Sentencing the federal court is a mess.


1984 was a bad year for the federal criminal justice system. The U.S. Senate, by a vote of 83 to 3, and House of Representatives, by a vote 316 to 91, enacted the Sentencing Reform Act of 1984 (SRA). The congressional intent was to eliminate disparity in sentencing among federal courts by limiting the discretion of the sentencing judge to set the term of imprisonment.


Congressional Response to Federal Sentencing Disparities


It was universally believed that sentencing disparities, could be attributed to the almost impossible task assigned to federal judges that they impose sentences on individual offenders, with the goal of trying to make the punishment fit in each offender and the specific facts of the case, while also attempting to have consistency among similarly situation defendants across the federal system.


Unlimited Discretion Produced Horrible Inequities and Injustices


Unlimited discretion in sentencing produces inequities and, sometimes, horrible injustices. That’s because unlimited discretion mirrors the biases and prejudices of each judge. Some judges hate pedophiles while others fraudsters. This created an untenable situation, per-1984 sentencing guidelines, where in one court pedophiles would receive 20 years and bank robbers would receive 5 years, while in another court a bank robber would receive 20 years and a pedophile 5 years.  All the offenders would be similarly situated, but the same was not true of the biases of the judges who sentenced them.


Federal Sentencing Guidelines Emerge as Solution


It was thought that the Sentencing Guidelines, which emerged out of the SRA, would eliminate these kinds of disparities—a complex numerical equation that would basically connect an offender’s criminal history and the level of his offense into a just result.


That hasn’t happened. And it may never happen. The Guidelines have their own inherent perversity.


For example,  under the Guidelines, a defendant who pleads guilty will almost always receive a 2-level reduction of sentence for “acceptance of responsibility” while an innocent defendant who pleads not guilty but is found guilty will not receive the reduction. A defendant who elects to testify at a trial in order to tell his side of the story can be penalized with a 2-level enhancement for obstruction of justice if the judge believes the defendant’s side of the story was a lie.  Both examples have the effect of discouraging trials and, in some cases, defendants pleading guilty solely out of fear of higher possible sentence.


The Guidelines, however, also produced unreasonable, harsh sentences and in many cases failed to adequately consider the nature of the offender and other factors that the guidelines could not, or did not, foresee.  Lawyers hated them, judges hated them.  Eventually, the U.S. Supreme Court addressed the Guidelines and, after a series of landmark decisions, made them advisory, to be consulted and then departed from with stated reasons from the court.


Tough on Crime Agenda Permeates Guidelines


The problem with the SRA is that it was part of a Comprehensive Control Act whose purpose was to address crime in America, especially the violent crime associated with cocaine and other drug distributions. It was believed that federal sentences under the SRA would not only be uniform but certain. The offender would know precisely what his or her sentence would be and why it was imposed.  It was hoped this certainty would reduce crime.


Truth in Sentencing, No Parole


To achieve this fundamental objective, federal parole was eliminated for approximately 2,000 criminal offenses in place at the time. Federal parole had existed since 1910, but effective November 1, 1987 it was eliminated for all federal inmates except for those who were sentenced before the November 1 cutoff date.


The only other offenders now eligible for federal parole are military prisoners and individuals under witness protection.


Federal Inmates Serve 87 Percent of Sentence


During the federal parole era, on average, prisoners served 58 percent of their maximum sentence before being released on parole. Today federal prisoners serve 87 percent of their maximum sentence. That’s because 18 U.S.C.§ 3624(b) allows federal inmates serving sentences of more than one year to receive only 47 days of goodtime credit beginning at the end of their first year of incarceration.


Mandatory Supervised Release


Not only did the SRA eliminate federal parole, it replaced it with a beast known as “supervised release.”


This is a unique, though quite harsh, system of post-conviction monitoring overseen by federal courts with the assistance of federal probation officers. While some supervised releases are at the discretion of the sentencing judge, most are mandated by law. With the removal of parole from the federal system, supervised release was created, supposedly, to help an offender make a successful transition from prison life to community life.  It reality it looks like a term of probation stacked on top of a prison sentence, returning the defendant to prison for a new term of incarceration for violating the terms of release.


In terms of conditions, supervised release is more akin to probation, but its purposes are markedly distinct. Probation is imposed in lieu of incarceration while supervised release concerns itself only with what the U.S. Sentencing Guidelines refer to as “facilitating the reintegration of a defendant into the community.”


Federal law, 18 U.S.C. § 3583, requires supervised release in many cases, especially those of a violent or sexual nature. § 3583(a) authorizes a federal judge to order supervised release in all felony and Class A misdemeanor cases.  § 3583(b), however, stipulates that supervised release shall not be imposed for “petty offenses,” those punishable by less than six months of imprisonment.


Conditions of Mandatory Supervised Release


A sentencing judge must impose conditions when he or she orders supervised release. Some conditions are mandated by statute, 18 U.S.C. § 3583(d). A judge has the discretion to impose any other conditions if the following criteria are met:


  • The condition is “a discretionary condition of probation set forth in § 3563;
  • The judge must consider the condition appropriate so long as the condition is “reasonably related” to the factors set forth in § 3553(a)(1) and (a)(2)(B-D);
  • The condition involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in § 3553(a)(2)(B-D); and
  • The condition is consistent with any pertinent policy statement issued by the Commission under 28 U.S.C. § 941(a).


The Sentencing Guidelines Manual also sets forth required and suggestions conditions. Section 5D1.3 (a) lists the mandatory conditions that mirror the § 3583(d) conditions. The Guidelines list 15 “standard” conditions that mostly track the discretionary conditions set forth in § 3563(b), and “special” conditions listed in § 5D1.3 (d).


Section 5D1.3 (e) list additional “special” conditions the judge may feel are appropriate on a case-by-case basis.


In effect, supervised release is a prison sentence that is served in the free community instead of a penal facility.


Special Conditions, Sentencing Abuses


And this takes us back to the terrible abuses of discretion that gave us the SRA with all its ensuing harsh mandatory minimums, unreasonable sentences and conditions of mandatory release.


Judges simply have too much discretion in imposing the so-called “special” conditions which, again, more reflects the judge’s personal biases than any legitimate penological objective.


This was illustrated in the December 17, 2015 decision by the Fifth Circuit Court of Appeals in United States v. Caravayo.


In 2005, James Allen Caravayo pleaded guilty to possession of child pornography. A sentence of 92 months was imposed followed by 10 years of supervised release. Caravayo completed his 92 month sentence in November 2012 and began serving his supervised release.


In May 2014, the government filed a motion to revoke Caravayo’s supervised release. The motion alleged a series of violations, all of which were dropped except of a Texas misdemeanor conviction for Failure to Identify. Caravayo admitted the conviction. The judge revoked Caravayo’s supervised release, ordered him to serve 90 days of imprisonment, and re-imposed the balance of his original 10-year supervised release with all its conditions.


Special Condition: Dating Women with Children


One of those conditions prohibited Caravayo from dating any “women/men who have children under the age of eighteen.” At the revocation hearing, Caravayo’s attorney objected to this condition, arguing that it violated Caravayo’s First Amendment right to free association.


Defense counsel correctly argued that the court could impose a “more narrowly tailored” condition that would achieve the same purpose, including one of his other conditions that prohibited unsupervised contact with minors.


The sentencing judge refused to budge. Defense counsel appealed to the Fifth Circuit.


Discretionary Condition Must be Reasonably Related to 3553 Factors


The appeals court began its legal analysis with this observation:


“Under § 3583(d), a discretionary condition must be ‘reasonably related’ to one of the four factors under § 3553(a): (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the deterrence of criminal conduct; (3) the protection of the public  from further crimes of the defendant; and (4) the provisions of needed education or vocational training, medical care, or other correctional treatment to the defendant … The condition must also impose no greater deprivation of liberty than it reasonably necessary to advance deterrence, protect the public from the defendant, or advance the defendant’s correctional needs.”


The appeals court found that the special condition barring Caravayo from engaging in a relationship with another adult who has children violated his First Amendment right to “enter into and maintain certain intimate relationships against undue intrusion by the State.”


No Factual Findings to Support Condition


Finding that the sentencing judge had made no “factual findings” that this condition was reasonably related to any of the § 3553(a) factors, it vacated Caravayo’s sentence and remanded the case back to the district court for resentencing.


The Caravayo case reflects the cancer of sentencing discretion. Federal law and the Sentencing Guidelines list mandatory conditions and suggest others. But it is the discretion federal judges enjoy in imposing “special conditions” that create absurd, and patently unconstitutional, conditions like the one imposed on Caravayo.


At the end of the day, we are left with two options in federal sentencing: discretion or formulas.  Neither is ideal on its own.


Discretion is a great thing in the hands of the right judge, but a terrible weapon in the hands of a judge who cannot separate his or her biases from legal or constitutional restraints.


Formulas can be so severe and too inflexible as to beg for discretion with all its risky warts.


Abolish the Sentencing Guidelines


This is, perhaps, why were are now faced with sentencing guidelines that are advisory, rather than mandatory, and allowed variances from those guidelines, if supported by statements or reasons from the court.  Federal Sentencing has become a hodgepodge of formulas and rules that aggravate all involved.  It is time to scrap the guidelines in their entirety and allow lawyers and judges to come to a reasonable sentence through the adversarial process.