Published on: Tuesday, December 19, 2017

In the Sentencing Reform Act of 1984, Congress created the United States Sentencing Commission as an independent body in the Judicial Branch with power to promulgate binding sentencing guidelines establishing a range of determinate sentences for federal offenses.  In Mistretta v. United States, 488 U.S. 361 (1989), the Supreme Court upheld the constitutionality of the Commission’s resulting Sentencing Guidelines against claims by a federal defendant (1) that the Commission was constituted in violation of the separation-of-powers principle, and (2) that Congress had delegated excessive authority to the Commission to structure the Guidelines. 

A recent Propublica article titled Suspect Evidence Informed a Momentous Supreme Court Decision On Criminal Sentencing (available here) claims that when the Court decided Mistretta it relied on evidence that “was flimsy and even flat-out wrong.”  Specifically, Mistretta “cited a single congressional report in concluding that there were disturbing and unacceptable sentencing disparities that needed to be addressed. That single report [S. Rep. No. 98-255 (1983), U.S. Code Cong. & Admin. News 1984, p. 3182 (Report)], in turn, was based primarily on two studies conducted in the early 1970s, both deeply flawed,” according to Propublica. 

One of the studies involved The Second Circuit Sentencing Study: A Report to the Judges of the Second Circuit (1974) (available here), which reported the results of a sentencing experiment conducted by fifty district judges of the Second Circuit.   Judges were given twenty identical files drawn from actual cases and asked to indicate the sentence they would impose.  The judges differed widely in their sentences, e.g., sentences in a typical tax fraud cases varied from three to twenty years.  Propublica’s criticism is that the results ignored the fact that the vast majority of federal sentences prior to 1984 were the result of plea bargains between prosecutors and defendants—“deals that were subject to a judge’s approval but that were not his or her handiwork.” 

The second study, Whitney Seymour’s 1972 Sentencing Study for the Southern District of New York, 45 N.Y.S.B.J. 163, reprinted in 119 Cong. Rec. 6060 (1963), performed for the Department of Justice, compared average federal sentences in federal district courts for identical crimes.  This study concluded prison terms varied by years depending upon where the judge presided.  For example, the range in average sentences for forgery ran from thirty months in the Third Circuit to 82 months in the District of Columbia.   Propublica examines the data in the study and concludes it was “riddled with sample size errors that should have rendered much of the data unusable,” as well as mistakes.

Professor Berman at the here acknowledges that Propublica’s article does a “nice job of spotlighting problems with the disparity evidence cited by Congress in the legislative history of the Sentencing Reform Act.”  But Berman argues that Mistretta “did not turn at all on whether researches had adequately proven pre-guideline sentencing disparity or whether Congress relied on ‘flimsy’ evidence when enacting the Sentencing Reform Act.  Constitutional issues, not empirical ones, were the focal point of Mistretta.”  Moreover, Professor Berman contends the notion that “truly justified concerns about sentencing disparity” did not exist before the SRA “cannot withstand serious scrutiny.”

The Training Division provides materials to help you argue for the best sentence possible for your client here.