In the quest for equal justice for all, the judicial system has imposed upon itself new guidelines for judges in determining sentences. The chairman of the U.S. Sentencing Commission describes how federal sentencing guidelines encourage fairness and what alternative sentencing options a judge may now consider.




Sentencing is one of a judge's most difficult jobs. The power to take away a person's money, liberty, or even life, is an awesome responsibility. Sentences must be fair and impartial and based only on relevant considerations. No favoritism can be shown to persons based on their race, religion, creed, or political party.

Thus, judicial independence -- freedom from public passions or partisan pressure -- is very important in the sentencing process.

At the same time, judges cannot be given unfettered discretion to impose whatever sentences they please. Over the entrance to the U.S. Supreme Court is emblazoned the ideal of the American legal system: Equal Justice Under Law. Since the sentencing judge often will be from a different ethnic group, or of a different gender or religion than the defendant who is being sentenced, in a pluralistic society like the United States, citizens must have confidence that anyone who breaks the law will be treated like any other person who commits the same crime.

"Law Without Order"

In the past, scholars and politicians became concerned that judges decisions might be skewed by their natural ability to understand persons like themselves better than persons who were different, which could lead to some defendants being treated differently than others.

In Criminal Sentences: Law Without Order, published in 1972, former federal judge Marvin Frankel described the sentencing system as law without order. At the time, the criminal statutes gave judges broad ranges of sentences from which to choose. Judges were given no guidance about what sentences were most typically handed down by other judges, or what sentences would be most effective. As a result, judges with different philosophies imposed different sentences on similar offenders.

In addition, a judge s sentence did not determine the time that an offender actually spent in prison. Criminals could be released early by a parole commission. Most offenders served only one-third or one-half of the sentence imposed by the judge. Many people believed that this eroded respect for both the court and the law.

The Sentencing Reform Act of 1984 changed all this by abolishing parole and creating the U.S. Sentencing Commission, which established a system of guidelines for judges to use when imposing sentence. Today, we have truth in sentencing and offenders serve the sentence that is imposed by the judge (minus a maximum of 15 percent if they show good behavior while in prison). Most importantly, judges have guidance to help them determine what sentence is appropriate, which assures their peers and the public that different judges using the same rules will arrive at the same conclusion.

Judges Help to Shape Sentencing Policy

By law, at least three of the seven voting members of the Sentencing Commission must be federal judges. In addition, the Commission is obliged by statute to consult with the governing body of the federal judiciary -- the Judicial Conference of the United States -- concerning possible improvements in the guidelines. Thus, while the guidelines may restrict a judge's power when sentencing a particular case, judicial input to the Commission provides judges with a new avenue for influencing the sentencing rules that are applicable to all cases.

This aspect of the Sentencing Reform Act was controversial at first. Some people thought that the guidelines should be developed entirely by judges. Others thought that sentencing rules should be established by Congress. The compromise represented by creation of the Sentencing Commission, and its placement within the judicial branch of government, was intended to insulate sentencing policy to some extent from the political passions of the day. The Commission would serve as an independent, expert agency that could establish sentencing policy on the basis of research and reason.

At the same time, sentencing policy had to be politically accountable. Commissioners are appointed by the president and confirmed by the Senate. And the Commission is bound by directives from Congress that may require it to increase punishments or change the sentencing rules in various ways. The result is a quasi-legislative agency within the judicial branch, which was initially challenged in 1989 as a violation of the U.S. Constitution's principle of separation of powers. The U.S. Supreme Court rejected this challenge in Mistretta v. United States, and upheld the constitutionality of the Commission and its rulemaking judges.

Emphasis Placed on Relevant Factors

The sentencing guidelines describe exactly what facts are important for determining a sentence. The defendant's race, sex, national origin, religion, and socio-economic status are prohibited from consideration. Instead, the sentence is based largely on the seriousness of the crime and on the defendant s past criminal record.

For example, one of the most common types of crimes in U.S. federal courts is drug trafficking. The sentence in these cases is based largely on the amount of drugs produced, smuggled, or sold by the defendant. The sentence is increased if the defendant possessed a gun during the offense, or if he or she was convicted of selling drugs to a child, near a school, or to a pregnant woman. Leaders of criminal organizations get longer sentences than workers. Offenders who admit their crime and accept responsibility get shorter sentences than those who deny committing the crime. Finally, the sentence is increased if the defendant has committed other crimes.

Under rules like these, everyone can see how a sentence is determined. Not everyone agrees with every rule the Sentencing Commission has established, but everyone knows that the same rules apply in every courthouse in the United States. The rules help guarantee that similar defendants are treated in a like manner.

The Role of the Judge

Judges have an important job in the sentencing guidelines system. They must determine the facts of the case and the defendant's past criminal record. In U.S. federal courts, judges make their decision at a sentencing hearing, at which prosecutors and defendants can present evidence and address the court. Court staff prepare a pre-sentencing report that includes a description of the crime and its impact on victims. The report also describes the criminal history of the defendant and information about the defendant's background, family, education, employment, and other factors.

In forming the guidelines, Congress and the Commission recognized that no set of rules -- no matter how detailed -- could anticipate every possible situation. Thus, in the words of the Sentencing Reform Act, [if] the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines, a judge can depart from the rules and impose an appropriate sentence under the circumstances.

Judges must state on the record, however, what facts in a particular case justify a departure from the guidelines. These facts might then be reviewed by an appellate court if either the prosecutor or the defendant choose to appeal the case, which they have a right to do if a departure goes against them. The Sentencing Reform Act has involved appeals courts in the sentencing process to a much greater degree than before the guidelines were implemented, by empowering appeals courts to review sentences, thus ensuring that the guidelines are properly applied.

Sentencing Options

As a result of the guidelines, a sentencing judge must decide whether to send a defendant to prison or to use one of the sentencing options that are provided. Defendants convicted of the least serious crimes may be sentenced to simple probation, that is, supervision in the community under the direction of a probation officer. For somewhat more serious crimes, a judge may choose from three intermediate sanctions -- community confinement, intermittent confinement, and home detention. For even more serious crimes, judges may impose a split sentence, in which the defendant spends a short time in prison and the remainder of the sentence in one of the intermediate sanctions.

Community confinement means residence in a treatment center outside the prison walls, such as a half-way house or drug rehabilitation center. Community confinement may be imposed instead of prison time, or as a means of easing transition back into the community after time spent in prison. Intermittent confinement means the defendant is free to go to work or live at home for part of the week, but must spend time in jail on weekends.

Home confinement is the newest of the intermediate sanctions, and its use has grown dramatically in U.S. federal courts in the past decade. As of 1996, over 18,000 federal prisoners spent some time in home confinement. Originally called house arrest (and unfortunately associated in some countries with political opposition and police detention) the federal home-confinement program is a judicially managed system of punishment and control for offenders deemed safe enough to live in their own homes, but requiring a high degree of supervision.

New Technology Makes Enhanced Surveillance Possible

In the U.S. federal judicial system, technology in the form of electronic monitors helps make home confinement a tough and safe sentencing alternative. Electronic monitors are not necessary to begin a home-confinement program: in some cities, probation officers simply call or drop by offenders' homes periodically to ensure that they are there. But electronic monitoring gives judges added confidence to use home confinement with more serious offenders whose whereabouts they wish to follow closely.

During home confinement, an offender wears an electronic bracelet that communicates by radio signal with receivers attached to the phone lines in his or her home. If the offender moves more than 55 meters away from the receivers, they automatically will call computers that monitor them. The computers check records to determine if the offender was authorized to leave home at that particular time. If not, the offender's probation officer is notified and efforts to locate the offender begin.

Electronic-monitoring equipment also detects attempts to remove or tamper with the transmitter-bracelet worn by the defendant, or loss of phone service to the offender s house. Criminologist James M. Byrne has noted: "The evidence to date indicates that home confinement may be a viable intermediate sanction, and electronically monitoring compliance with home confinement orders appears to work at least as well as manual methods of monitoring." In fact, many offenders feel that home confinement is as punitive as prison. Some have even refused placement in home confinement, preferring to spend their time in jail, with greater social interaction and recreational facilities.

As of 1996, among probationers sentenced to home confinement in the federal system, 93.5 percent successfully complete their sentence. About 6 percent violate program rules, by repeatedly leaving home, testing positive for drug use, or tampering with electronic equipment.

The Future of Federal Sentencing

Political pressure is great whenever crime is a top public concern and when sentencing is seen as a solution to the crime problem. Congress continually mandates new minimum sentences for certain types of offenses, instead of allowing the guidelines to determine which sentences are appropriate. And such statutes often make it more difficult for the Commission to establish rules that ensure fairness and proportionality among the many types of crimes sentenced in the federal courts. But as the Commission enters its second decade, it is working to find new and better ways to accomplish the twin goals of controlling crime while treating fairly, those persons who break the law.

Issues of Democracy
USIA Electronic Journals, Vol. 1, No. 18, December 1996