A chart aimed at standardizing the amount of time served as a result of federal criminal cases. Down the lefthand side are severity levels. Across the top are columns for criminal history. In the middle are sentence ranges, in months.

Every crime in the federal criminal code is designated with a severity level by the Federal Sentencing Commission. After conviction, the severity levels of all charges (even those that resulted in an acquittal) in a case are added up. The judge looks at the chart, selects the appropriate criminal history (one for a first time offender, two for a second offence, etc), chooses the sentence range appropriate to the severity level. The range of the judge's discretion is anywhere from 6 months (for sentences less than 24 months) to over 12 months (sentences over 60 months).

Lawyers for the defense and prosecution can submit motions for upward or downward departures from the guidelines, but variations are rare.

The overall effect of these guidelines is to emasculate federal judges in criminal cases, and put the power of sentencing in the hands of politically-appointed US Attorneys. Rather than the traditional idea of plea bargaining, federal criminal negotiation is about charge bargaining, a process of determining which of the miriad charges relevant to any crime will be applied to a particular case.

Source: my attorney, personal experience

The Federal Sentencing Guidelines are a bunch of rules made up by the United States Sentencing Commission to tell federal judges what to do with convicted criminals.

Before the guidelines came around in 1984, judges did most of the sentence-making themselves. Under criminal codes, crimes were lumped into degrees (the Model Penal Code has misdemeanors, three degrees of felonies, and capital offenses), and each degree was given a broad sentencing guideline. The judge would then choose an appropriate sentence based on the relative severity of the crime.

This worked just fine, as long as the judges were rational. However, as anyone who reads the news can tell you, judges are often anything but! In Alaska, for instance, a third-degree felony carried a sentence of 1 to 10 years in prison. One individual was arrested for sexually assaulting and robbing a woman, and was convicted of three third-degree felonies. The judge was sympathetic to the defendant (partly owing to the fact that the defendant was in the Army at the time), and so he gave the lad 3 years in prison, with the possibility of immediate parole. Another judge could have given the guy 30 years! (The obviously lenient sentence was later overturned by the state's high court.)

So the Federal Sentencing Guidelines were issued in an attempt to stop this type of practice in the federal court system. You can take a look at the guidelines by visiting http://www.ussc.gov/2003guid/tabcon03_1.htm. Here's how the guidelines work.

Step 1: The Offense Level

First, the defendant gets a number of points based on which crimes they've been convicted of. For example,

  • Treason and first-degree murder are worth 43 points.
  • Building or transferring weapons of mass destruction for the purpose of attacking the US is worth 42 points.
  • Sex with a minor under 16 is worth 18 points if it's consensual, or 24 if it's coerced.
  • Hijacking an airplane is worth 38 points, or 43 points if people die.
  • Getting caught with a reefer is worth 4 points.
  • Bribing a politician is worth 10 points.
  • Burgling a house is worth 17 points; burgling a business is worth 12.
Some offenses, such as insider trading and fraud, have an accompanying table that determines the offense level based on how much money was involved. Making $1 million on insider trading gets you 24 points; making $400 million gets you 38.

Step 2: The Adjustments

Now that you have a base offense level, it's time to adjust it. Adjustments are points added to or subtracted from the offense level based on factors extraneous to the crime itself. For example, if a crime is motivated by ethnic, sexual, or religious hate, that adds 3 points. Likewise, if a person confesses and accepts responsibility for their action, that subtracts 2 points. There are quite a few possible adjustments based on different factors.

Step 3: Computing Criminal History

Next, the defendant's criminal history is scored separately from the offense level. They get:

  • 3 points for each prior prison sentence greater than 13 months
  • 2 points for each prior sentence of 60 days to 13 months
  • 1 point for each prior sentence less than 60 days (up to 4)
  • 2 points if they committed the crime in question while under a sentence (e.g. probation, parole, escapee)
  • 2 points if they committed the crime less than 2 years after finishing a prison sentence (or 1 point if they were also under a sentence at the time)
  • 1 point for any conviction that was incorporated into a prison sentence (up to 3)
Certain crimes don't count for the purposes of this calculation, prostitution, public drunkenness, and gambling among them.

Once the criminal history score is calculated, the defendant gets lumped into a criminal history category ranging from category I (0 - 1 points) to category VI (more than 12 points).

Step 4: Getting the Sentencing Guideline

To find out what the actual sentencing guideline is, the judge goes to a Sentencing Table, which is a grid that has criminal history categories on the X axis, offense levels on the Y axis, and minimum and maximum sentences in each box. An offense level of 1 carries a sentence of 0 to 6 months; an offense level of 43 carries a sentence of life. All the other offense levels have sentences variable by criminal history. A defendant with an offense level of 25 would get 57 to 71 months if they were a category I offender, and 110 to 137 months if they were a category VI offender.

Step 3 and Step 4 don't apply to "career offenders," or individuals who have committed their third violent or drug-related offense since turning eighteen. Career offenders are placed on a stricter sentencing schedule where life imprisonment starts at an offense level of 37.

Step 5: Determining The Exact Sentence

The judge can now determine what the sentence should be, based on the sentencing guideline.

Substep 5.1: Does the defendant go to prison? If the recommended maximum sentence is 6 months or less, the judge can put the defendant on probation or proscribe a prison sentence within the guideline. If the recommended max is 6 to 12 months, the judge can order house arrest or community confinement in lieu of imprisonment. If the recommended max is 12 to 16 months, the judge has the option to order part of the sentence in prison and part of the sentence under alternative confinement. Otherwise, the sentence is for prison, and prison only.

Substep 5.2: Does the defendant pay a fine? Another table in the Sentencing Guidelines recommends a minimum and maximum fine for each offense level. Generally speaking, the defendant is supposed to pay as much as they can realistically afford, and judges will generally use a defendant's financial information to determine an appropriate fine, within the guidelines if possible. If the defendant is indigent and unlikely to make any money anytime in the future, they don't have to be fined. The Guidelines stipulate that "the amount of the fine should always be sufficient to ensure that the fine, taken together with other sanctions imposed, is punitive."

Substep 5.3: Are there mitigating or aggravating circumstances? The judge can "depart" from the sentencing guideline under certain circumstances. The most obvious of these are crimes in which people are killed, maimed, or deprived of property when the "normal" circumstances of the crime in question would not result in that effect: in these cases, the judge can "depart upward" and impose a stricter sentence. If the defendant helps law enforcement prosecute someone else, they can get a more lenient sentence than the guidelines dictate. The judge can also "depart downward" if the defendant had no prior criminal history and did not premeditate the crime in question. There are many grounds on which a judge can depart, and these are delineated in fairly specific terms within the Guidelines. Under Rule 32(h) of the Federal Rules of Criminal Procedure, the judge has to notify both the prosecution and defense before making a departure that wasn't proposed by either of the parties during sentencing hearings or reports.

What happens if a judge departs too far from the guidelines? The sentence can be appealed to a higher court, which was the procedure in the days before the guidelines existed. The higher court can then affirm or remand the sentence. The prosecution can appeal a ridiculously lenient sentence if they wish: this doesn't fall into the sphere of double jeopardy because the defendant's conviction is already settled.

So, essentially, the sentencing guidelines don't take the sentencing power out of the hands of judges: rather, they restrict it to a certain degree, forcing a judge's sentence to conform to some objective rules. They also place more emphasis on the power of the prosecutor, who can decide which charges to bring against the defendant, and thus (somewhat) determine how severe the defendant's sentence will be under the guidelines.

As an aside: On my first day of criminal law class, the professor asked a simple arithmetic question to the class. When he got a response, he designated that student as Class Mathematician. I didn't think we would actually need a Class Mathematician... until we got to sentencing, of course.

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