Deconstruction and Reconstruction of the Sentencing Guidelines Part 2: A Dirty Little Secret

November 26, 2013
By Hanging Out with Carl Gunn



  • The empirical evidence the Sentencing Commission claims to have relied on in formulating the guidelines is “past practice,” i.e., the sentences typically given on average prior to the guidelines.
  • But there’s a dirty little secret – namely, that the Commission completely excluded probationary sentences, which were 38% of all sentences, from its calculation of the averages, so the averages are skewed grossly upward
  • And the Commission has acknowledged that the guidelines are in fact significantly more severe than “past practice” for the most frequently sentenced offenses in federal court, including drug trafficking, immigration offenses, and white collar offenses.



Today’s post in my deconstruction series will be on what the empirical evidence the Sentencing Commission considered was and/or should have been. What the Commission looked to in formulating the original guidelines – according to then Commissioner and Circuit Judge, and now Supreme Court Justice, Breyer – was “past practice.” He explained in a subsequent law review article that the Commission reached “an important compromise [by] decid[ing] to base the Guidelines primarily upon typical, or average, actual past practice,” Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 17 (1988), and asserted that the Commission produced “Guidelines that, by themselves, do not deviate enormously from average past practice,” id. at 24. This is corroborated, though a little less expressly, by the introduction to the guidelines, which speaks of an “empirical approach” based on “the wisdom of looking to those distinctions that judges and legislators have, in fact, made over the course of time.” U.S.S.G. Ch. 1, Pt. A, at 4. And the Supreme Court acknowledged the Commission’s claim about how it developed the guidelines in Rita v. United States, 551 U.S. 338 (2007), noting that the Commission “took an ‘empirical approach’ beginning with an empirical examination of 10,000 presentence reports setting forth what judges had done in the past.” Id. at 349. See also Gall v. United States, 552 U.S. 38, 46 (2007); Kimbrough v. United States, 552 U.S. 85, 96 (2007). But the Rita opinion then added an interesting qualifier – that the Commission had “then modifi[ed] and adjust[ed] past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like.” Rita, 551 U.S. at 349.

Is this use of “past practice” really what happened, however? Not quite. First, the Commission has hidden – or at least brushed over – a dirty little secret. The average sentences it used as a guide for the guidelines (no pun intended) completely excluded probationary sentences, which were 38% of all sentences. SeeUnited States Sentencing Commmission, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements, Ch. 4 (June 18, 1987), available at and linked here. Adding 0 for each of those sentences obviously would have reduced the averages significantly.

Second, the Commission outright prohibited or labeled as “not ordinarily relevant” the consideration of offender characteristics such as employment, family responsibilities, and medical condition, see U.S.S.G. Ch. 5, Pt. H, which courts had almost always considered in the past. The Commission also required – for some offenses – increases in sentences for acquitted and uncharged crimes at the same rate as if the defendant had been convicted of the other crimes, which was probably not what most judges did in their past practice.

And it’s gotten worse. In the words of one commentator, the amendment process has been a “one-way upward ratchet increasingly divorced from considerations of sound public policy and even from the commonsense judgments of frontline sentencing professionals who apply the rules.” Frank Bowman,The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1319-20 (2005). This is a product of (1) Department of Justice influence with the Commission that far outweighs that of the defense bar and (2) Congressional action mandating amendments that are almost always aimed at toughening sentences for the “crime du jour.”

Indeed, the Commission has ultimately acknowledged that its guidelines differ significantly from “past practice.” It acknowledged in a 2004 report on the guidelines’ first 15 years that the guidelines are “significantly more severe than past practice” for “the most frequently sentenced offenses in the federal courts,” including drug trafficking, immigration offenses, and white collar offenses. United States Sentencing Commission,Fifteen Years of Guidelines Sentencing 47 (2004).

So the Commission – or at least the guidelines it’s developed over time – isn’t a wizard; it’s a tiny little man behind a curtain. And it isn’t an emperor with nice new clothes; it’s an emperor with no clothes.

What do we do about that? Expose the tiny little man, see here, and expose the lack of clothes, see here. How? By deconstructing the guidelines. Which I’ll talk about in next week’s post.