BLOG BULLETS

• There’s a five-step process you can use to “deconstruct” a guideline.
• Step 1 is to track the history of the guideline, through Commission reports and other records and through the amendment history of the guidelines.
• Steps 2, 3, and 4 are to look for analysis and criticism of the guideline in the Commission’s own reports and empirical research, outside empirical research, and law review articles and other commentary.
• Step 5 is to look for judicial criticism, both explicitly in written opinions and implicitly in frequent variance from the guideline.

NOW THE BLOG

Continuing from last week’s post, just how do we “deconstruct” a guideline? Drawing on various presentations and resources from our Federal Public Defender Sentencing Resource Counsel group, whose wonderful resources you can find on the www.fd.org and www.src-project.org websites, I offer five steps for you to take (along with others you may think of yourself).

Step 1: Track the history of the guideline and the reasons for that history. You can find the “past practice,” i.e., the pre-guidelines average, for many guidelines in Chapter 4 of the Sentencing Commission’s Supplementary Report on the Initial Sentencing Guidelines and Policy Statements, which is available at www.fd.org and also linked here, and if your guideline isn’t included, find anecdotal or other evidence of what it was like in the “old days.” You can find the amendment history in the “historical note” at the end of each guideline in the guidelines manual. You can find the reasons for the amendments in Appendix C of the guidelines manual; can sometimes glean the reasons for an amendment from public comments and/or testimony at Sentencing Commission hearings, some of which are available at www.fd.org; and can find out whether an amendment was the product of a Congressional directive by checking a list of Congressional directives which can be found at www.fd.org and is also linked here. An amendment adopted in response to a Congressional directive is almost by definition not the “product of empirical data and national experience” (see my prior posts about this being the supposed basis for the guidelines); rather, it’s a product of the Congressional directive.

Step 2: Look in the Sentencing Commission’s own studies and reports for its own acknowledgment and admissions about problems with the guideline. There are a number of Sentencing Commission studies and reports out there now – which can be found on both the Sentencing Commission’s own website and the Federal Public Defender Sentencing Resource Counsel website at www.src-project.org – that acknowledge various problems with various guidelines. Some examples include a report on problems with the child pornography guideline, a report on problems with the career offender guideline and other criminal history issues, and a report acknowledging the correlation between reduced recidivism and certain offender characteristics such as age, employment, and family circumstances.

Step 3: Don’t be limited to the Sentencing Commission’s empirical research, especially because it may not have done any (see Step 1 above). There may be DOJ studies that are helpful; as one example, see Miles D. Harer, Federal Bureau of Prisons, Office of Research and Evaluation,Recidivism Among Federal Prisoners Released in 1987 54 (Aug. 4, 1994), available at www.bop.gov, on the correlation of certain offender characteristics with reduced recidivism. There are also multiple other studies by academic and non-profit groups, many of which are cited in various of the materials which can be found on thewww.fd.org and www.src-project.org websites.

Step 4: Look for law review articles and other commentary on your guideline. Articles and/or papers can be found on www.fd.org, including a paper written on the child pornography guideline by an Assistant Federal Public Defender that’s been cited in numerous court opinions, see, e.g., United States v. Henderson, 649 F.3d 955, 965 (9th Cir. 2011) (Berzon, J., concurring); United States v. Grober, 624 F.3d 592, 597 (3d Cir. 2010); United States v. Dorvee, 616 F.3d 174, 185 (2d Cir. 2010); articles in the more practice- and commentary-oriented Federal Sentencing Reporter published by the Vera Institute of Justice; and articles in more academic law reviews, see, e.g.,Doug Keller, Why the Prior Conviction Sentencing Enhancements in the Illegal Re-entry Cases Are Unjust and Unjustified (and Unreasonable Too), 51 Bost. Coll. L. Rev. 719 (2010); Frank Bowman, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315 (2005).

Step 5: Look for judicial criticism of the guideline. The most obvious is explicit judicial criticism in judicial opinions; see as examples, the Supreme Court’s characterization of the guideline at issue in Pepper v. United States, 131 S. Ct. 1229 (2011) as “rest[ing] on wholly unconvincing policy rationales,” id. at 1247; criticism of the child pornography guideline in United States v. Henderson, supra, United States v. Dorvee, supra, and a multitude of district court opinions; criticism of the illegal reentry guideline in United States v. Galvez-Barrios, 355 F. Supp. 2d 958 (E.D. Wis. 2005); and criticism of the theft/fraud guideline in United States v. Emmenegger, 329 F. Supp. 2d 416 (S.D.N.Y. 2004). But don’t look for just explicit judicial criticism. Look for implicit judicial criticism as well, in the form of statistics or other documentation showing that sentencing courts are frequently varying from the guideline. Looking to this sort of “feedback” is consistent with Justice Breyer’s recognition, in the law review article I cited in last week’s post,that “the Commission’s system is evolutionary [and it] can continually revise its Guidelines . . . through the analysis of information that is obtained while the Guidelines are actually in effect.” Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 17 (1988). It is also consistent with the Supreme Court’s recognition in Rita v. United States, 551 U.S. 338 (2007) that the Commission’s work is “ongoing,” that courts in individual cases will depart or, after Booker, simply impose a non-guidelines sentence and set forth their reasons, and that those results should then be collected and considered by the Commission. Id.at 350.

Steps 6 and beyond: Don’t be limited by these first five steps. Think of other places to look for information and/or evidence exposing the guideline as non-empirical, irrational, or otherwise inappropriate “advice” (which is of course all it is after Booker).

For this week, that’s enough. Next week we’ll talk about some examples.