Did the Sentencing Commission Just Make the Guidelines Even Worse?

Twenty years after the Supreme Court's decision in Booker v. United States, the Commission finally adjusts the Guidelines Manual

In 2005, I was on a fellowship at the Institute of Criminology at the University of Cambridge in England. I was there to study the criminal justice reforms being enacted by the British Labor Government of Prime Minister Tony Blair, including the introduction of sentencing guidelines in England and Wales. As it so happened, just weeks after Booker v. United States was decided by the U.S. Supreme Court, I visited the staff of the then-relatively new Sentencing Guidelines Council in London. During the meeting, I glanced over to the desk of the Council’s staff director. I was amazed to see there a copy of the Booker decision.

I asked the director what he thought of the decision and the federal sentencing guidelines. He hesitated, as I later learned, because he didn’t want to offend his guest with his candid and quite negative assessment of U.S. federal sentencing law and policy. But after some acclimating conversation, I eventually pried out of him a startling fact: in crafting the guidelines for England and Wales, the one guidepost all in Britain then working on sentencing reform agreed to was that the structure and design of the U.S. federal Sentencing Guidelines Manual were to be avoided at all costs. It would not be the last time in my career I would come face-to-face with the truth that the federal sentencing system is not a model of sentencing policy embraced anywhere. I say this with great disappointment, having worked on federal sentencing policy for decades. When states and nations are considering enacting sentencing guideline systems, they study those from North Carolina, Minnesota, Pennsylvania, Oregon, and England and Wales for models to emulate; and the federal system for one to avoid.

I asked the Council director whether the concerns with U.S. federal sentencing stemmed from the two-step architecture that underlies the federal guidelines – and sentencing guidelines issued by almost all states and nations that have adopted them. That architecture requires users first – in Step One – to determine a recommended sentencing range based on a formula developed by the sentencing commission, and second – in Step Two – for judges to determine whether to sentence an individual defendant outside that recommended range or at a particular point within the range.

“Oh, no,” he said. “We intend to adopt a two-step architecture ourselves.”

“Do you object to the Supreme Court making the federal guidelines advisory only?”

“Oh, no,” he said. “We intend to adopt advisory guidelines as well.”

“Well then, what do you find so objectionable about the U.S. federal guidelines?”

There was no hesitation now. “The formulas in Step One are far too complicated and forever getting more complicated. They are based on a false sense of precision and rely on quantifiable factors that almost exclusively just add up the harms caused by the offense. There’s no accounting for culpability factors in most guidelines. And the sentences are very severe, especially for drug trafficking. We just don’t see the federal system as a good model compared to most U.S. state guideline systems.”

None of this, of course, was really a surprise. The federal guidelines have been relentlessly criticized since they were first rolled out in the late 1980s. And that criticism has focused on Step One – the guidelines calculation – its false precision, complexity, reliance on quantifiable factors, lack of accounting for culpability factors, severity, and more.

So, when last spring, the Sentencing Commission announced, with great fanfare, an ambitious agenda of reform priorities for the 2024-25 guideline amendment year, many of us were very excited. Structural reform was long overdue.

In this 40^th anniversary year of the Sentencing Reform Act (SRA), and 20^th anniversary year of the Supreme Court’s decision in Booker, the Commission said it would be reflecting on the core goals of the Sentencing Reform Act, the progress that has been made towards meeting them, and what actions might be taken now, and in the future, to further them. It sounded like a big deal. Here’s an excerpt from the formal Federal Register notice following the announcement –

In light of the 40th anniversary of the Sentencing Reform Act of 1984, Pub. L. 98–473, 98 Stat. 1987 (1984), the Commission intends to focus on furthering the Commission’s statutory purposes and missions as set forth in the Sentencing Reform Act, including:

(1) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . assure the meeting of the purposes of sentencing” — namely, rehabilitation, deterrence, just punishment, and incapacitation. 28 U.S.C. 991(b)(1)(A).

(2) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities.” 28 U.S.C. 991(b)(1)(B).

(3) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . reflect, to the extent practicable, advancement of knowledge of human behavior as it relates to the criminal justice process.” 28 U.S.C. 991(b)(1)(C).

(4) “[M]easuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing.” 28 U.S.C. 991 (b)(2).

(5) Establishing “general policies and promulgat[ing] such rules and regulations for the Commission as are necessary to carry out” the Commission’s statutory missions. 28 U.S.C. 995(a)(1).

(6) Requesting “such information, data, and reports from any Federal agency or judicial officer as the Commission may from time to time require and as may be produced consistent with other law.” 28 U.S.C. 995(a)(8).

(7) “[S]erving as a clearinghouse and information center for the collection, preparation, and dissemination of information on Federal sentencing practices.”
28 U.S.C. 995(a)(12)(A).

(8) Devising and conducting “seminars and workshops providing continuing studies for persons engaged in the sentencing field” and “training programs of instruction in sentencing techniques for judicial and probation personnel and other persons connected with the sentencing process.” 28 U.S.C. 995(a)(17)–(18).

(9) Making “recommendations to Congress concerning modification or enactment of statutes relating to sentencing, penal, and correctional matters that the Commission finds to be necessary and advisable to carry out an effective, humane and rational sentencing policy.” 28 U.S.C. 995(a)(20).

(10) Holding “hearings and call[ing] witnesses that might assist the Commission in the exercise of its powers or duties.” 28 U.S.C. 995(a)(21).

(11) Performing “such other functions as are required to permit Federal courts to meet their responsibilities under section 3553(a) of title 18, United States Code, and to permit others involved in the Federal criminal justice system to meet their related responsibilities.” 28 U.S.C. 995(a)(22).

Commission Chair Carleton Reeves raised expectations for the amendment year. Judge Reeves took the extraordinary step of personally soliciting comments from judges and others across the country. He and the Commission sought and then received a vast array of comments and suggestions – there were more than 1,200 pages of them – on what work the Commission should prioritize during the amendment year ending May 1, 2025. The Commission then held roundtables on ways to reform the drug guideline and supervised release too. There was no shortage of reform proposals suggested (see, e.g., A Better Drug Guideline, https://sentencing.substack.com/p/a-better-federal-drug-guideline). Momentum was building.

A few months later, in December and then again in January, the Commission published proposed guideline amendments for public comment. They included hundreds of pages, including a rewrite of sorts of the entire Guidelines Manual. With the proposals, the stage was now set for a historic amendment year. The published proposals made clear that the Commission was seriously considering making fundamental change to the guidelines system, including by –

• Reforming the drug guideline, perhaps the single most criticized guideline in the Guidelines Manual;

• Creating an alternative to the “categorical approach” used in various guidelines to determine whether a prior conviction qualifies a defendant for enhanced penalties and a thorn in the side of judges and practitioners everywhere;

• Addressing unwarranted disparities in the application of the guideline for methamphetamine offenses (the most common drug offense); and perhaps most importantly,

• Simplifying the application of the Guidelines and incorporating Booker in the Guidelines Manual.

With expectations high, last Friday, the Commission’s amendment year came to an end with a rather short and quite opaque public meeting, unbecoming given the importance of the issues at stake and the process leading up to it. There were votes on amendment proposals for sure, but almost no explanation from commissioners for the consequential choices they were making. It turned out to be quite a disappointment.

First, there was no discussion of the Commission’s thinking and how it arrived at its decisions. The Commission spent two and half days in deliberations behind closed doors, and then in a public meeting of less than a half hour, explained nothing of how those deliberations resulted in the actions taken and not taken. Judges, practitioners, Members of Congress, advocates, inmates, family members, and academics spent countless hours developing and submitting written comments to the Commission, and there was virtually no explanation of how those comments were considered. Second, the Commission in the end did not even address the categorical approach. No matter how many times the Commission places the issue on its priorities – and it has over and again for over a decade – it just can’t seem to find a fix. And again, no explanation.

Third, the Commission did not address the unwarranted disparities in methamphetamine sentencing identified by numerous commentors. This seemed especially perplexing given Judge Reeves' own detailed decision in United States v. Robinson, holding that the methamphetamine purity enhancement had ceased to have any meaning. And again, no explanation. Fourth, the Commission made no fundamental reform to the drug guideline or to Step One of any other guideline. It did take steps to ensure that drug offenders who play a mitigating role are not over-punished. But the Commission has tried this before – numerous times, in fact – and it is far from clear that the steps taken will make a significant difference in drug sentencing policy.

The guideline formulas of Step One which have been the basis of the fundamental critique of the federal guidelines were left almost entirely alone. And then, this headline decision. Rather than consolidating Steps Two and Three of the sentencing process to simplify the Guidelines and incorporate Booker into them while still guiding courts in whether to sentence individual defendants outside that recommended range or at a particular point within the range, the Commission simply eliminated Step Two and then also eliminated all guidance on what now will be the second and final step for sentencing after calculating the guideline range.

Under the new guideline architecture, courts will continue to calculate the guideline sentencing range under Step One. They will continue to use the flawed guideline formulas found in many guidelines, especially the drug and fraud guidelines. But now, when the courts move to the judging part of the sentencing process, they will be left without any guidance. Courts will take Step Two on their own. I’m not sure why the Commission thinks this will better achieve the statutory purposes of sentencing reform. I’m not sure why this won’t result simply in greater unwarranted sentencing disparity. It strikes me that eliminating the guidance has made the sentencing process worse.

Take the drug guideline. The fundamental structure of the guideline and of Step One of the sentencing process is unchanged. The critique of the guideline that it relies too heavily on drug type and quantity and only minimally accounts for culpability remains. This is what the Commission heard at the roundtable it held last year and left unaddressed.

But worse, under the amended system, after calculating the guideline range, the sentencing court is on its own to determine the appropriate sentence that is sufficient but not greater than necessary. The Commission chose to eliminate guidance from the drug guideline, which all indications suggest was helpful to courts in this part of the process. For example, the following guidance for cases involving reverse sting operations was eliminated.

Downward Departure Based on Drug Quantity in Certain Reverse Sting Operations.—If, in a reverse sting (an operation in which a government agent sells or negotiates to sell a controlled substance to a defendant), the court finds that the government agent set a price for the controlled substance that was substantially below the market value of the controlled substance, thereby leading to the defendant’s purchase of a significantly greater quantity of the controlled substance than his available resources would have allowed him to purchase except for the artificially low price set by the government agent, a downward departure may be warranted.

And this guidance on efforts to avoid detection –

An upward departure nonetheless may be warranted when the mixture or substance counted in the Drug Quantity Table is combined with other, non-countable material in an unusually sophisticated manner in order to avoid detection.

And this on unusually high purity cases –

Upward Departure Based on Unusually High Purity.—Trafficking in controlled substances, compounds, or mixtures of unusually high purity may warrant an upward departure, except in the case of PCP, amphetamine, methamphetamine, hydrocodone, or oxycodone for which the guideline itself provides for the consideration of purity (see the footnote to the Drug Quantity Table). The purity of the controlled substance, particularly in the case of heroin, may be relevant in the sentencing process because it is probative of the defendant’s role or position in the chain of distribution. Since controlled substances are often diluted and combined with other substances as they pass down the chain of distribution, the fact that a defendant is in possession of unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of the drugs. As large quantities are normally associated with high purities, this factor is particularly relevant where smaller quantities are involved.

Why was all of this guidance eliminated? Will sentencing courts make better decisions without it? Did anyone suggest the guidance was wrong? The commissioners gave no explanation at the public meeting what they were thinking.

Over the next few weeks, we’ll review what the Commission did in greater depth and suggest alternative approaches the Commission might have taken to make the Guidelines better, addressing the flaws in Step One and keeping the helpful guidance in a consolidated Step Two. For now, the structural steps the Commission took on Friday – the most significant since Booker was decided – appear to have made the system worse.