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DECONSTRUCTING THE GUIDELINES

Deconstructing the Guidelines is a special project undertaken by National Federal Defender Sentencing Resource Counsel.

The papers in this section critically examine the history and basis of the most frequently encountered provisions of the U.S. Sentencing Guidelines. Judges are now invited to consider arguments that the guideline itself fails properly to reflect § 3553(a) considerations, reflects an unsound judgment, does not treat defendant characteristics in the proper way, or that a different sentence is appropriate regardless. Rita v. United States , 127 S. Ct. 2456, 2465, 2468 (2007). Judges "may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines," Kimbrough v. United States, 128 S. Ct. 558, 570 (2007) (internal quotation marks omitted), and when they do, the courts of appeals may not "grant greater factfinding leeway to [the Commission] than to [the] district judge." Rita , 127 S. Ct. at 2463. Whatever respect a guideline may deserve depends on whether the Commission acted in "the exercise of its characteristic institutional role." Kimbrough, 128 S. Ct. at 575. This role has two basic components: (1) reliance on empirical evidence of pre-guidelines sentencing practice, and (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field. Rita, 127 S. Ct. at 2464-65. "Notably, not all of the Guidelines are tied to this empirical evidence." Gall v. United States, 128 S. Ct. 586, 594 n.2 (2007). When a guideline is not the product of "empirical data and national experience," it is not an abuse of discretion to conclude that it fails to achieve the § 3553(a)'s purposes, even in "a mine-run case." Kimbrough, 128 S. Ct. at 575.

 

In addition to the papers linked below, National Federal Defender Resource Counsel is working on papers deconstructing other guidelines. Look for these papers in the upcoming months. In the meantime, see The Continuing Struggle for Just, Effective and Constitutional Sentencing After United States v. Booker (August 2006) for evidence and resources supporting the argument that other guidelines are not based on empirical evidence, do not advance sentencing purposes, and do not avoid unwarranted disparities or unwarranted similarities.

 

Also, on the Sentencing Resource Counsel Project Website you can now access a large number of documents and materials from the public record of the Commission that are not currently available on the Commission's website (and are otherwise difficult to obtain). These include public comment (including public comment regarding the initial guideline development process), written hearing testimony from early amendment cycles (and some others), hearing transcripts (before 1997), and various reports (including the 1990 Firearms Working Group Report). These materials are useful for tracing the history and development of any given guideline provision. What comments were received? What was said at the hearings? What did that staff report say? The answers to these questions should help you demonstrate that the Commission, in developing a guideline or policy statement, may not have done so as envisioned by the Sentencing Reform Act and as the Supreme Court has re-emphasized.

Click on the headings below to access links to documents deconstructing a particular guideline.  

CHILD PORNOGRAPHY GUIDELINES
DRUG GUIDELINES