My intent here is to explore contextual differences in the creation of the two commissions and then to use their measure of offense severity to provide a better understanding as to how and why the two guidelines are so very different. I want to focus on the different principles and goals of the creators of the Pennsylvania and federal legislation and the directions those principles pushed the commissions. For example, memberships on both commissions were very different. The USSC commissioners were initially full-time appointments, whereas the PCS commissioners were unpaid part-time appointments. Also, their backgrounds were very different. The USSC had seven commissioners with at least three being judges, but there were no restrictions on who the president could appoint to the other positions. The PCS had 11 commissioners: four judges, four legislators, and three gubernatorial appointees, of which one had to be a defense attorney, another a district attorney, and the third a law professor or criminologist. Might the nature of the appointments help explain the different receptions that the guidelines have received?
Historical Context of Reform
Sentencing reform in the United States began with numerous critical analyses of the courts and sentencing and, in particular, the unguided nature of sentencing.1 These critiques often made the argument that judges excessively incarcerated offenders, especially minorities. As then Federal Judge Marvin Frankel wrote in his book Criminal Sentences: Law without Order,2 sentencing was basically a lawless system with judges having unfettered and unguided discretion. He suggested, instead, a sentencing commission to establish guidelines for judges at sentencing. Thus began the movement to create guided judicial discretion. By 2007 sentencing guidelines were established in the federal courts and at least 20 states and the District of Columbia.3 However, reform was not left to the early “liberal” concerns with disparity and excessive incarceration.
In response to growing crime rates in the 1960s and 1970s, presidential candidate Barry Goldwater and President Richard Nixon decried judicial “leniency” and called for the restoration of “law and order.” Thus, a strong movement to reform sentencing to limit judicial discretion came from two forces: those concerned with disparity and those concerned with a breakdown in “law and order.” There is obvious irony in the coalescing of these forces, which also joined in repudiating the rehabilitative model that had spawned the indeterminate sentence. Both liberals and conservatives agreed that rehabilitation was ineffective and supported determinate sentences (flat with no parole release decision). Nevertheless, as the Pennsylvania and federal guidelines illustrate, reforms beginning from this foundation can take very different paths.
Both guideline systems have been criticized. One assessment of the federal guidelines by federal Judge José Cabranes4 concluded: “The sentencing guidelines system is a failure—a dismal failure, a fact well known and fully understood by virtually everyone who is associated with the federal judicial system.” Michael Tonry,5 a nationally recognized authority on sentencing guidelines, observed that the “federal guidelines have been a disaster.” The criticisms of the federal guidelines have focused on their mandatory nature and their complexity. By contrast, Tonry and others have criticized Pennsylvania’s guidelines for providing judges too much discretion by setting ranges too wide in the initial guideline matrix and leaving judges too much freedom to depart from them.6
In the following discussion I will briefly review the purpose of guidelines for the founders of the guideline legislation, the mandate in the legislation, and then the guidelines’ approach to measuring offense severity. My point is that while these sentencing reforms came out of a social movement intended to rationalize sentencing and constrain judicial discretion, their creators viewed the problem very differently. The result was very different guideline systems.
Goals of Guideline Advocates
Senator Edward Kennedy—believing that “. . . sentencing in America today is a national scandal. Judges are free to roam at will, dispensing ad hoc justice in ways that defy both reason and fairness”7—proposed the first federal sentencing commission in 1975, intending advisory rather than mandatory guidelines.8 But to garner broader support, Kennedy’s legislation evolved from an advisory system of benchmarks for the judiciary with the primary goal of reducing unwarranted disparities to a “law and order” reform with mandatory guidelines and harsher penalties.
Kennedy’s proposal included shifting the purposes of sentencing, limiting judicial discretion, and creating a common law of sentencing through appellate review. Kennedy’s legislation first targeted the rehabilitative basis for sentencing. His legislation signaled a dramatic shift away from trust in the effectiveness of rehabilitation by abolishing the indeterminate sentence and the parole release decision. He proposed replacing indeterminate sentences with determinate sentences allowing relatively limited time off for good behavior. A second target of Kennedy’s initial legislation was judicial discretion and the disparity that resulted from this discretion. To address judicial discretion and sentencing disparities, Kennedy proposed a set of “advisory” sentencing guidelines with determinate sentences. If this legislation had been adopted, sentencing reform would have retained judicial discretion because guidelines would have been merely advisory. However, as the legislation evolved, it moved the guidelines from advisory to mandatory and removed much, if not most, judicial discretion.
Pennsylvania’s reform emerged not so much out of a concern with sentencing disparity or the disproportionality of minorities in Pennsylvania’s prison system, but in response to proposed mandatory minimums and their unrelenting restrictions on judicial discretion. The original 1976 proposals would have established one-year mandatory minimum sentences for a second conviction of serious violent crimes (burglary was included in the list of violent offenses). Different versions passed both the House and Senate and forecasts predicted passage in the next session.9 Some legislators, concerned with the passage of mandatory minimums, broadened the discussion in the next session to consider alternatives to mandatory minimum sentences. The alternatives were legislatively established sentencing guidelines (California and Illinois had passed such legislation) and commission-written sentencing guidelines (Kennedy’s initial legislation). Importantly, some of the legislators attended a session by Judge Marvin Frankel at Villanova University where he argued for commission-based sentencing guidelines.10 For legislators concerned with the mandatory minimums, Frankel’s proposal for sentencing guidelines provided a much more reasoned approach. Guidelines would provide a benchmark for the judge while allowing for much more discretion to determine the actual sentence. Thus, leaders of the Pennsylvania guideline process felt that sentencing guidelines should allow judges considerable authority. This reflected their preference, as Kennedy initially proposed in the federal legislation, for advisory guidelines. Disparity was not a key driving force, but it encouraged the movement toward guidelines as opposed to a narrowly targeted set of mandatory minimums.
Pennsylvania’s legislation also diverged from federal legislation in terms of its continuing faith in rehabilitation and the indeterminate sentence. Whereas Kennedy’s legislation rejected indeterminate sentences, Pennsylvania’s guideline legislation retained rehabilitation as a major purpose of sentencing and, therefore, never seriously considered replacing indeterminate with determinate sentences.11
Although leadership in the General Assembly felt building pressures for mandatory minimum sentences, they viewed mandatory minimums as excessively constraining judges and doing so through simple but unfair mandates. The leadership also was not prepared to abandon the indeterminate sentence and the rehabilitation principle on which it was built. What the leadership did envision were guidelines to serve as a benchmark or springboard from which the court would start to make the sentencing decision.
Measuring Offense Severity: PCS
The key ingredient in all sentencing guidelines is the measure of offense severity. It is a complex variable that primarily measures the injury to the victim and culpability of the offender. One of PCS’s challenges was that statutes were broadly written with the presumption that the judge would have considerable discretion to craft a sentence within the statutory limits that distinguished between offenders. The breadth of Pennsylvania’s statutes presented the PCS with the choice of focusing on the offense for which the prisoner was convicted and relying on judges to “correct” the problem of broadly defined statutes, or to rewrite the criminal statutes to more narrowly define the offenses. The PCS quickly determined that factors related to the criminal conduct should be proven beyond a reasonable doubt and, therefore, adopted a ranking system based on the statutory offense of conviction. The initial guidelines took the three felony categories (maximum sentences set at 20, 10, and 7 years) and three misdemeanor categories (maximum sentences set at 5, 2, and 1 year) and, using these as a fundamental beginning point, began to rank the individual offenses on a 10-point ranking system.12 One commissioner, as well as a sponsor of the enabling legislation, had assumed that the commission would only use the statutory categories.13 However, viewing the wide range of offenses given a felony I ranking,14 commissioners determined that they needed a more refined measure than provided by statute. Therefore, the PCS decided to use a 10-point scale to rank all statutory offenses, but the primary distinction was used to differentiate the seriousness of felony I convictions.
However, burglary still presented a serious problem to the PCS because of the wide range of criminal conduct covered by the offense. Therefore, the PCS determined to add to the statute two distinctions. First, the commission distinguished whether the target of the burglary was a home or not and, second, whether the structure was occupied. These distinctions were intended to provide some general guidance to the court that these factors reflected important culpability distinctions that the Commission thought the court should start with in considering the seriousness of the offense.
It is important to understand that criminal statutes were created with a strong reliance on extensive judicial discretion to determine the severity of the particular offense. The only legislative requirement was to set a maximum sentence so that for the most serious offenders the parole release decision could consider when the offender was rehabilitated. Consequently, statutes did not finely distinguish factors that might influence sentencing. Those factors were left to the judge. The PCS decision to rely on the offense of conviction as the basis of its measure of offense severity thus meant that the offense rank attached to each offense of conviction would be covering a wide range of behavior. Consequently, the PCS decided that judges needed discretion to consider the full complexity of offense conduct captured under status offense language. The key avenue to provide this discretion was through relatively wide ranges under the guideline matrix. This decision and the advisory nature of the guidelines were the basis of Tonry’s criticism of the guidelines’ failure to control judicial discretion.
Measuring Offense Severity: USSC
Perhaps the most controversial decision the USSC made was to reject its reliance on the statutes to define criminal conduct for sentencing purposes. This broke with the approach of Pennsylvania and other state guideline systems where the measure of offense severity relied primarily on statutory definitions. The USSC instead created approximately 150 categories of offenses and then used its study of past sentencing practices to establish the offense factors federal judges used in actual sentencing decisions. A full review would go far beyond the capability of this article, but a brief description provides an important frame of reference that has resulted in some very critical assessments of the federal guidelines by federal judges.
One particularly disconcerting issue for the USSC was the disorganization of federal statutes. The federal code had never been reorganized so as to revise the definitions or to create a grading system of offenses. Thus, the federal statutes held a disorganized set of crimes created over many years with no systematic attempt to grade the offenses based on their severity. This meant that the USSC faced a much more difficult task than the PCS with its graded statutes. Also, the USSC’s mandate limited the width of the guideline ranges such that the guideline range could be no wider than 25 percent of the minimum.15 This prevented the USSC from building in discretion as the PCS did by providing wide ranges and broad judicial discretion.
The USSC abandoned the offense of conviction as the measure of offense severity and created its own measure based on a “real offense sentencing model.” The USSC developed a list of appropriate factors to be considered in sentencing based on its research studying actual sentencing factors used by federal judges. These factors the Commission labeled “relevant conduct” to reflect that they were important to the sentencing decision, but they generally were not factors identified in statute. There were many reasons for the USSC to take this approach. First, the federal codes, as indicated above, were terribly disorganized and poorly drafted and thus not a solid base to which to attach sentencing guidelines. Second, the USSC was concerned that to rely on the conviction offense would empower the prosecutor to negotiate pleas to the conviction offense and thereby control the sentence with no appellate review of his decision. The Commission was attempting to avoid displacing discretion and potential disparity to the prosecutor. However, the decision to use relevant conduct created its own problems.
The Commission’s extensive research on pre-guideline sentencing practices had identified the key sentencing factors used in pre-guideline sentencing decisions. But the devil is in the details. The Commission had to develop specific measures of each factor and decide how they would be used in creating the guideline recommendation. To narrowly control judicial discretion, the USSC decided to measure each factor in great detail, and this decision was the foundation for building detailed and complex guidelines.
Perhaps the most overlooked, but important, decision the USSC made was to cumulate the various indicators of offense severity to create the final offense level. The result of complex measures being added together escalated sentences considerably beyond what judges and the parole authority would have done pre-guidelines. The resulting “real offense” sentencing approach diverged strongly from state models and ultimately led to disparagement from judges to academics.
To illustrate the complexity and the ultimate severity of the USSC guideline’s measure of offense severity, consider its measure of robbery. For robbery, the USSC’S list of “relevant conduct” captured conduct beyond commission of the statutory elements of the robbery: type of institution robbed, injury to the victim, use of a weapon, and dollar amount stolen. The importance of these factors in sentencing is generally recognized and was reflected in pre-guideline sentencing decisions. But the weighting of each factor and the USSC’s decision to add the factors together to reach the guideline measure of offense severity created 1.8 million combinations, a complexity to which judges have voiced strong opposition.16 Thus, when judges raise concerns regarding the complexity of the guidelines, they do so for good reason. Judges have perceived that the measures often reach unfair results; that is not surprising considering the cumulative manner in which the relevant conduct factors are incorporated into the guideline recommendation and that under some circumstances the “relevant conduct” may be irrelevant from the judge’s perspective to the current sentencing.
Illustrating Calculation of Offense Measures
A simple application of the Pennsylvania and federal guidelines to a robbery of a bank will help demonstrate the differences. Assume an offender enters a bank and approaches the clerk. He gives her a note with a paper bag indicating that she must put all the money in her register in the bag or he will kill her. He then shows her a pistol. She puts $18,000 in the bag and the robber leaves the bank but is captured shortly thereafter. The table on the left provides a simplified calculation of this offense under Pennsylvania’s sentencing guidelines17 and the federal guidelines.18 Under Pennsylvania statute this offense would be defined as a robbery felony I; that is, robbery with threatened or actual serious bodily injury. The PCS rank for this offense is 10 on its 14-level measure of offense severity (the 10-point scales were increased to 14 in 1997). If there had been serious bodily injury, the offense would have been ranked 12. The guideline range, assuming no significant prior record, would be 22–36 months. However, because a deadly weapon was used in the offense, the guideline range is increased to 40–54 months. Rather than increase the offense rank, PCS created a separate chart to reflect enhancements for possession or use of a deadly weapon in the commission of the offense.
The federal offense ranking for robbery provides for a base offense level of 20 and from there the court must consider several other factors that determine the final offense level. The table on page 14 provides a brief synopsis of the calculation of the offense level starting of 20, showing how it rises to 28 based on weapon enhancement, financial institution, and financial loss. If the defendant “accepts responsibility,” then the offense level could be reduced by two or three levels. If the offense remained at offense level 28 and the defendant fell in the first level for prior record, then the guideline range would be 78–97 months.
This comparison illustrates not only the differences in complexity and the role of extra-statutory factors in the calculation of the guideline sentence, but also the potential increase in sentence recommendations due to the additive nature of the federal guideline calculation.
One goal of sentencing reform was to reduce disparity across jurisdictions. This analysis compares two guideline systems. The Pennsylvania guideline system considered judges important and necessary to fair sentences. The federal guideline system, however, viewed judges as the source of the problem. These divergent assessments of the judiciary set the two commissions on very different directions in developing their guidelines. Each commission has been criticized for its approach. My goal has been to illustrate how the sentencing reform movement took very different paths in the Pennsylvania and federal systems. n
1. See, e.g., Am. Friends Serv. Comm., Struggle for Justice (Hill and Wang 1971); Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment (McGraw-Hill 1976); Andrew von Hirsch, Doing Justice: The Choice of Punishments (Hill and Wang 1976).
2. Marvin E. Frankel, Criminal Sentences: Law without Order (Hill and Wang 1972).
3. Nat’l Ctr. for State Courts, State Sentencing Guidelines: Profiles and Continuum (2008).
4. José Cabranes, Sentencing Guidelines: A Dismal Failure, 207 N.Y. l.j. 27 (1992).
5. Michael Tonry, Sentencing Matters (Oxford Univ. Press 1996).
6. Andrew Von Hirsch, Kay Knapp & Michael Tonry, The Sentencing Commission and Its Guidelines (Northeastern Univ. Press 1987).
7. Sen. Edward M. Kennedy, Forward to Pierce O’Donnell, Michael Churgin & Dennis Curtis, Toward a Just and Effective Sentencing System: Agenda for Legislative Reform (Praeger 1977).
8. Kate Stith & José A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 43 (Univ. of Chicago Press 1998).
9. John Kramer & Jeffery Ulmer, Sentencing Guidelines: Lessons from Pennsylvania (Lynne Rienner Publishers 2009).
10. Stith & Cabranes, supra note 8.
11. Pa. Act 319 of 1978. In the early 1990s there was some debate regarding replacing indeterminate sentences with determinate sentences based on concerns by judges and others that the parole board was effectively resentencing offenders during the parole release decision. Also, prison populations were increasing dramatically and one reason was the increase in the proportion of the minimum served. The initial 1981 guidelines predicted 102 percent, but this proportion had increased to almost 140 percent in the 1990s.
12. It is important to understand that maximum sentences were set to cover the worst case that might result in a conviction under the statute as the model used by legislators setting maximum sentences. Also, under Pennsylvania law, the court sets a minimum sentence of no greater than half of the maximum and that generally sets the parole eligibility as there was no state good time provision when the guidelines were written.
13. Personal communication with the key sponsor of the legislation.
14. At the time of the writing of the guidelines, third-degree murder, aggravated assault, robbery, rape, kidnapping, and burglary were ranked as felony I’s.
15. The USSC also had a mandate to consider prison populations in the drafting of the guidelines, but with Congress creating mandatory minimums for drug offenses and the USSC accepting the premise that the guidelines should be consistent with the mandatory minimums, constraining guidelines to prison capacity was generally never voiced as a legitimate constraint on the Commission’s guidelines.
16. Barry Ruback, Warranted and Unwarranted Complexity in the U.S. Sentencing Guidelines, 20 Law & Pol’y 357 (1998).
17. Pa. Comm’n on Sentencing, Implementation Manual (6th ed. 2005).
18. U.S. Sentencing Comm’n, Guidelines Manual § 3E1.1 (Nov. 2011).