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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
  • Sample Sentencing Memo in Child Pornography Case
    This sentencing memo refutes Congress's reasons for directing the child pornography guideline in a hypothetical case involving a defendant convicted of possessing child pornograpy. The memo also deconstructs those aspects of the guideline that were chosen by the Commission.

  • List of Child Pornography Cases in Which the Defendant Received a Sentence of Probation or One Day
    Prepared by the National Federal Defender Sentencing Resource Counsel Project

  • Placement of Sentences Under U.S.S.G. §2G2.2 - FY 2011 
    Judges and courts of appeals are increasingly interested in knowing whether other judges are sentencing outside the guideline range.  This can be a rough way of avoiding unwarranted disparity, though the guidelines do not include many relevant factors and the guideline itself may reflect unwarranted disparity or unwarranted uniformity.  A high rate of sentences outside the guideline range indicates that the guideline is not based on "empirical data and national experience" and fails to provide a sentence that is not greater than necessary to achieve the purposes of sentencing.  The tables in this document show (1) percentages of sentences within, above and below the guideline range for defendants sentenced under U.S.S.G. §2G2.2 in all CHCs combined and in each CHC; (2) percentages of sentences within, above and below the guideline range for defendants in CHCI who receive the most common upward specific offense level adjustments under the guideline; and (3) the number of defendants receiving various lengths of prison terms, including no term of imprisonment, for defendants in each CHC, and for defendants in CHCI who receive various final offense levels.

  • Number of Sentences Receiving Various Terms of Imprisonment Under §2G.2.2 in Each CHC -     FY 2010 
    The table in this document shows the number of defendants receiving various lengths of prison terms, including no term of imprisonment, for defendants in each CHC in fiscal year 2010.

     

  • A Method for Careful Study: A Proposal for Reforming the Child Pornography Guidelines
    by Troy Stabenow, Assistant Federal Public Defender, W.D. MO
    (The Federal Sentencing Reporter, Vol. 24, No. 2, p. 108, December 2011) This article provides: (1) a summary of court trends from 2008 to 2011, providing empirical evidence that courts increasingly sentence 2G2.2 cases below the Guidelines; (2) new information on charging and plea disparities around the country; and (3) a survey of the various forensic studies undertaken in an effort to quantify the risk that these offenders will go on to re-offend, or "progress" to contact offenses.

  • Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (revised January 1, 2009) and Table of Amendments
    by Troy Stabenow, Assistant Federal Public Defender, W.D. MO

  • 2G2.2 Reply to Government
    This reply brief in a child pornography case refutes the government's argument that guidelines based on congressional directives are not properly subject to scrutiny by district court judges. The reply also supplements Troy Stabenow's paper (submitted at an earlier stage in the case) in showing that the Commission did not act in its characteristic institutional role in promulgating the child pornography guidelines.

  • Appellant's Brief Regarding Amount-of-Images Enhancement
    This brief, filed in the Sixth Circuit, argues that the amount-of-images enhancement to the child pornography guideline violates the separation of powers doctrine because Congress, not the Commission, unilaterally and directly promulgated that enhancement.

  • Troy Stabenow Letter to the Editor of the ABA Journal (July 13, 2009)
    (criticizing DOJ's response to ABA article on child pornography and the Sentencing Guidelines)
DRUG GUIDELINES