2.144 1.966 2.339

 whitecoll 1.794 1.660 1.938

 othtype 1.322 1.214 1.439

 medcat 2.419 2.297 2.547
D-16

 In/Out decision

 Overall

 The LOGISTIC Procedure

 Odds Ratio Estimates

 Point 95% Wald

 Effect Estimate Confidence Limits

 highcat 5.733 4.987 6.590

 IS924C 4.218 2.142 8.305

 WEAPSOC 1.228 1.041 1.449

 subasst 0.035 0.032 0.038

 upward 8.760 5.123 14.979

 downward 0.055 0.051 0.060

 NEWCNVTN 1.995 1.676 2.375

 zoneb 2.448 2.284 2.624

 zonec 42.399 38.580 46.597

 zoned 112.975 102.425 124.612

 Association of Predicted Probabilities and Observed Responses

 Percent Concordant 95.3 Somers' D 0.907

 Percent Discordant 4.6 Gamma 0.909

 Percent Tied 0.2 Tau-a 0.276

 Pairs 2612544228 c 0.954

The complete results from the analysis of sentence length for all years and offenders combined were as

follows. 

 Regression model

 Overall, restrict glmin

 The REG Procedure

 Model: MODEL1

 Dependent Variable: logsent

NOTE: Restrictions have been applied to parameter estimates.

 Analysis of Variance

 Sum of Mean

 Source DF Squares Square F Value Pr > F

 Model 19 367501 19342 27845.6 <.0001

 Error 131091 91059 0.69462

 Corrected Total 131110 458560

 Root MSE 0.83344 R-Square 0.8014

 Dependent Mean 2.87151 Adj R-Sq 0.8014

 Coeff Var 29.02441
D-17

 Parameter Estimates

 Parameter Standard

 Variable DF Estimate Error t Value Pr > |t|

 Intercept 1 -0.60966 0.02487 -24.51 <.0001

 black 1 0.03744 0.00547 6.85 <.0001

 hisp 1 0.04366 0.00688 6.34 <.0001

 AGE 1 0.00865 0.00120 7.18 <.0001

 age2 1 -0.00014125 0.00001495 -9.45 <.0001

 educ 1 -0.05920 0.00553 -10.70 <.0001

 male 1 0.23871 0.00632 37.79 <.0001

 numdep 1 -0.02476 0.00486 -5.10 <.0001

 logmin 1 1.00000 0 Infty <.0001

 violent 1 0.16061 0.01452 11.06 <.0001

 drug 1 0.12855 0.01086 11.84 <.0001

 whitecoll 1 -0.15266 0.01112 -13.73 <.0001

 othtype 1 0.02484 0.01135 2.19 0.0287

 medcat 1 0.27084 0.00539 50.26 <.0001

 highcat 1 0.35843 0.00730 49.08 <.0001

 IS924C 1 0.03189 0.01357 2.35 0.0187

 WEAPSOC 1 0.07162 0.00873 8.20 <.0001

 subasst 1 -1.06707 0.00584 -182.66 <.0001

 upward 1 0.65144 0.02723 23.93 <.0001

 downward 1 -0.97860 0.00732 -133.64 <.0001

 NEWCNVTN 1 0.13119 0.01092 12.02 <.0001

 RESTRICT -1 -758.54623 312.50988 -2.43 0.0152*

 * Probability computed using beta distribution.