In the more than 50 years since I graduated from law school, there is no area of federal law that has affected more lives with more dramatic pendulum swings than federal sentencing. I am now a retired federal judge who has spent nearly a third of my life populating the Federal Bureau of Prisons by sentencing more than 4,000 offenders, in five federal districts spanning the two districts in Iowa to the District of Arizona, the District of North Dakota, and the farthest reach of the federal courts in the District of the Northern Mariana Islands in Saipan.
Flash-back to the summer of 1975: having started my own law firm after graduating from law school, I was involved in my first federal sentencing as a novice but eager defense lawyer. The defendant was to be sentenced by a conservative but fair federal district judge. The defendant was a low-level small-time nonviolent, addict drug dealer with no prior criminal record other than two aging minor misdemeanors. Despite my lack of experience, he was sentenced to three years of probation and drug treatment. Back then, probation was common for nonviolent first offenders. Had an identical defendant appeared before me as a federal district judge, and many hundreds of them did, the defendant would have received a mandatory minimum 120-month or 240-month sentence, or possibly even more, depending on the drug quantity and aggravating factors. This article chronicles the jaw-dropping arc of federal sentencing and the federal sentencing guidelines that help explain, but do not justify, this staggering disparity.
I have a deep and very personal connection to federal sentencing, having sentenced offenders to federal prisons ranging from several months to life—and on two occasions affirming jury sentences to death (the only time jurors decide a sentence in federal court). Perhaps more curious to some, while serving as a federal judge, I visited in many federal prisons more than 400 offenders that I had sentenced. For a discussion of the impact of such interactions, see the TED Talk by civil rights and civil liberties lawyer Bryan Stevenson, The Power of Proximity, April 9, 2021, on YouTube. More about my prison visits and proximity later.
One could assume that the Northern District of Iowa, primarily a rural farming district, was a sleepy one in terms of federal criminal prosecutions. Nothing was and is further from the truth. During most of my 24 years on the district court bench, the Northern District of Iowa was the fifth or sixth busiest sentencing district of the nation’s 94 districts in the number of sentencings per judge. This is due in large part to Interstates 35 (north-south) and 80 (east-west), which intersect Iowa, making that district the heartland of a methamphetamine interstate pipeline.
To better understand the arc of federal sentencing and the central role that the federal sentencing guidelines and mandatory minimums play in it, a brief history of federal sentencing is helpful. Its story is about a pendulum: wide judicial discretion to help alleviate the potential harshness of federal sentencing in individual cases, followed by severe limits on that discretion in an attempt to end alleged disparities in punishment flowing from that very judicial discretion. The undertones of this sentencing journey stem from competing theories of discretionary and mandatory sentencing that have risen and fallen, aided by the ever-changing winds of congressional politics.
The U.S. Constitution does not explicitly assign jurisdiction for federal sentencing among the three branches of government. Unquestionably, Congress has the power to set sentences for federal crimes. From the beginnings of the republic to the effective date of the United States Sentencing Guidelines on November 1, 1987, federal district judges were entrusted, and had virtually unbounded and unreviewable discretion, to sentence an offender anywhere within the wide statutory range established by Congress. For example, probation to 10 years or probation to 20 years were often the ranges prescribed by Congress for a number of federal crimes. Because of this broad grant of discretion, which included suspending the sentence in favor of probation, an elaborate system of both probation and parole was created. The parole system allowed corrections personnel within the executive branch to release federal prisoners prior to the expiration of the judge-imposed sentence. Thus, a three-way sharing of sentencing responsibility unfolded. In sum, before the regime created by the Sentencing Reform Act of 1984 (SRA), Congress determined the maximum sentence for each crime, federal district judges then sentenced within that range, and the parole system within the executive branch determined the exact length of imprisonment.
That changed dramatically in the mid-1980s when Congress passed both the SRA and the Anti-Drug Abuse Act of 1986 (ADAA). The SRA jettisoned indeterminate sentencing and parole by creating the United States Sentencing Commission and the mandatory federal sentencing guidelines. The ADAA provided the kill shot by creating a plethora of mandatory minimum sentences that had never been part of the federal sentencing landscape.
True, the first series of federal criminal laws in the 1790 Crimes Act contained mandatory death sentences for murder, treason, and piracy, and it also contained a 10-year mandatory minimum for running a ship aground. But it was not until 1951 that Congress passed the first mandatory minimum for drug crimes, making it a mere two years. That shift in sentencing policy was short-lived, as mandatory minimum sentences for drug crimes became widely unpopular. The Nixon administration proposed—and Congress enacted in 1970—sweeping new drug legislation, which repealed nearly all mandatory minimum sentences for drug crimes.
The congressional distaste for mandatory minimums was again short-lived. The ADAA was passed with lightning speed and established a host of mandatory minimums that are still with us today. Over time, Congress developed a voracious appetite for even more far-flung mandatory minimums. Some are triggered by the offender’s criminal history (e.g., three strikes, armed career criminal) and others by the nature of the offense (e.g., the usual suspects of drugs, firearms, and child pornography, plus more esoteric examples like attacks in mass transit where death results, murder of a poultry inspector, and maritime transportation of terrorists).
Many people do not realize that the passage of both the SRA and the ADAA and other mandatory minimum sentences were thoroughly bipartisan, with Democrats sponsoring these bills and President Reagan eagerly signing them. This bipartisanship was best demonstrated by the two most vigorous proponents of the SRA in the Senate, the liberal lion Ted Kennedy and the archconservative Strom Thurmond. There were unusual circumstances giving rise to the impetus for the SRA, including a dinner party hosted by Ted Kennedy in 1975 and attended by a Columbia University law professor turned federal judge and leading proponent for reining in judicial sentencing discretion, Marvin Frankel. Also, the tragic death of University of Maryland star basketball player Len Bias, drafted by the Boston Celtics days before he passed, was the impetus for the ADAA. For a brief history of these unusual events, see Mark Osler & Mark W. Bennett, A “Holocaust in Slow Motion?”: America’s Mass Incarceration and the Role of Discretion, 7 DePaul J. Soc. Just. 117, 130, 133 (Spring 2014).
The passage of the SRA and its creation of the U.S. Sentencing Commission and the federal sentencing guidelines brought about the greatest revolution in federal sentencing since the birth of the nation. The guidelines became effective on November 1, 1987. For the first time, federal judges faced a mandatory and exceptionally complex system of sentencing rules, focusing on the current offense, prior criminal history of the offender, and a byzantine set of aggravating factors and precious few mitigating factors. The result required sentencing judges to compute a very narrow range from a 258-cell grid, the centerpiece of federal sentencing (the Sentencing Table), that expresses a sentence range of months, e.g., 262–327 months.
The Sentencing Table is based on an extremely long set of instructions—the guidelines themselves—running more than 500 pages. The Sentencing Table contains 43 criminal “offense levels” on the vertical axis, which intersects with six “criminal history” categories on the horizontal axis, thus creating the 258-cell grid. Most scholars and some judges believe this “grid and bear it” approach to sentencing should be consigned next to leisure suits in the 20th-century museum of lousy ideas. For a detailed explanation of how the guidelines work in practice and the many hoops a federal district judge must jump through to accurately compute them, see Mark W. Bennett, A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges, 873 Rutgers L. Rev. 886–92 (2014). That article contains a detailed flow chart of how a federal judge computes a guideline sentence.
In sum, every federal crime has a guideline base offense level (BOL), which is the starting point for computing which of the 258 cells the crime falls within. Many BOLs also have specific offense characteristics (SOCs), which may change the cell that the offender falls within and dramatically increase the length of sentence. A prime example is the fraud guideline. This supersized guideline runs 23 pages, containing 16 subparts in its loss table that can potentially add from 2 to 30 levels to the BOLs of 6 or 7, with significant increases in the levels based on the amount of monetary loss suffered by the victim. Then the fraud guideline adds 19 SOCs with a total of 34 subparts, many of which read like a last-minute special-interest rider to the U.S. Tax Code; these SOCs can further add years to an offender’s sentence.
At its birth by Congress in 1984, the U.S. Sentencing Commission wielded its considerable discretion to astoundingly increase the length of sentence for virtually every federal crime. I was always stupefied when a proposed sentence calculated under the guidelines called for incarceration longer than the statutory maximum—a legal impossibility but proof positive the guidelines were so often irrational. At or near the root of the many criticisms of the guidelines is that they require imposition of a prison sentence way too often and sentences that are way too long.
While harshness was the first commission’s mantra, transparency was its anathema. The early commission, while creating the guidelines, could have had open meetings and procedures imbued with transparency. Instead, the commission opted for closed private meetings, often engaging in ex parte unrecorded communications with the Department of Justice and law enforcement officials. Early in the commission’s process of promulgating its guidelines from scratch, the federal judiciary’s efforts to persuade the commission to moderate the harshness of the guidelines were rebuffed, as the Department of Justice simultaneously exerted its influence for harsher sentences. Practitioners and judges watched with alarm as the commission ignored the evidence and views presented to it and the commission implemented an agenda that profoundly altered federal sentencing to this day.
The SRA, as adopted, changed the prior indeterminate sentencing scheme in five important ways, as described by the U.S. Supreme Court in Mistretta v. United States, 488 U.S. 361, 367–68 (1989), the first constitutional challenge to the commission:
It rejected imprisonment as a means of promoting rehabilitation and stated that punishment should serve retributive, educational, deterrent, and incapacitative goals.
It consolidated the power that had been exercised by the sentencing judge and the Parole Commission to decide what punishment an offender should suffer. This was accomplished by creating the United States Sentencing Commission, directing that commission to devise guidelines to be used for sentencing, and prospectively abolishing the Parole Commission.
It made all sentences basically determinate. A prisoner was to be released at the completion of the prisoner’s sentence, reduced only by any credit earned by good behavior while in custody.
It made the commission’s guidelines binding on the courts, although it preserved for judges the discretion to depart from the guideline applicable to a particular case if the judge found an aggravating or mitigating factor present that the commission did not adequately consider when formulating guidelines. The act also required the court to state its reasons for the sentence imposed and to give “the specific reason” for imposing a sentence different from that described in the guideline.
It authorized limited appellate review of the sentence, especially if the sentencing judge incorrectly determined the guideline range.
Since their inception, the guidelines have mostly operated as a one-way upward ratchet. The commission has frequently raised them and seldom lowers them. For example, immediately after the guidelines became law in 1987, a typical fraud crime produced a guideline range of 30 to 37 months. By 2003, the guidelines in that identical fraud case rose to a jaw-dropping 151 to 188 months, more than a 500 percent increase.
In 2005, federal sentencing underwent yet another major upheaval when the U.S. Supreme Court found in United States v. Booker, 543 U.S. 220 (2005), that the then mandatory guidelines were unconstitutional under the Sixth Amendment because they allowed for a sentencing judge to enhance sentences based on facts not reviewed by juries. But the guideline structure of federal sentencing was preserved when the Court found the guidelines “advisory” rather than “mandatory” and determined that the Sixth Amendment was not implicated. Post-Booker, the focus of sentencing was on the statutory factors contained in 18 U.S.C. § 3553(a), the most significant being “the nature and circumstances of the offense and the history and characteristics of the defendant.”
Judges who were willing to “vary” from the computed guideline cell of one of 258 now had more freedom to consider aggravating and mitigating factors. Given the strong gravitational pull of the guidelines and their strong cognitive anchoring effect, surprisingly few judges exercised this discretion. Many judges feel safer in sentencing within a guideline-calculated range for two reasons. First, they know they will not be reversed. Second, they also believe that practice reduces unwanted sentencing disparity—the mantra of the SRA movement. I believe that the guidelines and mandatory minimums unduly promote unwarranted sentencing uniformity that is often worse than unwarranted sentencing disparity.
Thus, in the span of just two decades, the arc of federal sentencing had gone from hundreds of years of virtually unlimited discretion, then to mandatory guidelines with virtually no discretion, and then back to limited sentencing discretion in a guideline context that emphasized the reasonableness of the sentence imposed.
No area of federal law that I know of has engendered more criticism by members of the public, legal scholars, criminal justice professionals, and judges than federal sentencing. Hundreds of law reviews and other articles have been written excoriating the past 50 years of federal sentencing. While the breadth and depth of these criticisms are beyond the scope of this article, I would be remiss if I did not mention a few of them.
First, since its inception in 1984, the commission has spread the view that the guidelines are empirically based. But that is not true. I first heard this view in 1994 when I attended new judges’ school and received excellent training from the commission staff on how to correctly compute the guidelines. I originally accepted the notion that the guidelines were empirically based and deserved great deference, until I did my own deep dive into their creation. I learned in judges’ school that the original commission reviewed 10,000 presentence reports and sentencings across all case types before promulgating the guidelines. What I was not told then was that the commission, while farming these data, threw out nearly 50 percent of cases in which the offender received probation from the judge. That dumping of crucial data on low-end sentences renders the claim of empirically based guidelines somewhere between exceptionally problematic and incredibly deceptive. Worse, the commission then and since has never publicly explained why the nearly 5,000 cases in which probation was given were deep-sixed from creating the guideline ranges contained in the 258-cell grid that is the Sentencing Table. This myth of empirically based federal sentencing guidelines explains why the guidelines have a much stronger gravitational pull than they should have, and it is a major cause of sentences that are too long and too guideline-centric.
Second, the combination of the SRA and the ADAA led to a dramatic rise in mass incarceration. The rigorous application of the guidelines by federal judges, coupled with the breathtaking increase in the number and length of mandatory minimums, propelled a staggering increase in the federal prison population, which grew by a whopping 761 percent from 1980 to 2010. The United States incarcerates a higher percentage of its population than any country in the world, which obviously includes North Korea, China, and Russia.
Third, the mandatory minimums created by the ADAA disproportionately fall on offenders of color. In August of 2023, the U.S. Sentencing Commission published data showing that 29.6 percent of all cases carried a mandatory minimum penalty and that the average length of their sentences was 144 months. In an earlier report, the commission noted the huge disparity of mandatory minimum sentences on racial minorities. Hispanic offenders represent the largest group of offenders (40.4 percent) convicted of an offense carrying a mandatory minimum penalty. Black offenders at 29.7 percent, White offenders at 27.2 percent, and other race offenders at 2.7 percent accounted for the remaining offenders convicted of an offense carrying a mandatory minimum penalty.
Moreover, nationally, not just in federal courts, a Black male born in the late 1960s, after the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, is more than twice as likely to have been imprisoned as one born in the 1940s. According to Department of Justice statistics, among prisoners aged 19 and 20, Black males were imprisoned at more than nine times the rate of White males, and Hispanic males were imprisoned at more than three times the rate of White males. Among males aged 20 to 24, Blacks were imprisoned at more than seven times the rate of White males, and Hispanic males were imprisoned at nearly three times the rate of White males. Even at the other end of the age spectrum, among males aged 60 to 64, Black males were imprisoned at five times the rate of White males and Hispanic males nearly three times the rate of White males. Depending on their ages, both Black females and Hispanic females were imprisoned at between two to three times the rate of White females.
The racial disparity associated with the sentencing of crack and powder cocaine offenses in the federal system after Congress passed the draconian ADAA is well known. The ADAA created a quantity-based 100:1 disparity between crack cocaine and powder cocaine offenses, imposing the same 5- and 10-year mandatory minimum penalties for selling 5 and 50 grams of crack cocaine as for 100 times that amount of powder cocaine. In 1986, before the law passed, the average federal drug sentence for African Americans was 11 percent higher than for Whites; but within four years, this average was 49 percent higher. A 2007 analysis by the U.S. Sentencing Commission showed that 82 percent of people convicted of crack-related offenses were Black, a stunning difference compared with Whites (9 percent). This dramatic disparity was reduced, but not eliminated, through the Fair Sentencing Act of 2010, which lowered the disparity to 18:1 from 100:1. For a detailed history of the crack/powder disparity, including the argument on why federal judges, even after the Fair Sentencing Act of 2010, should use a 1:1 ratio as a starting point in crack sentencing, see United States v. Williams, 788 F. Supp. 2d 847 (N.D. Iowa 2011) (Bennett, J.). In Williams, I held that Congress’s adoption of the 18:1 ratio was the result of a purely political compromise and not based on a reasoned analysis of social science research or empirical data. While a dramatic improvement on the former 100:1 ratio, the new law still would have significant disproportionate impact on Black offenders, which would continue to foster disrespect for and lack of confidence in the criminal justice system.
Fourth, both the SRA and the ADAA radically shifted enormous sentencing discretion from Senate-vetted and confirmed federal judges to assistant U.S. attorneys, some of them barely out of law school and incredibly inexperienced in their mid to late 20s. True, all sentencing schemes allow for some discretion. The burning question is where within a sentencing scheme should the discretion lie? Clearly, federal prosecutors were the intended beneficiaries of this federal sentencing “reform” in the mid-1980s, because mandatory minimums are usually triggered by the charge the federal prosecutor chooses to bring. For example, I noted that drug offenders I sentenced who had one or more prior state drug convictions (even some misdemeanor ones) were charged by prosecutors under a recidivist statute, 21 U.S.C. § 581, with enhancements that doubled their mandatory minimums 79 percent of the time. In neighboring Nebraska, which I could see out my courtroom windows, the same defendant was 2,532 percent less likely to receive this enhancement. And compared with South Dakota, which I could see from my chambers except for a hill in the way, a defendant in the Northern District of Iowa was 1,981.25 percent more likely to have his or her sentence enhanced. Also, a defendant in the Northern District of Iowa was 626 percent more likely to receive this enhancement than the median national average for eligible defendants. See United States v. Young, 960 F. Supp. 2d 881 (N.D. Iowa 2013) (Bennett, J.).
Is this type of discretion best left in the hands of federal prosecutors or federal judges? Most scholars of federal sentencing opt for judges. I respectfully suggest this breathtaking prosecutorial discretion is far more problematic than the discretion judges exercised prior to the “reforms” of the mid-1980s. Fortunately, these disparities were somewhat reduced by a section of the First Step Act of 2018. The enhanced recidivist penalties imposed under 21 U.S.C. § 851 were narrowed, and when they did apply, they were somewhat less severe under the First Step Act. In the first year of the First Step Act, the number of offenders who received enhanced penalties under 21 U.S.C. § 851 was reduced by 15.2 percent. In that first year, 21 offenders benefited from the reduction of a life sentence enhancement under section 851 to the new 25-year mandatory minimum under the First Step Act.
Other reforms in the First Step Act expanded the guideline “safety valve,” so that offenders were more likely to receive relief from mandatory minimum sentences. In the first year of the First Step Act, there were 1,369 drug offenders newly eligible under the act’s expanded criteria for avoiding a mandatory minimum sentence. The First Step Act also limited the effect of the “stacking” provisions of 18 U.S.C § 924(c), thus reducing the application of the 25-year mandatory minimum for certain firearm convictions because of prior firearm convictions. The First Step Act also made the Fair Sentencing Act of 2010 retroactive. The Fair Sentencing Act of 2010 had reduced the disparity between sentences for crack and powder cocaine only for offenders on or after its effective date. The First Step Act also eliminated the mandatory minimum for simple possession of crack. Finally, the First Step Act authorized a defendant to file a motion for “compassionate release.” In the first year of the First Step Act, 145 motions for compassionate relief were granted, a fivefold increase over the prior year.
So where are we now? In my view, federal sentencing over the past 50 years has been a tragic mess. Decades of conflicting legislative experiments that began with high hopes led to bone-crushingly severe sentences and lengthy mandatory minimum sentences that fueled mass incarceration and devastated many urban centers. But the pendulum is swinging, albeit slowly, in a more progressive direction thanks to the Fair Sentencing Act of 2010, the First Step Act of 2018, and other federal sentencing reforms, including the 2014 amendment to the guidelines called the “Drugs Minus Two Amendment.” This amendment reduced by two levels the base offense level in the guidelines for most drug offenses. The commission also applied the amendment retroactively. Since then, federal courts have granted more than 30,000 retroactivity motions, resulting in an estimated average sentence reduction of more than 17 percent from 146 months to 121 months.
The addition of new members to the U.S. Sentencing Commission bodes well for reform. The commission is an independent agency in the judicial branch created by the SRA in 1984. There are seven voting members appointed by the president and confirmed by the Senate for six-year staggered terms. In 2022, the Senate confirmed a full slate of seven commissioners, marking, for the first time since 2018, that the commission had a voting quorum. At least three of the commissioners must be federal judges, and no more than four members of the commission may belong to the same political party. The commission periodically reviews and revises previously promulgated guidelines and generally submits guideline amendments to Congress no later than the first day of May each year. Absent action of Congress to the contrary, submitted amendments become effective by operation of law generally on November 1 of the year the amendments are submitted.
One proposed amendment would eliminate a judge’s ability to use “acquitted conduct” to increase a defendant’s sentence—such a persistent concern that a number of judges and justices have urged reconsideration of “acquitted conduct.” Also, there is a proposal to allow age to be a factor for a downward departure where the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally as efficient as and less costly than incarceration. The commission voted on August 9, 2024, on priorities for the 2024–2025 guideline amendment cycle. They include reducing the cost of unnecessary incarceration; improving community supervision; expanding the commission’s use of expertise, evidence, and best practices; and promoting evidence-based approaches to offense levels and individual characteristics of offenders. I expect many thoughtful improvements in amendments to the guidelines proposed by this commission.
Returning to my sentencing journey, I want to discuss my visits to federal inmates and the impact they had on my sentencing philosophy. The idea for such visits came to me years ago when I was speaking at a federal judges’ meeting in Long Beach, California. I had sentenced four Los Angeles bank robbers from South Central L.A. to federal prison and recommended that they serve their time at a federal prison in Long Beach, California, with the ominous name Terminal Island. So, before arriving in Long Beach, I called the warden at Terminal Island and asked for a tour. He was excited to oblige. While touring with the warden, I asked if I could “interview” three or four randomly selected inmates with no staff present, but not ones that I had sentenced. In half an hour, I was in a small room with a full-body-tattooed Hispanic gang banger, an Anglo drug dealer, and an aging Black recidivist crack addict/dealer.
An hour-and-a-half discussion with the inmates flew by. I asked each one questions, everything from why and how they became federal felons, to what they thought of their defense lawyers, sentencing judge, and federal prosecutors. We also talked about our families and how things were so rapidly changing outside their walls. As it was time to leave, the African American inmate sitting less than an arm’s reach on my right started to sob. I was concerned that I had unknowingly offended him. Placing my right hand on his knee, I asked softly what I had asked or said that upset him. It took him nearly a minute before he was able to speak. He said quietly, through his tears, something I will carry with me to my grave: “Judge,” he said, “never in my wildest imagination did I ever think I would be in a room with a federal judge, and he would be asking my opinion about something.” I was deeply touched. That response repeated itself in my mind over and over on the way back to my hotel and on the airplane back to Iowa the next day. I took no immediate action, but the response from the Terminal Island inmate was unforgettable.
About a year later, I decided to visit inmates that I had personally sentenced. I engaged in this practice until I retired. Shortly before I retired as a federal judge, I was listening to several videos by renowned civil rights lawyer Bryan Stevenson about the power of proximity. I finally realized that getting proximate with offenders I had sentenced had been the single most powerful set of experiences influencing my sentencing philosophy. My dear friend U.S. District Judge Stephen Bough from the Western District of Missouri, who also visited inmates he had sentenced, has written: “each interaction reminds me that felons share more similarities than differences with nonfelons. The sentences I impose are more informed because of my determination to get to know people—their struggles, addictions, family life, triggers, motivation, and goals.” Stephen Bough, Getting to Know a Felon: One Judge’s Attempt at Imposing Sentences That Are Sufficient, But Not Greater Than Necessary, 87 U.M.K.C. L. Rev. 25, 33 (2018). I could not write this better. Judge Bough captures the essence of the power of proximity and why federal judges should adopt this practice.
Once, when I was sentencing a typical drug offender, I noticed in his presentence report his long history of working in fast-food establishments. Near the end of his sentencing hearing, he asked that I send him to federal prison in Minnesota. I mentioned to him that I had visited a federal prison in Oxford, Wisconsin, and that the prison had a terrific culinary arts program and placed many of their “graduates” in fine dining restaurants in Chicago. After the sentencing, I wrote a letter to the warden of Oxford, urging him to admit the inmate to its culinary arts program, which was small and hard to get into. Years later, I received a very warm letter from the inmate saying that he had been released from Oxford and was working at a great restaurant in Chicago. He was deeply appreciative of my efforts, and I of his.
The current regime of federal sentencing has a theoretical balance to it. The guidelines are now advisory so that a judge can vary upward or downward from the guideline range based on aggravating or mitigating factors. This strikes a balance between the former indeterminate sentencing regime and the mandatory nature of the initial SRA. But there is room for much improvement. Here are my suggestions:
Eliminate all mandatory minimum sentences. Judges can determine when a defendant deserves a long sentence. Also, because sentences can be appealed by either side based on reasonableness review, if a sentence is too lenient in the prosecutors’ eyes, it can be appealed. As retired federal District Judge Nancy Gertner has written, “[a]ny discussion of federal sentencing must begin with Congress and the severe mandatory minimum sentences it promulgated—sentences that made no sense under any rational sentencing policy. Congress may have had dealers in mind . . . but the legislation swept in small-fry drug mules, addicts coerced by their addiction, and women threatened by their ‘bosses.’” Hon. Nancy Gertner, Against These Guidelines, 87 U.M.K.C. L. Rev. 49, 51 (2018).
Failing the end of all mandatory minimums, expand the guideline “safety valve” that creates relief from mandatory minimums beyond drug cases to all cases for which there is a mandatory minimum. This would allow any defendant who meets the rigorous requirements of the “safety valve” to receive relief from a mandatory minimum.
Further reduce the base offense level for all drug crimes by another two-level reduction in the guideline calculations. This mirrors the previous Drugs Minus Two Amendment of 2014. It would help reduce the bone-crushing length of most drug offenses. See United States v. Hayes, 948 F. Supp. 2d 1009 (N.D. Iowa 2013), in which I cut the base offense level of the methamphetamine drug guidelines by one-third based on a policy disagreement, because the commission did not employ an empirical approach when setting the guideline ranges for drug offenses.
Reform the fraud guidelines. I offer five proposals:
The basis for these proposals is explained in Mark W. Bennett & Justin Levinson, Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform, 102 Iowa L. Rev. 939 (2017). That article also contains a detailed flow chart of how federal judges compute a fraud guideline sentence. These five proposals would simplify the fraud guidelines in response to the many criticisms by federal judges and federal sentencing scholars.
In new judges’ school, teach that the guidelines never were and are not empirically based, so that a judge should weigh what deference to give them in the new “advisory” sentencing regime. Judges should also be taught, through easily crafted hypotheticals, the enormous subconscious gravitational pull toward within-guideline sentences that cognitive anchoring bias has on them. See Mark W. Bennett, Confronting Cognitive “Anchoring Effect” and “Blind Spot” Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw, 104 J. Crim. L. & Criminology 489 (2014) (arguing that, post-Booker, discretion is underutilized because of the strong subconscious effect of the cognitive anchoring bias driven by the numerical formulations in the guidelines, and suggesting an easy fix to this problem).
I offer these proposals as someone with a long record of criticisms of the federal sentencing guidelines, and their formation, content, and application. But I offer my thoughts based on years of experience working with the guidelines, through over 4,000 cases in which the guidelines had a direct impact on an individual’s life and freedom
