1/16—Class 1

 Topics will change; fed sentencing guidelines on commission website

Anything wrong/not wrong w/ Selective Capacitation (Wilson Article)?

 Why we punish—incapacitate, retribution, rehabilitation, general deterrence
o Other reasons—crime control, restore victim, etc...
 Who—
 What Gets Considered—prior criminal history (convictions), harm, culpability,
o Sacrifice consideration of factors bearing on culpability

1/23—Class 2
Federal Sentencing Reform Movement—
 States did this too with sentencing reform done by commissions
 Dramatic change w/ Sentencing Reform Act, however, many still criticize the SRA
o Not as much dissension w/in states
 Different theory—states are more homogeneous and easier for states to deal w/ this and their populations as
opposed to a larger federal system

Frankel Reading (father of federal sentencing reform)—

 Describes a dynamic that stayed in place until 1987
 Pre-guidelines regime was not adequate
 No req’t to explain a sentencing outcome, no guidance, unwritten menu of items depending on which
courtroom you were in seemed to matter (ie someone committing perjury)
 In state court, plea comes w/ a sentenced attached to it and you know what sentence is going to be. In federal
system, you plead guilty blind and you don’t know what the sentence is going to be
o In old federal days, Pros was to get conviction and let judge take care of sentencing; about 8 years ago
the new regime changed the role of judges and pros w/ newly invoked mandatory minimums
o One effect of the new regime which caused a lot of judges to gripe, is that restricting the discretion of
judges allowed prosecutors to become more empowered and gave them power w/ re: to sentencing
outcomes by using mandatory sentencing minimums
o Judges don’t like mandatory minimum sentences and look at them as anathemas whereas congress
looks at them as a necessary
 Pre-guidelines era of wasteland in the law
 Note—the fact that a Prosecutor can influence the outcome of a case based on the charge brought forth
assumes that there is plea bargaining (some systems don’t have it); if there is plea bargaining the max sentence
is the constraining feature, and a system that focuses on the charge vs. real offense factors (guidelines are there
so Pros doesn’t have undue influence and the guidelines are there w/ some factors to insert them into
sentencing phase and have a modified system that diminishes pros ability to influence the sentencing outcome
bc no matter the charge, you’re always going to consider what is going to happen)
o Max sentence in a real offense system different than a mixed system re: plea bargaining under Rule 11
in fed system
 Frankel wanted system w/ guided discretion as opposed to pre-guideline regime of no guidelines and judge
could act on whatever they wanted w/ no review; no we have a system where the sentences can be reviewed
based on his call for a nat’l commission to come up w/ detailed calculus of sentencing factors that would guide
discretion
o Wanted to have present and former inmates as part of the commission as well as prison guards,
lawyers, judges, criminologists, sociologists,
 Questioned wisdom of Bureau of Prisons be part of DOJ
 Goals of Sentencing for Frankel—
o Goals of sentencing are often pull in different directions w/ one another; every sentence must be guided
w/ all 4 of the sentencing goals according to fed sentencing guidelines

1
  In new regime, you get fairness and certainty
o Fairness is achieved through the abolition of parol in federal court
o Pre-1987 under Rule 35, judges could reduce sentences for any reason
 Guideline sentence after 1987 gets rid of uncertainty
 Need “Good-Time” built into system to incentivize people to get out while in prison and help
control inmates
o Want to get rid of unwarranted sentencing disparities w/ Def’s who have been convicted of similar
conduct
 There are regional disparities that are persistent and crop up even though judges sentence w/in
the range permitted
o Goal—certainty, fairness, and abolition of parol through the new regime while maintaining flexibility to
permit individualized sentences w/ mitigating or aggregating factories not taken into account

Sentencing Commission Created by Sentencing Reform Act—28 USC Sec 991-998 (APA doesn’t apply) —
 No more than 3 fed judges appointed by Pres w/ advice and consent of Senate; 4 repubs/dems and 3 of the
other, have member of AG’s office; missing defense
o 2 protecting mechanisms—good cause removal and something else
 Political bipartisanship
 994(p)—Commission proposes amendments not later than the 1st of May, accompanied by statements of reason
from time to time and become effective in November, unless there’s an act of Congress that rejects them
o If the expert agency that formulates policy that is beneficial to “be sentenced defendants” a member of
Congress can say that they didn’t vote for the reduction in sentences, the commission did it
o Turning point in ’95 when commission amended the crack cocaine guidelines which punished crack
cocaine offenses w/ 1 gram the same as cocaine up to 100 grams (the famous 100 to 1 ratio) by 4-3
vote; commission came to realization that it created unwarranted disparities in sentenced, was racist bc
crack is in inner cities and cocaine in more affluent areas
 Bring this down to 1 to 1 ratio and then Congress passes statute that undoes the amendment by
the commission that got rid of the 100 to 1 ratio
 Congress took on micro-managing role and passed multiple statutes telling commission to revisit
certain things or to overrule the commissions changes that they proposed
o Commission won’t pass anything unless unanimous agreement by the commission to ensure that the
coast is clear, but this means that the commission won’t do anything bold or make a move unless
everyone agreed w/ what it did, which essentially disabled it due to fear of being overruled by Congress
again.
 NOTE—SCOTUS finds in Booker in 2005 that the regime is unconstitutional of judges having to impose a
sentence w/in the mandatory range; makes the sentencing guidelines advisory
 994(m)—new regime has increased severity in the sentencing

Why we Punish: Sec 3553—

 Factors to consider when imposing a sentence:
 3553(a)—sentence should be sufficient, but not greater than necessary to meet the goals set forth in paragraph
2, which are the four goals of deterrence, incapacitation, retribution, and ;
o also look to nature and circumstances of the offense and the history of the defendant; the sentences
available, the sentencing range issued by the sentencing commission
o The need to provide restitution
 3553(b)—judges for many years would look to factors they have to consider in 3553(a), but then look to 3553(d)
which seemed to trump all of them;
o (b)(1) was found to be unconstitutional by Booker in 2005 and excised that and said the guidelines are
advisory and judges are not required to impose a mandatory sentence
o Guidelines satisfied 6th Amendment in Booker when they became advisory and were no longer
mandatory

2
  Think about what the original commission did re: offender characteristics (age, family ties, employment history,
etc…). what’d the commission do?
o 994(d) says in establishing categories of Def in guidelines, commission shall consider the following
matters among others … and lists 11 things including education, vocational skills, family ties, community
ties
 In 994(e) then contradicts this and says that judge should not consider 5 of them
 There’s a compromise in the guidelines—some people wanted to consider prior arrests bc
they’re indicative of recidivism rates; others didn’t want to do that bc arrests aren’t same as
convictions—this gets resolved by only having prior convictions in guideline computations
 However, to get prior convictions in and not arrests, there was a compromise made
that took prior arrests which wouldn’t raise the guidelines of prior arrests and did only
so for convictions, but then offender characteristics were taken off of the table
(994)(e) does this).
 When the guidelines were rendered advisory only and judges were obligated to consider
all of the factors in 3553(a) including the history and characteristics of the Def, the
upshot of that was to require judges to consider features of any particular case and
made the GL’s less effective
o 1 side of debate was that GL’s should have great weight bc they reflect expert
agency’s considered determinations of what the sentence should be in a
particular case
 Presumption of probation in 994(j)—congress saying that commission shall ensure that the GL’s reflect the
general appropriateness other than imprisonment (probation) in cases where Def is 1st time offender and hasn’t
been convicted prior to this for an otherwise serious offense
o Otherwise serious offense = serious offense akin to a crime of violence, but you can’t argue that
Congress had in mind a body of offenses as to which judges ought to be told in the GL’s presumptively
probation (could be features of the def/offense that trump the directive)
 The original commission makes a fundamentally normative determination by providing a
definition in the first GL’s by quoting 994(j) and says under pre-GL’s sentencing there were too
many probationary sentences given out
 Commission is defining what is an otherwise serious offense and it is categorical—everyone is a
serious offense and the presumption of probation is therefore gone
o If the commission had put in language that said there was no crime of violence for a first time offender
or an otherwise serious crime, then sentencing outcomes would be much different
Mandatory Minimums—
 Congress passes mandatory minimums for kingpins (10 yrs) and managers (5 yrs) and enhanced maximums (off
the rack judge charges goes mandatory minimum for manages 5-40 yrs and kingpins 10-life)
o There can be enhancements based on the type and quantity of drug being sold
o Decision of commission to link the GL’s caused drug trafficking sentences to increase 2 ½ times