Barry L. Johnson
Excerpt from the Sentencing Reform Act
There is established as an independent commission in the judicial branch of the United States a United States Sentencing Commission which shall consist of seven voting members and one nonvoting member.... The purposes of the United States Sentencing Commission are to (1) establish sentencing policies and practices for the Federal criminal justice system that (A) assure the meeting of the purposes of sentencing ... (B) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records that have been found guilty of similar criminal conduct ... and (C) reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process....
The Sentencing Reform Act of 1984 (P.L. No. 98-473, 98 Stat. 1987) marked a fundamental change in federal criminal sentencing policy and practice. Part of the broader Comprehensive Crime Control Act of 1984, the Sentencing Reform Act abolished parole in the federal system (although it did not affect the many state criminal justice systems that continued to use parole) and created the United States Sentencing Commission. This administrative body was given the task of crafting guidelines governing criminal sentencing in federal courts.
FEDERAL SENTENCING PRIOR TO THE SENTENCING REFORM ACT
Prior to the Sentencing Reform Act, federal judges had extremely broad discretion in sentencing. Most criminal statutes provided only broad maximum terms of imprisonment. Federal judges were free to impose any sentence, ranging from probation to the statutory maximum. No meaningful appeal of the sentence was available to the offender. Sentencing decisions therefore reflected each judge's individual notions of justice and views of the purposes of sentencing, and sentences for similar offenses varied dramatically depending on the identity of the sentencing judge. Moreover, discretion in the system was not limited to sentencing judges. The introduction of parole into the federal system in 1910 left each prisoner's release date to the discretion of parole officials, although most prisoners were ineligible for parole until one-third of their sentence was served.
THE DECLINE OF REHABILITATION AS AN IDEAL
The broad discretion of judges and parole officials and the indeterminate length of prison sentences prior to the Sentencing Reform Act stemmed from a concept known as offender rehabilitation. Prison-based rehabilitation programs were designed to reduce crime by helping offenders to function normally in society once their prison terms ended. As many experts in the field of criminal justice saw it, the rehabilitation of offenders required Congress give judges and parole officials sufficient discretion to permit "individualized sentencing." Under such sentencing, judges could tailor the length and nature of the sentence to the specific rehabilitative needs of the individual offender.
By the 1970s, however, studies questioning the effectiveness of prison-based rehabilitation programs in reducing crime led to a widespread loss of faith in the power of prisons to rehabilitate criminals. Many criminologists publicly questioned the effectiveness of prison-based rehabilitation while others challenged the legitimacy of the entire rehabilitation-based sentencing scheme. Theorists such as Andrew von Hirsch advocated a sentencing system that authorized punishment of offenders exclusively in proportion to the seriousness of their crimes. This theory was called "just desserts"n simple terms, offenders would get the sentences they deserved. According to this view, the rehabilitative scheme was illegitimate, because it kept offenders who were not successfully rehabilitated in prison for time periods well in excess of the punishment deserved.
As the rehabilitative ideal declined and the just desserts approach to sentencing gained ground, experts in the field became increasingly aware of the problems created by a sentencing system that gave discretion to judges. The chief problem was that judicial sentencing led to disparities, or inequalities, in sentences set for the same crimes. Judge Marvin Frankel's classic 1973 book, Criminal Sentences: Law Without Order, highlighted this problem. Judge Frankel, a sitting U.S. district judge, noted that "widely unequal sentences are imposed every day in great numbers for crimes and criminals not essentially distinguishable from each other." Judge Frankel explained that unequal treatment of offenders who had committed similar crimes was caused by the virtually unlimited discretion he and his colleagues on the federal bench enjoyed. He charged that this discretion was "terrifying and intolerable for a society that professes devotion to the rule of law." To address this problem, he urged the creation of an administrative agency, a Commission on Sentencing, that would be responsible for enacting rules to guide federal courts in the process of criminal sentencing.
PASSAGE OF THE SENTENCING REFORM ACT
The work of Judge Frankel and other critics of sentencing disparity prompted Senator Edward Kennedy, a Democrat from Massachusetts, to sponsor sentencing reform legislation in 1975. Although early reform efforts failed, Senator Kennedy continued to sponsor reform bills in succeeding terms of Congress.
By the early 1980s the political climate in Washington had changed considerably, as Ronald Reagan entered the White House and Republicans assumed control of Congress. This political shift did not, however, kill the sentencing reform movement. Conservative members of Congress, including Republican Senators Strom Thurmond of South Carolina and Orrin Hatch of Utah, joined forces with liberal sponsors of sentencing reform. This bipartisan support for guidelines-based sentencing reform eventually resulted in the attachment of the Sentencing Reform Act (as part of the Comprehensive Crime Control Act of 1984) to an omnibus funding bill. President Ronald Reagan signed the bill into law on October 12, 1984. With passage of the Sentencing Reform Act, the U.S. Sentencing Commission was born.
THE COMMISSION AND THE GUIDELINES
Congress had two major purposes in enacting the Sentencing Reform Act: first, promoting "honesty in sentencing," and second, reducing "unjustifiably wide" sentencing disparity. Honesty in sentencing referred to the impact of parole. Under parole guidelines, it was not uncommon for an offender who was sentenced to fifteen years to be released on parole after serving only five. Congress addressed this issue by abolishing parole, and creating a system of "real-time" sentencing. In the wake of the Sentencing Reform Act, the sentence imposed by the judge is the sentence served by the offender, subject only to a minor adjustment for "good time" credits, administered by the Bureau of Prisons.
Congress addressed the problem of unwarranted sentencing disparity by creating the commission and instructing it to establish sentencing guidelines to limit and structure the sentencing discretion of federal judges. The commission consisted of seven members, appointed by the president and confirmed by the Senate. At least three members of the commission had to be federal judges, and no more than four commissioners could be affiliated with either major political party.
Although Congress left to the commission the task of crafting the specific guidelines, it did give the commission a number of specific directives. Among them, the Sentencing Reform Act specified that the guidelines were to be "neutral as to the race, sex, national origin, creed, and socioeconomic status of the offender," and that the guidelines should "reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties" of an offender in determining the nature or length of his sentence.
The commission worked from its appointment in October 1985 until April 1987 to create a set of guidelines consistent with congressional directives. The draft guidelines were submitted for public comment and congressional approval, and became effective on November 1, 1987.
THE REACTION TO THE GUIDELINES
Shortly after the guidelines took effect, criminal defendants began filing constitutional challenges to the Sentencing Reform Act. Many judges declared the Sentencing Reform Act unconstitutional, and by the summer of 1988 sentencing in the federal courts was in total disarray. The U.S. Supreme Court finally resolved the constitutional status of the guidelines in its 1989 decision in Mistretta v. United States, holding that the Sentencing Reform Act's creation of the commission and its delegation to the commission of the task of drafting guidelines were constitutionally permissible, clearing the way for the implementation of the guidelines in federal courts across the country.
The guidelines have been in place ever since. However, they remain controversial. Critics complain that they are excessively harsh, mechanical, and inflexible. Prominent judges and scholars have urged total reconsideration of the Sentencing Reform Act and a return to greater judicial discretion in sentencing. To this point, however, Congress has not been inclined to change the policies embodied in the Sentencing Reform Act.
See also: ANTI-DRUG ABUSE ACT; OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968.
Allen, Francis A. The Decline of the Rehabilitative Ideal. New Haven, CT: Yale University Press, 1981.
Committee Report on Sentencing Reform Act. S. Rep. No. 98-225 (1983), reprinted in U.S.C.C.A.N. 3182 (1984).
Frankel, Marvin E. Criminal Sentences: Law Without Order. New York: Hill and Wang, 1973.
Martinson, Robert. "What Works?uestion and Answers About Prison Reform." The Public Interest (Spring 1974): 22.
Nagel, Ilene H. "Structuring Sentencing Discretion: The New Federal Sentencing Guidelines." 80 Journal of Criminal Law and Criminology (1990): 88343.
Stith, Kate, and Jose A. Cabranes. Fear of Judging: Sentencing Guidelines in the Federal Courts. Chicago: University of Chicago Press, 1998.
Stith, Kate, and Steve Y. Koh. "The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines." 28 Wake Forest Law Review 223 (1993).
Von Hirsch, Andrew. Doing Justice: The Choice of Punishments. New York: Hill and Wang, 1976.
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