The UC Hastings Symposium on Federal Sentencing Reform taught me a great deal. I learned from all of the presenters, including federal prosecutors, defense attorneys, and law professors. Mostly, I valued what I learned from the federal judges who contributed. U.S. District Court Judge Charles Breyer was the first of five judges who spoke at the symposium.

During Judge Breyer’s keynote, I learned a great deal about the history behind the Sentence Reform Act, the U.S. Sentencing Commission, and Mandatory-Minimum Sentences. In addition to being a senior judge in the Northern District of California, Judge Breyer also serves as one of five people on the United States Sentencing Commission.

 

Sentence Reform Act (SRA):

The Sentencing Reform Act established the United States Sentencing Commission during the mid 1980s. A group of judges and other societal leaders made up the commission. They aspired to bring uniformity to sanctions that were imposed criminal defendants.

Ending sentencing discrepancies wasn’t easy. Congress set wide sentencing ranges by statute when it passed laws. For example, consider a crime like tax evasion. Congress would have imposed a statutory sentencing range for people convicted of tax evasion (or any other crime). Hypothetically, the statutory sentencing range could have begun with a minimum term of probation or a monetary fine. The statutory maximum sentence for that crime, hypothetically, may have been a term of 20 years. Federal judges could sentence people who were convicted of the crime to any term within crime’s statutory range, from probation to 20 years.

Our country has more than 90 different federal judicial districts and each district has several district court judges. Today we have nearly 1,000 district court judges in the United States. Prior to the Sentence Reform Act, each of those judges had the power to use his or her wisdom when evaluating an appropriate sentence. Yet no one saw fairness. One judge might sentence a defendant to probation for a crime, while another judge might sentence a co-defendant who had similar circumstances and committed the same type of crime to 20 years in prison.

During his keynote, Judge Breyer told us that since members of the Sentencing Commission had their own opinion, it was difficult to find a consensus. Members of the Commission could not resolve their discrepancies about an appropriate sentencing range.

 

Federal Sentencing Guidelines:

They settled on a scientific approach, studying federal sentences that were imposed on 10,000 different federal cases. That data helped members of the Commission come up with a set of average sentencing ranges—the heartland—that judges imposed uniformly on defendants across the country. From those average sentence lengths, the Commission established the Federal Sentencing Guidelines.

The federal sentencing guidelines were controversial from the start. The guidelines mandated that judges use the guidelines when sentencing defendants for crimes that were committed after November 1, 1987. Many judges objected because those guidelines tied their hands, lessening their powers. On the other hand, the guidelines enhanced a prosecutor’s power. If a prosecutor wanted to expose a defendant to a lengthy sentence, the prosecutor could manipulate the charge. The charge would tie a judge’s hands when it came to sentencing.

In addition to the Federal Sentencing Guidelines, Congress introduced Mandatory Minimum sentences into the equation. Some crimes would require minimum sentences. Those minimum sentences, particularly for drug crimes, could begin at five years and extend to 30 years, depending on the offense.

 

New Sentence Reform Begins:

Although nothing has been done to abolish mandatory-minimum sentences, reforms have led to a change in the guidelines. Indeed, Mandatory “guideline” sentences changed with a groundbreaking case that the Supreme Court decided about a decade ago. In U.S. v. Booker, the guidelines became “advisory” rather than “mandatory.” Judges could resume using their discretion on what would constitute an appropriate sentence. Still, if mandatory-minimum sentences were required, they had to deal with those.

During the symposium I learned that federal judges sentence defendants within the guidelines only about 50% of the time. In the Northern District of California, judges only sentence within the guideline range 38% of the time. That information led me to want to learn more. The key question:

What steps could a defendant take to persuade a judge to impose the lowest-possible sentence?

Those who want an answer to such a question may find value the guidance that four federal judges expressed about their thoughts on sentencing.

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