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October 20, 2011

Do we need to worry about (complex) guidelines enhancing disparity or severity or both?

I know I did not leave enough time at the end of class today for a complete discussion of all the early results of the guideline part of the Rob Anon sentencing exercise, but I went slow today because (1) I wanted to get out more general themes before jumping into the USSG weeds, and (2) I wanted to make sure everyone have a chance to work through the FSG basics for Rob Anon before our sentencing law weed-whacking the rest of the semester.  Nevertheless, even the hasty report of different offense level calculations for Rob prompts the question in the title of this post. 

Consider especially the disparity in guideline sentencing ranges that could result from even seemingly minor differences in offense level and criminal history computations.   Specifically, if the person who calculated Rob's offense level to be "only" 31 also had him in criminal history category II, his guideline range would have been 121-151 months in federal prison (roughly 10 to 12.5 years).  Meanwhile, if  whomever calculated Rob's offense level to be 35 also had him in criminal history category III, then his guideline range would have been 210-262 months in federal prison (roughly 17.5 to nearly 22 years).  And, of course, anyone scoring Rob's offense level at 39 or above would be getting a guideline range calling for near or above the 25-year statutory maximum for his offense of conviction.

Obviously, all of these guideline-calculated sentences are significantly longer than the 8 years imposed by many in our pre-guideline group-sentencing exercise earlier this week.  And, remember, in the pre-SRA federal sentencing world with parole eligibility, even a sentence of 25 years (300 months) for Rob would in fact mean he would become eligible for release on parole in 100 months.  In the post-SRA world in which defendants can only earn a 15% reduction for good time, Rob would actually have to serve at least 103 months of even a sentence of "only" 121 months.

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October 20, 2011 in Class activities, Scope of imprisonment | Permalink


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This is more closely related to our death penalty discussions, but the Eastern State Penitentiary Facebook site (yes, I follow it), posted this interesting article: http://blogs.phillymag.com/the_philly_post/2011/10/20/pennsylvania-death-penalty/

Posted by: Heather Williams | Oct 21, 2011 8:32:19 AM

While I understand the purpose of the Rob Anon exercise in demonstrating to us first-hand how difficult the U.S. Sentencing Guidelines can be, at the same time, this was, for many of us, the first time using it. Sure, we were perplexed a bit as to what factors needed to be taken into account, but I think that was expected. The common sense notion is the more you work with it, the easier it gets.

In looking realistically at the “whos” that use the Guidelines most frequently (namely federal judges, AUSAs, public defenders, and pretrial/probation officers), I expect these professions to know the rules of the game before they start playing ball, so to speak. I expect them to have experience with the Guidelines and know preciously what they are doing when commuting a sentence range given they are playing in federal court and with an actual person’s life. If, however, there is a slip-up along the way by one of the aforementioned “whos,” I would nevertheless still expect another “who” to catch the mistake. At least from my experience, when sitting in on federal sentencing proceedings, judges will explicitly lay out both the total offense level and criminal history category before a final sentence is imposed. I suppose in this manner, if there is a disparity or clear error, an appeal can appropriately be made.

Posted by: Isabella | Oct 22, 2011 4:53:59 PM

As everyone noted in the last post, working through the guidelines was certainly not as easy as I had expected. Trying it three times yielded three different results, thus making me understand how disparity could easily ensue. At the same time, however, I also have come to appreciate the commentary that accompanies each section. Actually taking the time to read through parts of it answered a lot of the questions that I had in determining how many points to assign to particular aspects of the crime. This makes me somewhat agree with Isabella’s point: Judges, who have much greater experience with and understanding of the minute details of the Guidelines, are likely to minimize the types of disparity that our class displayed.

On the other hand, though, it is incredibly interesting to see how one mistake can increase/decrease the severity of punishment. For a quick way to examine some of this, I highly recommend playing around with this Federal Guidelines Sentencing Calculator.... http://www.sentencing.us/

Just as an example, I found it kind of amazing that depending on how you characterize the injury sustained by the old man (as either a “bodily injury” or a “serious bodily injury”) altered the sentence range from188-235 months to 235-293 months!

Posted by: Branden Albaugh | Oct 24, 2011 2:07:02 PM

Focusing specifically on parole eligibility, I think the lack of parole eligibility after serving 1/3 of a sentence under the new Guidelines structure (which only permits a 15% reduction in sentence) can be both good and bad with regard to avoiding unwanted sentencing disparity. What was good about the pre-Guidelines 1/3 system was that allowing for a 2/3 reduction could significantly reduce the disparity in sentences between similarly situated individuals. For example, if two men convicted of similar offenses were sentenced to 6 and 12 years, this would be a 6-year disparity. Obviously, a 2/3 reduction for each of them would result in 2 and 4 year sentences, which is only a two-year disparity. If the 15% rule was applied to the original 6 and 12 year sentences, the disparity would not be reduced as far. However, the tradeoff with the 2/3 rule is that if parole is not granted equally, then the disparity can be increased to an even greater extent (the original 6 and 12 year sentences could become 2 and 12 years instead. By contrast, if the 15% rule were misapplied to the original 6 and 12 year sentences, then the resulting disparity would not be as severe as when the 2/3 rule was misapplied. So the 2/3 rule allows for less disparity if applied evenly, but more disparity when misapplied.

Posted by: Harrison Markel | Oct 25, 2011 10:47:45 AM

I agree with the comments that the disparity should be eliminated to a greater extent with the experience of the judges in applying the guidelines. The thing that stood out most for me was the severity of the sentences that the guidelines imposed as comparted with the sentences which we each imposed at our own discretion. Adding to this the fact that parole has been eliminated, it is clear that the exact same crime will result in a much greater sentence under the guidelines than otherwise. This concerns me because what we decided was a "fair" punishment is now not possible (disregarding that the guidelines are now advisory). The only solace I take is that someone who was appointed to a sentencing commission and has a lot more expertise in the area than I do drafted these guidelines and hopefully tried to make the sentences "fair" in their minds.

Posted by: Sean B. | Oct 25, 2011 11:36:24 AM

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