Federal Sentencing Guidelines: Background, Legal Analysis, and Policy Options
Released: 2009-03-16T00:00:00

Introduction

On January 12, 2005, the U.S. Supreme Court ruled that the Sixth Amendment right to a trial by jury requires that federal sentencing guidelines be advisory, rather than mandatory. In doing so, the Court struck down a provision in law that made the federal sentencing guidelines mandatory as well as a provision that permitted appellate review of departures from the guidelines. In essence, the Court's ruling gives federal judges discretion in sentencing offenders by not requiring them to adhere to the guidelines; rather, the guidelines can be used by judges on an advisory basis. As a result of the ruling, judges now have discretion in sentencing defendants unless the offense carries a mandatory sentence (as specified in law). While some may view the ruling as an opportunity for federal judges to take into consideration the circumstances unique to each individual offender, thus handing down a sentence that better fits the offender, others fear that federal sentencing will give way to unwarranted disparity and inconsistencies across jurisdictions. The Court has begun to clarify some of the lingering questions regarding the amount of weight to be given to the guidelines and what standards appellate courts should use in assessing the "reasonableness" of a particular sentence. In light of these rulings, the issue for Congress is whether to amend current law to require federal judges to follow guided sentences (hence, codify specified sentencing ranges that are in the guidelines), or to continue the status quo and permit federal judges to use their discretion in sentencing, under certain circumstances.

The issue that brought the matter before the Court was a judge's obligation to move from one guideline maximum to a higher one based on the judge's factual determination. The Court examined "[w]hether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines (USSG) based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant."

This report provides background information on the federal sentencing guidelines. In doing so, the report provides a summary of U.S. penal policy, paying particular attention to such policy at the federal level. The report then discusses legislation enacted in 1984 that created the pre- Booker federal sentencing structure. A legal analysis of the Court's Sixth Amendment jurisprudence leading up to the Booker decision as well as subsequent, related Court decisions follow. Next, the different types of sentencing guidelines, including the one that was approved by Congress that was the basis for the recent U.S. Supreme Court decision, are discussed. The report then provides an analysis of departures from the guidelines under the federal system. The report concludes with an analysis of possible policy options Congress may wish to consider if it chooses to address this issue.

Penal Policy

Historically, the way in which convicted offenders are sentenced in the United States falls under one of two penal policies—indeterminate and determinate sentences. Indeterminate sentencing practices were predominant for several decades, leading up to the major reform efforts undertaken by many states and the federal government in the mid- to late 1970s and early 1980s (see discussion in the next section). Today, however, some states and the federal government have variations of determinate sentencing. Some states, however, continue to operate under indeterminate sentencing.

Early penal policy in the United States served the goals of retribution and punishment. Beginning in 1870, however, rehabilitation became the focus of criminal sentencing, which led to the adoption of an indeterminate sentencing system in the federal penal system. At the time, indeterminate sentencing was seen as the preferred mechanism to rehabilitate offenders, which was the stated goal of punishment. Under the federal indeterminate sentencing scheme, Congress established the penalty range within which the judge imposed a sentence. Typically, after one-third of the sentence was served, a parole board would determine if the offender had been rehabilitated and could be released from prison and placed on parole.

Federal sentencing policy was reexamined by Congress in the early 1970s, and in 1973 a proposal to revise the entire Federal Criminal Code was introduced, which ultimately included a reform of the federal sentencing system. It wasn't until 1984, however, that Congress passed a sentencing reform measure, which abolished indeterminate sentencing at the federal level and created a determinate sentencing structure through the federal sentencing guidelines (see discussion below).

Indeterminate Sentencing

As stated previously, federal sentencing was indeterminate throughout much of the 20 th century. Defendants sentenced under an indeterminate sentencing scheme do not know the exact length of time they will serve. At the federal level, primary control over sentencing rested with the district court. With few exceptions, Congress provided only maximum terms of incarceration for federal crimes, while judges set the minimum sentence in individual cases, and the U.S. Parole Board decided when the offender was released. At the state level, a range of sentences for a particular crime is established according to statute (e.g., 12 to 20 years) and a judge would sentence the defendant to that range. The precise amount of time an offender serves, however, is left to prison officials, usually a parole board. Sentences were indeterminate because the actual length of time that would be served could not be determined at the time of sentencing.

Indeterminate sentencing, once viewed as a major reform designed to individualize the treatment of offenders and facilitate rehabilitation, came under attack because it was perceived as promoting unwarranted disparity in sentences. Critics contended that the unlimited judicial discretion, without documented justification and review by an appellate court, produced sentencing disparities.

The perceived failure of the indeterminate system to "cure" the criminal (usually measured by recidivism rates), coupled with a concern about rising crime rates throughout the nation in the mid-1970s, resulted in experimentation with sentencing systems by several states and the creation of sentencing guidelines at the federal level. Despite these developments, however, indeterminate sentencing remains "the predominate sentencing structure for most states ... although these laws are becoming increasingly determinate in structure ... by greater use of mandatory minimums, truth in sentencing provisions, and reduction in the amount of good time credits an inmate can earn while incarcerated."

Determinate Sentencing

Prior to many states and the federal governments adopting sentencing guidelines and other forms of "structured" sentencing policies, the only alternative to indeterminate sentencing was determinate or "fixed" sentencing. As sentencing policy evolved, so did the scope of determinate sentencing. For example, beginning in the 1970s and continuing into the 1990s, Congress and many states passed legislation that revised sentencing laws and required, in many cases, the mandatory imprisonment of offenders for committing certain types of crimes. In many instances, such legislation required a mandatory minimum term of imprisonment. In addition to mandatory minimum laws, Congress and several states passed legislation that created sentencing commissions and charged them with establishing sentencing guidelines. Congress and some states also passed "three-strikes" provisions, which usually required a life sentence after the third strike (i.e., conviction), and truth-in-sentencing measures, which required an offender to serve a large percentage of his or her sentence.

Many of the current sentencing alternatives to indeterminate sentencing are variations of determinate sentencing. There are usually explicit standards specifying the amount of punishment and a set release date that is not subject to review by an administrative body (i.e., a parole board). Under determinate sentencing, however, time served can be reduced by good time or earned time.

Both indeterminate and determinate sentencing practices have been criticized by many who believe that such practices lead to abuse by criminal justice officials and unwarranted disparities in sentences. Critics of both penal policies contend that such sentences give way to a nonuniform application of sentences across jurisdictions. With respect to determinate sentences, for example, judges sentence offenders to a fixed period based on statute, which some contend does not take into consideration individual offender characteristics. Moreover, they argue that determinate sentences essentially move discretion away from the judge to the charging attorney. Indeterminate sentencing practices, on the other hand, lead to disparities due to the potential for "two defendants committing the same crime under similar circumstances receiving very different sentences depending on a particular judge's sentencing idiosyncrasies."

The Sentencing Reform Act of 1984

In 1984, Congress passed legislation that led to the creation of federal sentencing guidelines. The Sentencing Reform Act of 1984 (Chapter II of the Comprehensive Crime Control Act of 1984; P.L. 98-473 ), in essence, eliminated indeterminate sentencing at the federal level. The act created the United States Sentencing Commission, an independent body within the judicial branch of the federal government and charged it with promulgating guidelines for federal sentencing. The purpose of the Commission was to examine unwarranted disparity in federal sentencing policy, among other things. In establishing sentencing guidelines for federal judges, the Commission took into consideration factors such as (1) the nature and degree of harm caused by the offense; (2) the offender's prior record; (3) public views of the gravity of the offense; (4) the deterrent effect of a particular sentence; and (5) aggravating or mitigating circumstances. In addition to these factors, the Commission also considered characteristics of the offender, such as age, education, vocational skills, and mental or emotional state, among other things. Prior to the Booker decision (discussed below), the guidelines were binding.

In summary, the Sentencing Reform Act reformed the federal sentencing system in the following ways:

It abandoned one of the traditional goals of punishment, rehabilitation , and asserted the following goals: retribution, education, deterrence and incapacitation . It consolidated the power that had been exercised by judges and the U.S. Parole Board to decide the type of punishment and its length by abolishing paroles and creating the U.S. Sentencing Commission and charging it with establishing sentencing guidelines. It made all federal sentences determinate. It authorized appellate review of sentences in which the judge departed from the guidelines and review of other sentences under certain circumstances.

Sixth Amendment Jurisprudence Regarding the Right to Trial By Jury

In a series of cases, the U.S. Supreme Court has held that given the Sixth Amendment right to trial by jury, judges cannot impose sentences beyond the prescribed statutory maximum unless the facts supporting such an increase are found by a jury beyond a reasonable doubt. In Apprendi v. New Jersey (Apprendi) , the Court struck down New Jersey's hate crime law, which allowed a judge to increase a sentence to double the statutory maximum if he or she found, by a preponderance of the evidence, that the defendant acted with a purpose to intimidate an individual or group of individuals because of race. In reversing the lower court's decision, the Court declared that the jury trial and notification clauses of the Sixth Amendment and Due Process Clauses of the Fifth and Fourteenth Amendments embody a principle that insists that, except in the case of recidivists, a judge could not on his own findings sentence a criminal defendant to a term of imprisonment greater than the statutory maximum assigned for the crime for which he had been convicted by the jury.

In Blakely v. Washington (Blakely), the Court held that Washington State's sentencing guidelines violated the Sixth Amendment's guarantee of a trial by jury in criminal cases. Washington State guidelines allowed judges, rather than juries, to make certain findings of fact that increased an offender's sentence. The Court found that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional facts. After Blakely , federal courts were immediately faced with arguments that the USSG also violated the Sixth Amendment. The courts were divided sharply on this issue.

United States v. Booker30 and Beyond

The Court spoke to the application of Blakely to the federal sentencing guidelines in United States v. Booker (Booker) . In Booker , the Supreme Court consolidated two lower court cases and considered them in tandem, United States v. Fanfan and United States v. Booker . Booker was arrested after officers found in his duffle bag 92.5 grams of crack cocaine. He later gave a written statement to the police in which he admitted selling an additional 566 grams of crack cocaine. A jury in the United States District Court for the Western District of Wisconsin found Booker guilty of two counts of possessing at least 50 grams of cocaine base with the intent to distribute it, in violation of 21 U.S.C. § 841(b)(1)(A)(iii). At sentencing, the judge found by a preponderance of the evidence that Booker had distributed 566 grams in addition to the 92.5 grams that the jury found; the judge also found that Booker had obstructed justice. In the absence of the judge's additional findings, Booker would have only faced a maximum sentence of 262 months under the United States Sentencing Guidelines. The judge, however sentenced Booker to 360 months, based on the Guidelines' treatment of the additional cocaine and the obstruction of justice. The United States Court of Appeals for the Seventh Circuit affirmed the conviction but overturned the sentence.

Narcotic agents arrested Fanfan when they discovered 1.25 kilograms of cocaine and 281.6 grams of cocaine base in his vehicle. A jury in the District of Maine found that he possessed "500 or more grams" of cocaine with the intent to distribute, in violation of 21 U.S.C. § 846. At sentencing, the court determined that Fanfan was the "ring leader of a significant drug conspiracy," which, combined with his criminal history, resulted in a sentence of 188 to 235 months under the Guidelines. However, four days before the June 28, 2004, sentencing hearing, the Supreme Court decided Blakely v. Washington , holding that as part of a state sentencing guideline system, a Washington state judge could not find an aggravating fact authorizing a higher sentence than the state statutes otherwise permitted. The sentencing judge in Fanfan considered the effect that Blakely may have on the federal sentencing Guidelines and recalculated the Guidelines based only on the possession of 500 grams and imposed the 78 month maximum for that range.

The Court unanimously agreed that discretionary sentencing guidelines would not implicate a defendant's Sixth Amendment right. Applying its decisions in Apprendi and Blakely, the Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." The Court reasoned that the sentencing guidelines direct a judge in some instances to enhance sentences in a manner which violates this principle. This violation occurs when a judge makes certain factual findings supported by a preponderance of the evidence to enhance a sentence beyond the range otherwise authorized by the jury's verdict or the defendant's admissions.

In rejecting the government's arguments against Blakely's applicability to the federal sentencing guidelines (guidelines), the Court found the fact that the guidelines were developed by the United States Sentencing Commission rather than by Congress was constitutionally insignificant. Moreover, the Court found that Blakely's application to the guidelines was not precluded or contradicted by recent cases dealing with other issues including perjury and the Double Jeopardy clause. Finally, the Court noted that a separation of powers argument was precluded by its decision in Mistretta v. United States.

In the first opinion, the Court sought to restore the jury's significance in its finding of the underlying crime. However, in the remedial portion of the decision, the majority gave judges more discretion in sentencing. With Justice Ginsburg joining the four dissenting judges from the first part (Justices Breyer, O'Connor, Kennedy and Chief Justice Rehnquist), the Court held unconstitutional two provisions of the Sentencing Reform Act (SRA): 18 U.S.C. §3553(b)(1), which makes the guidelines mandatory, and 18 U.S.C. §3742(e), which sets forth standards of review for appeals of departures from the mandatory guidelines.

To reach this conclusion, the majority evaluated the likely effect of the constitutional requirement on the SRA's language, history and basic purpose. In other words, the Court answered the question of what "Congress would have intended" in light of the Court's constitutional holding. The Supreme Court based its decision to delete the mandatory requirement of the guidelines on the supposition that, given the choice, Congress would not have enacted a mandatory system modified to accommodate Blakely . This majority considered three options: (1) invalidating the act in its entirety; (2) engrafting the Sixth Amendment "jury trial" requirement; and (3) severance and excision of the offending parts of the SRA. The Breyer majority opined that Congress would have preferred "the total invalidation of the Act to an Act with the Court's Sixth Amendment requirement engrafted onto it." In addition, it concluded that Congress would have preferred the "excision of some of the Act, namely the Act's mandatory language to the invalidation of the entire Act." The Breyer majority noted that severance and excision was closer to Congress' intended system by "maintaining a strong connection between the sentence imposed and the offender's real conduct...." As such, the Court concluded that 18 U.S.C. §3553(b)(1) and 18 U.S.C. §3742(e) should be severed and excised to match Congress' intent of increased uniformity of sentencing. The Court called upon Congress to decide whether its declaration of judicial discretion merits legislative action.

Post-Booker Legal Issues

Retroactivity

In Booker's aftermath, questions remain regarding the decision's retroactivity. It appears that the Booker Court did not intend that every case on appeal be remanded for resentencing. Rather, appellate courts were directed "to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the 'plain-error' test." Although the Supreme Court did not address the issue of its retroactivity on collateral review, the Court's decision in Schriro v. Summerlin , may provide guidance on the point. Generally, the question of retroactivity turns on whether the Court announced a new rule and whether the new rule is substantive (in which case it may apply retroactively) or procedural (in which case it would not apply retroactively unless it qualified as "watershed"). The Summerlin Court concluded that its previous decision in Ring v. Arizona holding that "any increase in a defendant's authorized punishment contingent on the finding of a fact, including eligibility for the death penalty must be found by a jury beyond a reasonable doubt" cannot be treated as a new substantive rule, a rule that "alters the range of conduct or the class of persons that the law punishes." As such, the Summerlin Court held that Ring is not retroactive on collateral review. In McReynolds v. United States, a lower court found that Booker , like Apprendi and Ring , must be treated as a procedural decision for purposes of retroactivity analysis. As such, the court concluded that Booker does not apply retroactively to criminal cases that became final before its issuance on January 12, 2005.

Reasonableness

Due to the severance of 18 U.S.C. §3553(b)(1) and 18 U.S.C. §3742(e) district courts are not bound to apply the guidelines. However, they must consult and consider the guidelines when sentencing. In addition, the Court preserved a right to appeal. A sentence that is outside the guidelines-determined range is subject to reversal if it fails to meet a "reasonableness" standard, a term the Court did not define. Some may contend that this lack of definition for "unreasonableness" may signal a return to pre-guideline sentencing disparities. For example, Justice Scalia noted in his dissent from the opinion's second holding, "what I anticipate will happen is that 'unreasonableness' review will produce a discordant symphony of different standards, varying from court to court and judge to judge." Justice Breyer's majority felt that the "reasonableness" standard of review would not be a foreign concept to appellate courts as they have experience in dealing with reviews of departures and reviews of sentences imposed in the absence of applicable guidelines. As such, this majority feels that it is fair to assume that appellate judges will prove capable of handling the task. However, subsequent to the Booker decision, circuits have been split as to the use of a presumption of reasonableness for within-guidelines sentences.

In Rita v. United States , the Court provided some guidance on how appellate courts should undertake the "reasonableness" review of a lower court's sentencing decision. Mr. Rita was convicted of perjury, making false statements, and obstructing justice. A pre-sentencing report calculated the applicable guideline range of 33-41 months. After hearing sentencing arguments from both sides, the judge imposed a sentence of 33 months. On appeal, the defendant argued that his 33-month sentence was "unreasonable" because (1) it did not adequately take into account "the defendant's history and characteristics," and (2) it "is greater than necessary to comply with the purposes of the sentencing set forth in 18 U.S.C. § 3553(a)(2)." The Fourth Circuit stated that a sentence imposed within properly calculated guidelines range is presumptively reasonable. As such, the court rejected Mr. Rita's arguments and upheld the sentence. The issue before the Supreme Court was whether a presumption of reasonableness should apply to a sentence within the Federal Sentencing Guidelines.

Justice Breyer, writing for the Court, held that an appellate court may view the Guideline range as presumptively reasonable, although the presumption is non-binding. The plurality also concluded that the guidelines are rightly owed a presumption of reasonableness as the guidelines embody the culmination of an academic effort to craft ranges which accurately reflect the severity of the charged conduct, while balancing statutory considerations and seeking uniformity and predictability in sentences. However, according to the Court, this presumption is applicable only on appellate review. As such, a sentencing judge is apparently forbidden from using a similar presumption that the guideline sentence is a correct or reasonable one. Rather, the sentencing judge, after determining the guideline range, may decide that the guideline sentence

should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the "heartland" to which the Commission intends individual Guidelines to apply, U.S.S.G. §5K2.0, perhaps because the Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or perhaps the case warrants a different sentence regardless. See Rule 32(f). Thus, the sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure.

As such, the Court affirmed the broad sentencing discretion district judges possess under Booker and stated that they may impose non-guideline sentences by departing or applying §3553(a). However, the Court also stressed the importance of providing reasons for the sentencing decision. These reasons may be brief when a sentencing judge imposes a guideline sentence. However, the sentencing judge must respond when a "party contests the Guidelines sentence generally under §3553(a) - that is argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in a proper way—or argues for departure[.]"

While the guidelines can be considered reasonable as a starting point for appellate review, the plurality cautions that this should not be interpreted to be obligatory. Justice Stevens, in a concurrence in part signed by Justice Ginsburg, appears to pick up on this point and seeks to draw a distinction between the process described in Rita and prior practices that were deemed unconstitutional in Apprendi and Booker . Justice Souter, the lone dissenter in the case, appears to be concerned that affording the Guideline range a presumption of reasonableness moves the federal sentencing system back in the direction of the prior mandatory scheme that was found unconstitutional in Booker , and is incongruous with the Sixth Amendment protections outlined in Apprendi .

In the aftermath of this decision, it appears that, while it is permissible for appellate courts to apply a non-binding presumption of reasonableness to within-guidelines sentences, questions linger as to what factors the appellate courts may or should consider to overcome the presumption. Moreover, given that the Court apparently approved only one method of reviewing sentences, questions remain as to other methods the Court might approve and whether the acceptable methods of appellate review apply in other instances where sentences are not within guideline range.

In Gall v. United States and Kimbrough v. United States , the Court provided additional clarification to both sentencing and appellate courts as to crafting and reviewing sentences in a post- Booker regime. In Gall , the Court ruled that judges may deviate from the guidelines without having to demonstrate that "extraordinary circumstances" required sentencing outside the guidelines. Gall, while in college, joined a criminal enterprise to sell "ecstasy". Gall withdrew from the enterprise and obtained steady employment and ultimately became a successful entrepreneur. Approximately three years after withdrawing from the enterprise, Gall pleaded guilty to conspiracy to distribute ecstasy. The guideline range from this crime was imprisonment between 30 to 37 months. However, the sentencing judge gave him 36 months on probation, largely based on Gall's most recent behavior. The Eighth Circuit reversed the decision on the ground that a sentence outside the guidelines must be supported by "extraordinary circumstances."

In a 7-2 decision, the Court disagreed and held that the acceptable method of appellate review for all sentences, whether inside, just outside, or significantly outside the guidelines range, was a deferential abuse-of-discretion standard. Justice Stevens writing for the majority rejected a presumption of unreasonableness for sentences outside the guidelines range. As such, the appellate court must first ensure that the sentencing court followed proper procedure to include correctly calculating the guidelines range and considering the §3553(a) factors with appropriate explanation. The appellate court may consider the extent of any deviation from the guidelines range. However, the appellate court "must give due deference to the district court's decision that the §3553(a) factors, on a whole, justify the extent of the variance." The fact that an appellate court would have concluded a different sentence was more appropriate, "is insufficient to justify reversal of the district court."

Similarly, In Kimbrough v. United States , another 7-2 decision, the Court held that a sentence outside the guidelines range is not per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powered cocaine offenses. In reaching its decision, the Court found that the cocaine guidelines, like all other guidelines, are only advisory. As such, the cocaine guidelines are just one of the factors warranting consideration under §3553(a) when determining an appropriate sentence. Under relevant statutes, Kimbrough pleaded guilty to a myriad of offenses including conspiracy to distribute crack and powder cocaine; possession with intent to distribute more than 50 grams of crack; possession with intent to distribute powder; and possession of a firearm in furtherance of a drug-trafficking offense. Kimbrough's plea subjected him to a minimum prison term of 15 years and a maximum of life. The applicable guidelines range was 19 to 22.5 years. The district court judge found that a sentence within this range would have been greater than necessary to achieve the sentencing purposes of §3553(a). In making its determination, the district court took into account Kimbrough's "history and characteristics" and also took exception with the relative treatment of crack and powdered cocaine.

As in Gall , the Court noted that the district court followed appropriate procedure by properly calculating and considering the guidelines range. In addition, the district court addressed the relevant §3553 factors in crafting its sentence. The Court noted that the district court "homed in on the particular circumstances of Kimbrough's case and accorded weight to the U.S. Sentencing Commission's consistent and emphatic position that the crack/powder disparity is at odds with §3553(a)." As such, the Court found that a reviewing court "could not rationally conclude that the ...reduction Kimbrough received qualified as an abuse of discretion."

Taken together, these cases arguably provide federal district court judges some discretion in crafting reasonable sentences, regardless of whether the sentence falls within or outside the guidelines range. It would appear that judges have more flexibility in determining sentences in drug cases as judges can disagree with the crack versus cocaine disparity. For example, in Spears v. United States , the Court clarified its Kimbrough ruling by holding that district court judges "are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines." It is unclear as to whether a court would recognize such judicial discretion in other areas of the law. In addition, it should be noted that this flexibility does not eliminate the mandatory minimums established by statute under federal law.

Sentencing Guidelines

Sentencing guidelines can be presumptive, statutory, advisory or voluntary. The most notable of these are the presumptive sentencing guidelines, which had been in place at the federal level at the time of the Supreme Court's ruling in Booker .

Presumptive Sentencing Guidelines

Prior to the Court's ruling in Booker , the federal sentencing guidelines were characterized as being presumptive, rather than statutory, advisory or voluntary. Presumptive sentencing guidelines are contained in or based on legislation, which are adopted by a legislatively created body, usually a sentencing commission. Presumptive sentencing guidelines set a range of penalties for an offense that is based on the seriousness of the offense and the defendant's criminal history. "The guidelines are presumptive in the sense that they set sentencing standards for individual cases that were presumed to be appropriate and that judges were expected to follow" unless they documented the reasons for departing. At the federal level, after the guidelines have been adopted by the sentencing commission they are submitted to Congress and they become effective, barring other congressional action. While judges were required to adhere to the guidelines, they could depart from them. Departures under presumptive sentencing guidelines, however, are subject to appellate review.

Statutory Sentencing Guidelines

Statutory sentencing guidelines are created by a legislative body. Statutory sentencing guidelines are sometimes confused with presumptive sentencing guidelines. While both types of guidelines are ultimately authorized by a legislative body, statutory sentencing guidelines are directly authorized by a legislative body, while presumptive sentencing guidelines are established by a sentencing commission that is usually legislatively created.

Advisory or Voluntary Sentencing Guidelines

Under an advisory or voluntary sentencing guideline scheme, judges are not required to follow the sentences set forth in the guidelines but can use them as a reference. As previously discussed, the Booker ruling made the federal sentencing guidelines advisory.

States' Sentencing Guidelines

According to the National Center for State Courts, as of 2004, 23 states and the District of Columbia had implemented presumptive, statutory, or voluntary/advisory sentencing guidelines. Some states, however, may only have presumptive sentencing guidelines that are applicable to specific offenses (e.g., certain felonies). Unlike the federal system pre- Booker , states that have adopted presumptive sentencing guidelines generally do not have enhancement factors built into the guidelines' structure.

Departures from the Guidelines

Departures from the sentencing guidelines in the federal system can take three forms: substantial assistance departures, other downward departures and upward departures . Substantial assistance departures are a form of downward departures and occur when a defendant provides substantial assistance to the prosecution. Of the three types of departures, upward departures are used least often and substantial assistance departures are used most often. While departures are available for judges, the guidelines explicitly prescribe when a judge can depart from the guidelines. As the Supreme Court asserted in the Booker ruling, "... departures are not available in every case, and in fact are unavailable in most. In most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible."

Prior to the Booker decision, Congress weighed in on the issue of downward departures in the 108 th Congress when an amendment to the PROTECT Act was passed that restricted the grounds upon which a federal judge could apply a downward departures. Among other things, the amendment struck language in 18 U.S.C. §3742(e) that required appellate courts to "give due deference to the district court's application of the guidelines to the facts" with respect to departures and in cases wherein the district court failed to provide a written statement of reasons for the sentence.

The majority of federal sentences are handed down under the guidelines, with approximately 1% of federal sentences falling outside the guideline's jurisdiction. The following figures ( Figures 1 and 2 ) depict aggregate departure data pre-and post- Booker (2002 and 2007).

As Figure 1 shows, the majority of pre-Booker departures were downward departures. The majority of the downward departures occurred due to the defendant providing substantial assistance to the prosecution or the judge finding mitigating factors, which in both cases would necessitate a downward departure. In 2003, federal judges departed from the sentencing guidelines 29.7% of the time, of which less than 1% of the departures were upward departures. These figures have remained relatively constant for the years preceding 2003. Since the Booker decision, however, the percentage of sentences that fell within the guideline range has dropped, while the percentages for both upward and downward departures have increased, as discussed below.

Figure 2 depicts a similar picture as in Figure 1 with respect to the majority of sentences falling within the guideline range. However, there were some variances. In 2007, there was an 8% drop in federal judges sentencing within the guideline range, when compared to 2003. As a result, both downward and upward departures increased by almost 8% and a half percent, respectively. In order to fully understand the changes in federal judicial sentencing practices post- Booker , one would need to take a more nuance examination of the data at the district and circuit court level.

In both years examined, the data revealed that the vast majority of departures were downward departures. While proponents view downward departures as necessary in a structured system because their use allows judges to individualize sentences, critics argue that the frequent use of downward departures is a mechanism for judges to circumvent the limits imposed on them through the sentencing guidelines. Moreover, such critics argue that departures should be eliminated because they produce unwarranted disparity. Unlike the structure that exists with the prescribed sentencing ranges in the guidelines, departures provide an opportunity for judges to sentence outside that range. Critics contend that permitting a judge to sentence outside the specified range could be problematic because judges could potentially increase or decrease a defendant's sentence substantially, depending on the circumstances. Departures, however, are not always viewed as a negative tool. Some view departures as a mechanism for judges to tailor a sentence that reflects the totality of circumstances regarding an offender and the offense.

Possible Policy Consideration

In light of the Court's ruling in Booker and its subsequent rulings in Gall and Kimrough , the issue for Congress is whether to amend current law to require federal judges to follow guided sentences, or continue to permit federal judges to use their discretion in sentencing, under certain circumstances. Following is a discussion and analysis of several selected options Congress could consider.

Maintain the Sentencing Guidelines

One option Congress may wish to consider could be to maintain the sentencing guidelines by specifying mandatory minimum sentences and increasing the top of each guideline range to a statutory maximum for specified offenses (hence, codify specified sentencing ranges that are in the guidelines). In essence, this option would require any upward departures to coincide with the statutory maximum for the offense in question, in which case a statutory maximum would have to be specified. This option was first presented to the U.S. Sentencing Commission shortly after the U.S. Supreme Court decision in Blakely by Frank Bowman, who concluded with respect to such an option:

The practical effect of such an amendment would be to preserve current federal practice almost unchanged. Guidelines factors would not be elements. They could still constitutionally be determined by post-conviction judicial findings of fact.... The only theoretical difference would be that judges could sentence defendants above the top of the current guideline ranges without the formality of an upward departure....

Provide Jury Trials

Congress could consider a measure that has been implemented in Kansas. Kansas had presumptive sentencing guidelines that were invalidated by the state's supreme court. In response to the court ruling, the state's legislature chose to retain the sentencing structure by incorporating jury fact-finding as the basis for enhanced sentences. Under this scheme, for each enhancement that would increase the sentence beyond the guideline maximum for which the defendant did not waive his or her rights, the judge has the option of trying aggravating factors before the jury, either during the main trial or in a separate, bifurcated proceeding. The jury would have to find that the enhanced factors exist beyond a reasonable doubt in order for the enhanced sentence to be applicable. While this option may satisfy constitutional questions, it may prove to be an expensive and time-consuming.

Permit Judicial Discretion in Sentencing

Congress may also allow federal judges to exercise their discretion in sentencing in cases where Congress has not specified a mandatory term of sentence. This option could possibly mirror the indeterminate sentencing scheme that was in place prior to the sentencing reform effort in 1984. While such an option would allow judges to individualize sentences to the extent that Congress has not established a mandatory sentence for the offense, it could also result in a lack of uniformity due to judges applying different sentences across jurisdictions.