By GREGORY D. LEE, M.P.A.
Special Agent Lee, formerly an instructor at the Drug Enforcement
Administration's Office of Training in Quantico, Virginia, currently is
assigned to the DEA's Islamabad, Pakistan, Office.
Not long ago, defendants in similar Federal cases but different judicial
districts often received different sentences, ranging from probation to
several years in prison. Then, after being sent to prison, defendants
became eligible for parole automatically after serving only about one-
third of their sentences. Thus, a 5-year prison sentence became, in
reality, less than 2 years' incarceration.
The Sentencing Reform Act of 1984, part of Title II of the Comprehensive
Crime Control Act of 1984, took steps to prevent such scenarios from
occurring. The Comprehensive Crime Control Act established the U.S.
Sentencing Commission, a nine-member panel working as an independent
agency of the Federal judiciary. The commission's seemingly monumental
task was to overhaul the sentencing policies of the Federal criminal
justice system; its mission, to achieve uniformity and proportionality in
sentencing. This article explains the changes made by the commission to
sentencing guidelines and how these changes affect enforcement of Federal
THE PUNISHMENT FITS THE CRIME
In the past, the latitude given Federal judges created wide disparity in
sentencing. The guidelines were designed to close the gap by requiring
that defendants be sentenced according to their criminal backgrounds and
the seriousness of the crime(s) they commit. Thus, a defendant with two
prior convictions who commits a crime will receive more prison time than a
defendant with no criminal record who commits an identical crime. The
guidelines also factor in the particular role the defendant played in the
criminal endeavor and any aggravating or mitigating circumstance that
would warrant either an increase or decrease in the sentence.
However, the commission mandated that the sentence range be narrow. That
is, the maximum prison sentence cannot exceed the minimum sentence by more
than 25 percent or 6 months, which ever is greater.1 As part of the same
legislation that created the U.S. Sentencing Commission, Congress
established mandatory minimum sentences for certain Federal crimes,
including drug offenses.
Mandatory minimum penalties also limit the discretion of Federal judges by
requiring that sentences be based solely on the type and amount of drugs
involved, the criminal history of the defendant, and other aggravating
circumstances, such as possession of a weapon during the crime. Unlike
the sentencing guidelines, however, mandatory minimums give judges little
flexibility in sentencing.
FEDERAL PAROLE ABOLISHED
Previously, the U.S. Parole Commission could, and often did, authorize the
early release of Federal prisoners. The Sentencing Reform Act limited this
authority by abolishing Federal parole. As a result, defendants serve
their court-imposed sentences, minus approximately 15 percent for good
behavior, if applicable. Such sentence reductions may not exceed 54 days
per year. Other types of early release are prohibited.
LONGER PRISON SENTENCES
The sentencing guidelines, in conjunction with Federal mandatory minimum
sentences, have resulted in longer prison sentences for offenders who
violate Federal drug laws. According to the Bureau of Justice Statistics,
from 1980 to 1989, the average sentence for Federal drug offenders
increased by 59 percent. In 1980, drug traffickers received an average
sentence of 48.1 months; in 1985, 60.8 months; in 1988, 71.3 months; and
in 1990, 84 months.2 Furthermore, without parole, Federal prisoners now
serve almost their entire sentences.
THE SENTENCING TABLE
Federal judges sentence offenders according to a table established by the
guidelines. Using a two-dimensional grid, the table categorizes offenses
according to the seriousness of the crime (levels 1 through 43) and the
defendant's criminal history (categories I through VI). The higher the
level, the longer the possible sentence. The maximum offense mandates a
life sentence. Lower figures represent the minimum a defendant with no
criminal history would receive.
The sentencing tables used in drug cases base punishments on the type and
the amount of the drug, as well as the criminal history of the defendant.
Heroin and methamphetamine violations receive greater punishments than
those involving cocaine or marijuana.
Also, offenses involving crack cocaine receive substantially higher
sentences than those dealing with cocaine in its powdered form, due to
crack's higher addictive qualities. Defendants convicted of conspiracy or
an attempt to commit any offense involving a controlled substance warrant
the same level as if they had completed the objective of the conspiracy.
For example, if two or more people conspire to import 500 kilograms of
cocaine, but the plane containing the drugs crashes into the Gulf of
Mexico, the defendants would be punished the same as if the plane had
landed safely in the United States.
DEPARTURES FROM THE GUIDELINES
In formulating the guidelines, the commission analyzed thousands of cases
and based punishments on scenarios considered typical for certain crimes.
Still, in some instances, aggravating or mitigating circumstances may
warrant departure from the guidelines.
Based on its research, the commission anticipated when departures likely
would occur. The guidelines provide for adjustments, up or down, in cases
where, for example, the defendant obstructs justice, physically restrains
the victim, and/or plays a major or minor role in the crime. Thus, if a
defendant organizes, leads, manages, or supervises a criminal activity,
the sentence increases, depending on the specific role and the number of
On the other hand, if a defendant clearly plays a minor role, the sentence
decreases accordingly. The punishment also increases if a defendant
abuses a position of public or private trust or uses a special skill to
commit or conceal an offense. By definition, a "special skill" is not
possessed by members of the general public and usually requires
substantial education, training, or licensing to learn and use. Examples
of individuals with special skills include accountants, attorneys, boat
captains, pilots, chemists, and demolition experts.3
A hypothetical situation may serve to illustrate sentences based on
defendants' roles. A group of people conspire to smuggle 12 tons of
marijuana into the United States from Thailand. They use a fishing vessel
to transport the contraband to a deserted beach where they off-load it.
Investigators arrest the organizers, managers, supervisors, and the boat
captain, as well as the individuals who off-loaded the drugs onto the
Assuming identical criminal backgrounds, according to the guidelines, the
organizers would receive more prison time than the managers and
supervisors, who would receive more time than the captain or those who
merely unloaded the illicit cargo. But, the captain would receive a
greater sentence than the off-loaders, because of the special skill
required to navigate a boat. Regardless of their skills and abilities,
defendants who complete drug transactions within 1,000 yards of a school
or college,4 or who use pregnant or juvenile accomplices,5 also receive
increased sentences. In contrast, defendants may receive reduced sentences
for clearly accepting personal responsibility for their criminal conduct.
That is, defendants who, for example, cooperate with authorities, express
remorse to their victims, or make restitution for their crimes may receive
reduced sentences. However, merely entering a guilty plea does not entitle
a defendant, as a matter of right, to a reduced sentence.
The commission recognizes that some cases will not fit the guidelines,
even with adjustments, and will require departures. Still, judges who
depart from the guidelines must provide written justification for doing
so. Some offenses mandating an increase above the guidelines include
significant disruption of a governmental function, extreme conduct by the
defendant, substantial property damage or loss, and extreme psychological
injury to the victim.6
In drug cases, death or serious bodily injury resulting from the use of
controlled substances that the defendant distributed would warrant an
increase in the sentence. In cases that carry mandatory minimum penalties,
the sentence doubles, at least. If an individual commits such a violation
after a prior felony drug conviction, the sentence doubles again. Coupled
with mandatory minimum sentences, the sentencing guidelines may provide a
strong deterrent to drug law violators.
Defendants can receive a shorter sentence if they provide substantial
assistance to authorities, defined as providing investigators and pro-
secutors with information leading to the indictment of other offenders.
Only the prosecution can motion for a reduced sentence based on the
substantial assistance clause of the guidelines.
The possibility of receiving a reduced sentence often provides a powerful
incentive for defendants to cooperate. The assistance they provide often
results in the arrest and prosecution of previously unknown accomplices
and the seizure of hidden assets that would have gone undetected
CRITICISM OF THE GUIDELINES
Although the guidelines have brought uniformity to Federal sentencing,
they have generated considerable controversy. From 1987, when the
guidelines took effect, to 1989, when the U.S. Supreme Court upheld their
constitutionality,7 over 150 Federal judges claimed that the guidelines
violated the Constitution and refused to follow them.8 Even today, Federal
judges criticize the guidelines, mainly because they limit their
discretion in sentencing, especially in drug matters. In fact, several
Federal judges around the Nation have removed themselves from the random
draw by which criminal cases are assigned in order to avoid imposing what
they believe are excessive sentences in drug offenses.9
The sentencing guidelines have evolved since their inception in 1987 and
will continue to do so. As judges sentence according to the guidelines,
and as they depart from them, the commission gains insight into what areas
require modification. The group meets at least once each year to review
the guidelines, and revisions are published in the Federal Register. The
changes become effective after 180 days, unless Congress enacts a law to
the contrary. With the passage of the Violent Crime Control and Law
Enforcement Act of 1994, Congress hopes to reduce punishments for
individuals convicted of low-level drug violations. The act waives
mandatory minimum sentences in cases in which offenders did not act as
organizers, leaders, managers, or supervisors and did not use guns, commit
violence, or harm others while committing their crimes.
In addition, offender must have only minor criminal histories and must
cooperate with authorities.10
U.S. sentencing guidelines have changed the way judges sentence Federal
offenders. They mandate consideration of the defendant's criminal history,
the severity of the crime, and other aggravating or mitigating factors.
The guidelines place a limit on the sentencing discretion of judges and
provide harsher sentences where warranted.
Some view the guidelines as too harsh and inflexible. Others believe they
are not strict enough. And still others champion them as a necessary
deterrent to crime because of the certainty of the sentence to be served.
Despite the debate, the sentencing guidelines, coupled with mandatory
minimum penalties, clearly have raised the ante for individuals
contemplating violating Federal drug laws.
1 28 USC Section 994 (b)(2).
2 "Federal Criminal Case Processing, 1980-89, with Preliminary Data for
1990," Bureau of Justice Statistics, October 1991, 17.
3 U.S. Sentencing Commission, Guidelines Manual (USSG), Section 3B1.3,
(Nov. 1991), comment. (n.2).
4 USSG, Section 2D1.2 applies an enhancement for defendants convicted
under 21 USC, Sections 859, 860, and 861.
5 USSG, Sections 2D1.2, 3A1.1.
6 USSG, Ch.3, Pt.k.
7 Mistretta v. United States, 488 US 361 (1989).
8 Saundra Torry, "Some Federal Judges Just Say No to Drug Cases," The
Washington Post, May 17, 1993, F7.
10 The Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
No.103-322, Sec. 80001, 108 Stat. 1985.
From FBI Magazine, Summer '95
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