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Fifteen years ago, the federal justice systemunderwent a revolutionary but massively flawedrevision of its approach to sentencing criminaldefendants. Driven by concerns of disparatetreatment and undue leniency in punishment,Congress created an independent agency, theU.S. Sentencing Commission, to formulate a new sentencing regime that would drastically limit the discretion of federal judges. The result-ing body of law, known as the SentencingGuidelines, has both perverted constitutionalprinciples and produced grave injustices.In promulgating detailed sentencing rulesthat bind federal courts and individual parties,the commission is making law through anunconstitutional delegation of legislativeauthority. This practice not only violates theconstitutional principle of separation of powers,but also severs the typical lines of politicalaccountability in American democracy. More-over, the Guidelines themselves violate a numberof constitutional rights by, among other things,punishing defendants for uncharged or acquit-ted conduct.Beyond constitutional infirmities, theGuidelines have proven to be unfair and unwork-able in practice. Justice in sentencing requires anindividualized assessment of the offender andthe offense, leading to a moral judgmentimposed by judges with skill, experience, and wis-dom. Those judgments cannot be made by a dis-tant bureaucracy pursuant to abstract rules thatdisregard important context. Yet that is precisely what occurs in today’s federal courts: Individualsare sentenced under the commission’s micro-managed rules, which expressly forbid judgesfrom considering personal characteristics likethe defendant’s age and family responsibilities.That rigidity in sentencing has lead to intention-al deception among judges, prosecutors, anddefense attorneys attempting to avoid the pre-scribed consequences of the Guidelines. Suchdishonesty is flatly inconsistent with the com-mission’s stated goal of “truth in sentencing.”
 Misguided Guidelines
 A Critique of Federal Sentencing 
by Erik Luna
_____________________________________________________________________________________________________
 Erik Luna, formerly a state prosecutor and Fulbright scholar on sentencing alternatives, is associate professor of lawat the University of Utah.
Executive Summary 
No. 458November 1, 2002
 
Introduction andBackground
November 1, 2002, marks the 15th anniver-sary of the U.S. Sentencing Guidelines. Butthere will be no celebrations, parades, or otherfestivities in honor of the punishment schemecreated by Congress and the U.S. SentencingCommission. Instead, the day will pass likemost others during the intervening decadeand a half—with scores of federal defendantssentenced under a convoluted, hypertechnical,and mechanical system that saps moral judg-ment from the process of punishment. Ratherthan fanfare, the Guidelines’ anniversary willlikely be met with a level of ridicule reservedfor “the most disliked sentencing reform ini-tiative in the United States in this century.”
1
The Guidelines refer to the legal frame-work of rules for sentencing convicted federaloffenders. After a defendant has been investi-gated by law enforcement, indicted by grand jury, and found guilty at trial (or through a plea bargain), the trial judge must determinean appropriate punishment under theGuidelines. Depending on the crime of con- viction and various factors related to theoffender and the offense, a federal judge willtypically sentence the convicted defendant to a term of imprisonment and possibly a criminalfine. Of course, the federal system is dwarfedby the combined criminal justice systems of the individual states, the primary crime fight-ers in American society. Of the nearly 2 millioninmates in the United States, less than 10 per-cent are presently serving federal sentences.
2
Nonetheless, the federal system remainsinfluential in the national debate on crimeand punishment, presenting a prominentmodel for other jurisdictions in their penolog-ical experimentation. For better or worse, fed-eral law enforcement continues to dominatecertain categories of crime—such as drugoffenses, immigration violations, and white-collar crime—often to the point of occupyingthe field. This tendency, particularly for nar-cotics offenses,
3
has only increased since theenactment of the Sentencing Guidelines,resulting in a federal prison population thathas quadrupled in just a decade and a half.
4
In1999, for example, more than 50,000 offend-ers were sentenced pursuant to the Guidelines,44 percent of whom had been convicted of drug offenses.
5
Some commentators have tried to distin-guish the Guidelines from another federal sen-tencing phenomenon: mandatory minimumsentences.
6
Those punishment schemes set anabsolute floor for sentencing particular offend-ers. In most cases, for instance, a conviction forpossessing five grams of crack cocaine results inan automatic five-year sentence.
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In a 1991report to Congress, the U.S. SentencingCommission blasted mandatory minimums as,among other things, producing unwarranteddisparities among offenders and transferringpower from judges to prosecutors.
8
The greatirony, however, is that those same charges couldbe leveled against the commission’s own workproduct.
9
Like mandatory minimums, theSentencing Guidelines set strict parameters forpunishment (including a lower limit), absentsome basis to depart from the sentencing range.When Congress enacts a mandatory mini-mum, the relevant sentencing range shiftsupward to meet the legislative mandate. Boththe Guidelines and statutory minimums aremanifestations of the same trend—mandatory or “determinate” sentencing. It is almostOrwellian doublespeak to call the presentregime
 guidelines,
given that judges must fol-low these sentencing rules or face reversal by appellate courts. In fact, the commission haseven made the “Freudian slip”
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of calling theGuidelines “mandatory.”
11
Both mandatory minimums and the guidelines attempt topurge sentencing discretion in federal trialcourts, all but precluding judges from depart-ing from the strictures of determinate punish-ment. Far from being alternatives, these twoschemes feed off each other in curbing judicialdiscretion. For that reason, both the SentencingGuidelines and mandatory minimums will becollectively referred to in this study as the“Guidelines.” Although the Guidelines are frowned uponfrom all corners of the criminal justice system,
2
It is almostOrwellian dou-blespeak to callthe presentregime
 guidelines,
given that judgesmust follow thesesentencing rulesor face reversal by appellate courts.
 
the federal judiciary has been particularly adamant in its opposition to the current sen-tencing regime. Federal judges have describedthe Guidelines as “a dismal failure,” “a farce,”and “out of whack;”
12
“a dark, sinister, andcynical crime management program” with “a certain Kafkaesque aura about it;”
13
and “thegreatest travesty of justice in our legal systemin this century.”
14
In 1990, the Federal CourtsStudy Committee received testimony from270 witnesses—including judges, prosecutors,defense attorneys, probation officers, and fed-eral officials—and only four people expressedsupport for the Guidelines: the U.S. Attorney General and three members of the U.S.Sentencing Commission.
15
Surveys of the judiciary have confirmed widespread disap-proval of the Guidelines: A 1992 poll foundthat more than half of all federal judges believethat the current system should be completely eliminated, while a 1997 survey concludedthat more than two-thirds of federal judges view the Guidelines as unnecessary.
16
With 15 years of overwhelmingly negativereaction, it is time to reconsider theGuidelines and the consequences for federalcriminal justice. This paper will begin with a brief history of federal sentencing, followedby a description of the impetus for reformthat culminated in the current regime. Thepaper will then critique the present approachto federal sentencing, delineating the major vices and flaws of the commission and itsGuidelines. The paper will conclude with a call to scrap the Guidelines and start anew.
 Judge as Social Worker:Sentencing before theGuidelines
Like the proverbial road to hell, the pathto the Guidelines was paved with good inten-tions. Federal sentencing was indeterminatein nature throughout much of the 20th cen-tury, allegedly pursuant to the rehabilitativeideal fostered by American prison reform-ers.
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The criminal sanction was to be tai-lored to the offender with the ultimate goalof curing his “disease” and thereby prevent-ing future misconduct. Various officialsplayed a role in this medical model: Federalprobation officers collected informationabout the defendant’s social history and pastcriminal record, providing a type of “progno-sis” on his potential for reform and eventualreintegration into society. Parole authoritieswould, in turn, determine the actual releasedate based on their assessment of the offend-er’s progress toward law-abiding conduct.Primary control over sentencing, however,was vested in the district court. With few exceptions, Congress provided only maxi-mum terms of incarceration for federalcrimes, allowing trial judges unbounded dis-cretion to sentence offenders short of theupper limit—including no prison time at all(probation). Given that an inmate wouldserve at least one-third, but typically notmore than two-thirds of the nominal sen-tence, the district court was supposed tomake a clinical judgment of sorts that anappropriately discounted term of imprison-ment would be sufficient to reform theoffender. Under a favorable interpretation,then, federal trial judges were part socialworker, part soothsayer—gauging the lengthof sentence based on an unguided evaluationof the necessary conditions for rehabilitationand indoctrination of pro-social behavior. Tobe sure, this regime suffered from several seri-ous defects. Sentencing judges were dictator-ial in practice: The district court was notrequired to provide reasons for any particularpunishment, and so long as the term waswithin the broad statutory boundaries, thesentence was not subject to review on appeal. As a result, the federal system lacked any mechanism that might ensure a degree of intercase equity in punishment. For instance,a study chaired by Judge Marvin Frankel dis-tributed identical files based on actual casesto 50 district court judges, asking each judgeto sentence the hypothetical defendants.
18
The study found an “absence of consensus isthe norm,” with one case ranging from a three-year sentence by the most lenient judgeto 20 years in prison and a $65,000 fine by 
3
Like the prover-bial road to hell,the path to theGuidelines waspaved with goodintentions.
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