Daniel J. Freed

Editor's Observations: Reforming the Commission: Internal Rules and Revised Guidelines

Beginning with this Issue and continuing over the next several months, FSR will examine a range of proposed reforms: in the Sentencing Commissions internal rules of procedure; in its guidelines and policy statements for the courts; and in its relation ship with the Congress. This Issue describes sentencing initiatives and studies that touch upon each of these areas. Our articles focus on: (1) the Commissions Proposed Rules of Practice and Procedure; (2) the Federal Judicial Centers survey of judicial attitudes toward the guidelines; (3) the 104th Congresss treatment of mandatory penalties; and (4) proposals to reform the Acceptance of Responsibility adjustment. Two themes recur throughout these pieces: (i) continuing frustration of the Commissions persistent efforts since 1991 to persuade Congress to repeal mandatory minimum penalties and (ii) the percep tion among federal judges, probation officers and others that the massive transfer of discretion and

Editors' Observations: Perspectives on Disparity in Guideline Research

Four years after the guidelines were first promul gated, and three years after U.S. v. Mistretta, research from the Commission and in scholarly journals is painting a clearer picture of the system. This issue of FSR includes research on national sentencing patterns, examinations in specific circuits and districts, and studies of particular offenses. The writers seek answers to three basic questions:

Varied Approaches to Teaching Sentencing

Background: Inflexibility, Severity, Disparity In the mid-1980s, Congress prescribed the development of guidelines to reduce unwar ranted disparity in federal sentencing. In the years that followed, the reform seemed to push the system to the opposite wall, and complaints mounted against guideline inflexibil ity, unwarranted uniformity, and excessive severity of the Sentencing Commissions early guidelines and policies. The overriding lament was that arithmetical computations affording too little room for reasonable variations had replaced individualized discretion in the sentencing of convicted offenders. These complaints are heard a bit less often today because the rigidity of the system has eased in places. Since 1989 when the Supreme Court decided Mistretta, Commission statistics show that the rate at which federal sentences have been imposed within prescribed guideline ranges dropped from 83.4% in 1990 to 69.6% by 1996. The downward depar ture rate, covering the combination of substantial assistance and judicial departures, doubled from 14.4% to 29.5%. The upward departure rate, i.e. penalties set above the guideline range, fell by more than half, from 2.3% to .9%. During the period 1991-1996, the rate of conviction by trial rather than plea dropped from 14.6% to 8.3%. And in 1996, 77% of all sentences were imposed either within the bottom quarter of the guideline range (43.8%) or below the range (33.2%).2 These data suggest that a measure of flexibility has been returning to the system, that at least some harshness is being tempered by downward departures, and that more prosecutors and defense attorneys are finding it possible to reach accommodations that make guilty pleas more attractive than trials to both sides and to the court. But these changes seem to be taking place very unevenly. The data on differences in sentences and sentence-related practices across districts and circuits, as well as anecdotal information about intra-district differences, suggest that the system remains rife with disparity. Average sentences and sentence ranges for major crimes in individual districts vary markedly throughout the federal system.3 The reasons for this disparity are unclear, but there are hints. For example, wide discrepancies prevail in departure practice among districts and circuits.4 In the First Circuit, only 51% of sentences in New Hampshire are within the guideline range, while Rhode Islands figure is 83.3%. In the Second Circuit, substantial assistance departure rates vary from 10.8% in Connecticut to 28.8% in the Northern District of New York. In the Third Circuit, sentences are within the range in Delaware 83.9% of the time, compared to 47.6% in the Eastern District of Pennsylvania. The Fourth Circuit has 53.3% in-range sentences in the Western District of North Carolina but 89.8% in Eastern Virginia. The 5th Circuit contains Northern Mississippi (62.3% within guidelines) and Eastern Texas (83.1%). The Sixth Circuit shows a substantial assistance departure rate of 9.9% in Western Kentucky and 37.8% in the neighboring Southern District of Ohio. Guideline range sentences in the 7th Circuit run from 62.1% in the Central District of Illinois to 82.4% next door in the Southern District of Illinois. The 8th Circuits Western

Editors' Observations: The Intertwined Problems of Immigration and Sentencing

crimes, whether they be in this country legally or illegally. In recent years, Congress and the states have responded to public concern about immigrant crime with a series of legislative programs and enforcement projects. The Anti-Terrorism and Effective Death Penalty Act (AEDPA), which became law on April 24, 1996, and the immigration bills currently pending before Congress, are only the latest examples of these undertakings. Given the complexity of the issues, and the passions stirred by them, one may reasonably question the Congresss ability to address them in a coherent and rational manner in an election year. This special Issue of FSR seeks to shine some light on this rapidly changing field of law?a field that has too long been neglected by most mainstream federal practitioners. The observations of the Issues participants?prosecutors, academics, and defense attorneys?suggest that this shadowy area of the law deserves, at minimum, detailed attention and considerable reform.

Editors' Observations: Contrasting Approaches toward Guidelines and Departures in Six Circuits

Four years after Mistretta, one might have expected to find federal sentencing law beginning to stabilize, and circuit courts to be ironing out their differences on major recurring issues. To test those expectations, we invited several observers familiar with the guidelines to examine 1992-93 appellate cases and comment on the highlights. This Issue sets forth accounts from the 1st 2d, 3rd, 7th, 9th and DC. circuits.