Before 1987, federal sentencing worked in much the same was as sentencing operates in most states. For each federal crime, Congress would enact a maximum sentence. Occasionally it would enact a mandatory minimum sentence (a practice that became increasingly popular during and after the 1980s.)

As long as a federal judge did not exceed the maximum or impose a sentence below the minimum, the judge could impose any sentence the judge considered to be fair.

Traditionally, the judge would consider a defendant’s criminal record and the severity of the crime as well as a variety of other factors, including information provided in a pre-sentence report. The broad discretion granted to sentencing judges assured that individualized sentences were tailored to the offender and the offense.

History of Federal Sentencing Commission

During the 1980s, politicians increasingly responded to political pressure to be “tough on crime.” During that era, in fact, it was difficult for politicians to be elected to office without assuring voters that they were not only tough on crime, but that their opponents were “soft on crime.”

At the same time, sentencing philosophy, which once gave weight to the opportunity for rehabilitation, began to place greater emphasis on deterrence and punishment. Politicians and judges who talked about the possibility of rehabilitating an offender were criticized for being soft on crime.

To prove how “tough” they could be in the political climate of the 1980s, legislators began to enact stiffer penalties for federal crimes, particularly violent crimes and drug crimes. Many politicians seeking political gain claimed that judges were too lenient when they imposed sentences. Searching for a way to constrain judicial discretion, Congress created the Federal Sentencing Commission.

The Sentencing Commission was charged with providing “certainty and fairness” by creating sentencing guidelines for judges to follow. In theory, the guidelines would eliminate sentencing disparity by assuring that offenders with similar criminal histories who committed similar crimes would receive similar penalties.

In practice, the guidelines did little to eliminate sentencing disparity. While depriving judges of the chance to give lenient sentences to deserving defendants, the guidelines shifted power to prosecutors, who could reward informants and other cooperating defendants by agreeing to a “downward departure” — in other words, a shorter sentence — to reward them for their cooperation.

The result was a system that sometimes gives the most lenient sentences to the most serious criminals, because they were first in line to snitch on other criminals (and the most likely to increase their own value as informants by making up stories that made other offenders seem worse than they actually were).

The Sentencing Commission was created in 1984. The first set of Sentencing Guidelines took effect in 1987. Until 2005, federal courts uniformly interpreted the Sentencing Guidelines to be mandatory. In other words, they were not guidelines at all. They amounted to a micromanaging of sentencing that forced judges to dispense sentences based on specified factors.

In a drug case, for instance, the judge would need to decide the total drug quantity involved in the crime, whether the defendant played a leadership role in a drug conspiracy, whether the defendant carried a weapon, and so on.

Each aggravating factor that applied to a particular defendant would result in a harsher sentence. Judges had almost no discretion to impose a more lenient sentence than the guidelines required. Fairness was not a factor that the guidelines allowed judges to consider.

Apart from preventing judges from doing justice in individual cases, the guidelines moved the authority to decide what the defendant actually did from the jury to the sentencing judge. A jury (if the defendant elected to have a trial) would still decide that the defendant committed a crime, but the true nature of that crime was decided by the judge. For instance, a jury might hear evidence that a defendant sold one gram of crack.

The jury might then convict the defendant of distributing a controlled substance. Based on evidence the jury never considered and might not have believed, the judge would then decide that the defendant actually distributed one kilogram of crack and would sentence the defendant accordingly. Sentences also depended heavily upon uncharged relevant conduct, including related crimes that the judge (but not a jury) believed the defendant committed.

That sentencing scheme continued until 2005, when the Supreme Court ruled that mandatory Sentencing Guidelines violated a defendant’s right to a jury trial. The Court decided to remedy the problem by excising (or erasing) the part of the law that made the Guidelines mandatory. Under current law, a federal judge must still consider the Guidelines and must give them due weight, but the judge now has greater discretion to impose a more lenient (or harsher) sentence than the Guidelines recommend.

Financial Penalties

The Federal Sentencing Guidelines recommend the imposition of a fine, in addition to other penalties, upon conviction for most offenses. At the same time, the guidelines recognize the authority of federal judges to waive the fine if payment would interfere with a defendant’s ability to live a self-supporting life. A defendant’s inability to pay a significant fine and the burden of a fine upon a defendant’s ability to support his or her family will often persuade the judge not to impose a fine.

Some judges are more inclined than others to impose fines. Large fines are most often imposed upon defendants who have significant assets, upon defendants who commit financial crimes, and upon defendants who receive probation or short sentences of incarceration. Most judges recognize the futility of imposing large fines upon defendants who cannot pay them, particularly when the defendant will be serving a significant sentence that will deprive the defendant of the ability to earn an income that can be used to pay the fine.

Every person convicted of a federal crime is required to pay a special assessment of $100. The assessment is due immediately after sentencing. The defendant may also be required to pay other costs of the defense, such as witness fees, but those are typically paid prior to trial. Convicted defendants may also be required to pay restitution, although restitution is not typically ordered in drug cases.