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November 15, 2020

Are there any "offender characteristics" that you think must be considered at sentencing? If so, how?

As we continue digging into the challenging and dynamic topics of offender characteristics at sentencing, I urge you to think about what offender characteristics should or must always be considered at federal sentencing with two particular "whos" in mind: the US Sentencing Commission and US District Judges.  

The challenge for the USSC 

You should closely review Problem 5-4 in the text and the notes that follow (pp. 322-26).  You will see that Congress in the Sentencing Reform Act of 1984 instructed the USSC to consider the "relevance" of various offender factors at sentencing (and only declared a few factors like race and sex and socio-economic status off-limits).  In other words, Congress gave the Sentencing Commission considerable discretion to include various offender factors in guideline calculations, but the USSC has historically deemed nearly all offender factors — such as "disadvantaged upbringing" and "drug or alcohol dependence" and "education and vocational skills" and "employment record" and "family ties and responsibilities" — as either "not relevant" or "not ordinarily relevant" at sentencing.

Notably, in a 2014 law review article, a former Chair of the US Sentencing Commission, US District Judge William Sessions, criticized the federal sentencing guidelines for having too often and for too long declared offender characteristics to be "prohibited or discouraged factors" because of a fear these factors could too readily lead "courts to issue different sentences to defendants with similar records who have been found guilty of similar conduct."  In his article, titled "The Relevance of Offender Characteristics in a Guideline System," Judge Sessions asserted that the "Commission needs to embrace the relevance of human factors and educate judges and practitioners as to their impact on the sentencing process;" drawing from his own sentencing experiences, Judge Sessions suggested that factors like "past drug dependence" and "positive response under pretrial supervision" ought to be the basis for new "guidelines that encourage consideration of those characteristics where appropriate."  

Do you agree that it is problematic that the federal sentencing guidelines largely seek to exclude consideration of offender characteristics and that the US Sentencing Commission consider a new approach to these matters?  Judge Sessions says "the Sentencing Commission should take more of an initiative to collect data on offender characteristics, draft guidelines that encourage consideration of those characteristics where appropriate, and educate judges about the reasons why those characteristics are relevant should what might these guidelines look like."  If you were serving on the USSC, what kinds of "data on offender characteristics" might you want to collect and what kind of "draft guidelines" might you start to compose?


The challenge for US District Judges

Even when the guidelines were mandatory before Booker, US District Judges had some limited authority to give some effect to offender characteristics at sentencing when selecting an exact sentence within the guideline range.  (For example, a judge impressed by a defendant's charity work could reference this personal history when giving a 51-month term to a defendant facing a guideline sentencing range of 51-63 months.)  But US District Judges before Booker largely understood that most "usual" offender characteristics were of little importance within the guideline structures, and that reality in turn often led defense attorneys to spend little or no time developing any offender-based mitigating factors to present to judges at sentencing.

But when Booker made the guidelines advisory, US District Judges became obligated to focus upon and follow the statutory instructions in 18 U.S.C. § 3553(a).  And the very first subsection of this statutory provision states judges "shall consider the nature and circumstances of the offense and the history and characteristics of the defendant" (emphasis added).  In other words, Congress gave US District Judges a formal instruction to consider offender considerations, and this instruction became a focus point for advocacy and decision-making after Booker.  This provision was also stressed by US District Judge Robert Pratt when he initially sentenced Brian Gall to 36 months of probation rather than within the guidelines sentencing range of 30-37 months in prison.  The Eighth Circuit reversed Judge Pratt's sentence as unreasonable, but the Supreme Court reversed that reversal (excerpted in our text at pp. 341-48) to essentially confirm that offender characteristics could play a much larger role in federal sentencing after Booker.

If you were able to advise a group of federal judges about modern sentencing under the advisory guideline system, what advice might you give circa 2020 as to how best to approach the consideration of offender characteristics?  Are there any offender characteristics that you think federal district judges should or must always consider at sentencing?  If so, how should judges now approach these matters without creating the risk of unjust sentencing disparities or other potential problems?

November 15, 2020 in Class activities, Guideline sentencing systems, Who decides | Permalink


I think consideration of offender characteristics is important when it comes to sentencing, particularly some of the characteristics the USSC has considered irrelevant, like disadvantaged upbringing, drug or alcohol dependence, and the others listed above. I think sentencing decisions should not be isolated to the context of the offense, especially when one of the consequences of sentencing may be a lifetime of lawful discrimination in employment, housing, ability to vote or serve on a jury, and more. Going back to the beginning of this class, I think most of the theories of punishment support such considerations. First, under rehabilitation it is clear why such offender characteristics are important. In order to rehabilitate an offender, the characteristics are particularly vital in discovering the root of what led to the offender committing the crime, and therefore can assist in helping the offender not recidivate. Next, under deterrence, specific deterrence will be most effective with the consideration of such characteristics of the individual offender. Although specific deterrence supports these considerations, general deterrence in some ways relies on not considering individual characteristics. However, general deterrence also relies on an acceptance that offenders all have the freedom and ability to choose whether or not they commit offenses and a degree of rationality to weigh the action against punishment. Consideration of offender characteristics can aid in determining the effectiveness of general deterrence and how such deterrence should be implemented in the criminal legal system. For example, consideration of drug dependence may demonstrate that the rationality and cost-benefit analysis necessary for general deterrence does not apply when an offender struggles with addiction. Finally, such considerations are important under retribution because they are vital in determining how to properly calculate the sentence deserved and ensuring punishment is no more than necessary. Retributivism favors a more individualized approach, and thus consideration of the offender characteristics listed above would be necessary. Overall, I think widening the scope of considerations in determining sentencing will do more good than harm in achieving an appropriate sentence.

Posted by: Elaine | Nov 16, 2020 12:41:17 PM

Federal district judges ought to consider offender characteristics. Offender behavior does not happen in a vacuum. Rather, a person's decisions and actions are a reflection of his or her contextual settings and personal characteristics. I think one characteristic in particular - the offender's young age - must be considered in every case. There is a proliferation of research showing that adolescents' brains do not fully develop until age 25. In effect, this means that juvenile offenders lack maturity and have an underdeveloped sense of responsibility, and they are more vulnerable and susceptible to negative influences. Age matters in regard to rational decision making in these situations, plain and simple, so we ought to consider it in sentencing determinations. By considering age, we also make certain theories of punishment (i.e., general and specific deterrence) more workable. For example, harsh sentencing outcomes, standing alone, generally fail to act as a deterrent to juvenile offenders whose judgment can be clouded and irrational. When judges consider characteristics like age, they are able to develop more realistic sentencing structures that better accomplish goals related to driving deterrence and reducing recidivism.

Posted by: Shelby Mann | Nov 18, 2020 3:56:20 PM

I think offender characteristics should be considered at sentencing. Criminal behavior does not usually happen as isolated incidents. There are often factors from the offender’s background that affect the criminal act. So, I think ignoring the offender characteristics also ignores what could have influenced the crime or the circumstances behind it. That being said, I think mental health and age are two characteristics that must be considered. As we now know, the brain is not fully developed until probably age 25. The last part of the brain to fully develop (from what I remember from psychology and Children and the Law), is the area of the brain that most affects decision-making ability. Young offenders are likely heavily affected by not having a fully developed brain that can fully understand the long-term consequences of actions. That should be taken into consideration when those offenders are sentenced. And, young offenders have time and capacity for growth and learning which should considered at sentencing. I also think mental health should be a factor considered at sentencing. Mental health might affect the cost-benefit analysis some individuals might engage in in deciding to commit a crime or it might affect their ability to act rationality or in a manner that society accepts as okay. We should be helping these people, not locking them up.

Posted by: Amy P | Nov 19, 2020 1:04:32 PM

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