Sentencing: Guidelines

All guideline jurisdictions have found it necessary to create rules that identify the factual issues at sentencing that must be resolved under the guidelines, those that are potentially relevant to a sentencing decision, and those viewed as forbidden considerations that may not be taken into account by sentencing courts. One heated controversy, addressed differently across jurisdictions, is whether the guideline sentence should be based exclusively on crimes for which offenders have been convicted ("conviction offenses"), or whether a guideline sentence should also reflect additional alleged criminal conduct for which formal convictions have not been obtained ("nonconviction offenses"). Nonconviction offenses, as cataloged by Reitz in 1993, may include crimes for which charges were never brought, charges dismissed as part of a plea bargain, and even charges resulting in acquittals at trial. Sentencing based freely upon both conviction and nonconviction crimes is often called real-offense sentencing.

As noted earlier, the federal sentencing guidelines require trial judges to base guideline calculations upon conviction offenses and nonconviction offenses in some circumstances. Under the federal guidelines' "relevant conduct" provision, if a nonconviction crime is related to the offense of conviction (that is, if it is similar in kind or arose from the same episode), and if the defendant's guilt has been established by a preponderance of the evidence during sentencing proceedings, then the trial judge must compute the guideline punishment as though the defendant had been convicted of the nonconviction charge. Real-offense sentencing in such cases is mandatory in the federal system. To give one striking example, in United States v. Juarez-Ortega, 866 F.2d 747 (5th Cir. 1989), a defendant convicted at a jury trial of a drug charge but acquitted of a related gun charge was sentenced as though convictions had been returned on both counts. The trial judge found by a preponderance of the evidence that—despite the jury's acquittal—the defendant was guilty of the nonconviction gun offense.

State guideline systems have all gone in a different direction than the federal system on this issue. Instead of mandating real-offense sentencing, the consideration of nonconviction crimes is usually restricted to departure cases in the states or, in a few jurisdictions, is prohibited outright. All guideline grids set out presumptive sentences based on conviction offenses and prior convictions; no state follows the federal example of adding or substituting nonconviction offenses for purposes of the initial guideline calculation. Thus, presumptive sentences, intended to govern all typical cases, are oriented solely toward conviction crimes. In some guideline states, including all voluntary-guideline jurisdictions, a trial court may deviate from the guidelines in the belief that the defendant's "real" offenses were more numerous or more serious than those reflected in the verdict or guilty plea. Unlike the federal system, however, such consideration of nonconviction crimes is discretionary with the court rather than mandatory, and is limited to departure cases. In at least three states, even departure sentences based on nonconviction conduct are legally forbidden. Thus, for example, a sentence such as the one imposed in the Juarez-Ortega case above would be struck down on appeal in Minnesota, Washington, and North Carolina.

Another difficult issue of fact-finding at sentencing for guideline designers has been the degree to which trial judges should be permitted to consider the personal characteristics of offenders as mitigating factors when imposing sentence. For example: Is the defendant a single parent with young children at home? Is the defendant addicted to drugs but a good candidate for drug treatment? Has the defendant struggled to overcome conditions of economic, social, or educational deprivation prior to the offense? Was the defendant's criminal behavior explicable in part by youth, inexperience, or an unformed ability to resist peer pressure? Most guideline states, once again including all jurisdictions with voluntary guidelines, allow trial courts latitude to sentence outside of the guideline ranges based on the judge's assessment of such offender characteristics. Some states, fearing that race or class disparities might be exacerbated by unguided consideration of such factors, have placed limits on the list of eligible concerns. For example, in Minnesota, judges are not permitted to depart from the guidelines because of a defendant's employment history, family ties, or stature in the community. (However, such factors may indirectly affect the sentence, since judges are permitted to base departures on the offender's particular "amenability" to probation (Frase, 1997).)

Once again, the federal system is an outlier among guideline jurisdictions in its sweeping proscriptions of the consideration of offender characteristics. All of the personal attributes mentioned in the preceding paragraph are treated as forbidden or discouraged grounds for departure in federal law. If a federal judge wishes to tailor a sentence to a defendant's old age and infirmity, youth and inexperience, family obligations, or amenability to rehabilitation, the case law has required that the trial judge may do so only in truly "extraordinary" cases—and the federal courts of appeals have been vigilant in reversing lower court sentences deemed too easily responsive to sympathetic offender attributes (on the ground that, however sympathetic, the attributes are not sufficiently extraordinary). In contrast to the experience of state judges under state guidelines, U.S. District Court judges complain loudly that the federal guidelines have excised the human component of sentencing decisions.