We are at a notable moment to contemplate federal sentencing. Fifteen years ago, the Supreme Court issued its landmark decision in United States v. Booker . Just over 25 years ago, Congress passed and the President signed the 1994 Crime Bill. By looking backward and learning from history, we may be able to move forward more productively. One remarkable aspect of Booker is that it still controls federal sentencing a decade and a half later. Congress has chosen to largely leave the system as the Court refashioned it. The world is different today than it was in 2005. Yet the Booker framework – established by two essentially dueling 5-4 majorities of the Supreme Court – endures. In some ways, the most remarkable aspect of Booker at 15 is how unremarkable it appears to contemporary eyes. It is the dog that doesn’t bark – at least not much. In order to truly benefit from the lessons of our criminal justice history, we must go beyond guidelines. Just over 25 years ago, Congress spoke forcefully in the 1994 Crime Bill. It was addressing the concerns of that era with tactics that garnered wide support at the time but are not always viewed favorably today. By stopping to explore the context and consequences of two of the most significant judicial and legislative criminal justice events of the last quarter-century, lessons may emerge. That is a good thing. If we are to make mistakes again (and we will), they should be new ones. Only by understanding the past can we effectively illuminate the path forward.

Antonin Scalia famously observed in his dissent in United States v. Booker that an advisory sentencing guidelines regime would result in a “discordant symphony” where similarly situated offenders would receive ad hoc sentences. As this article demonstrates through a statistical survey, he was right. Federal sentencing practice is in chaos. The fundamental goals of the guidelines—uniformity, proportionality, and certainty—have been undermined. Nonetheless, this does not mean the guidelines should be abandoned or a wholesale redrafting is required. As it turns out, the guidelines continue to be a useful tool, not for determining the ultimate sentence per se , but for identifying similarly situated offenders. Using the total offense level, criminal history category, and other relevant factors discussed in the article, a sentencing judge can identify those individuals within the U.S. Sentencing Commission’s datafiles matching those criteria. From there, a judge can determine various relevant statistics to consider when imposing a sentence: most importantly, the Interquartile Range (IQR). The IQR defines the central range of sentences imposed on similarly situated offenders. Sentencing within the IQR will necessarily promote the guidelines fundamental goals and thus harmonize federal sentencing. But the upshot of this approach also demonstrates that it is the sentencing table, and not the guidelines overall, that are in need of fundamental revision. This article concludes that the Commission should recalibrate the sentencing table downward to match current sentencing practice.

In federal criminal cases, federal law requires that judges consider the sentences other courts have imposed in factually similar matters. Courts and parties, however, face significant challenges in finding applicable sentencing precedents because judges do not typically issue written sentencing opinions, and transcripts of sentencings are not readily available in advanced searchable databases. At the same time, particularly since the Supreme Court’s 2005 decision in United States v. Booker , sentencing precedent has come to play a significant role in federal sentencing proceedings. By way of example, this article discusses recent cases involving defendants with gambling addictions, and recent cases involving college admissions or testing fraud. The article explores the ways the parties in those cases have used sentencing precedent in their advocacy, as well as the ways the courts involved have used sentencing precedent to justify their decisions. Given the important role of sentencing precedent in federal criminal cases, the article finally looks at ways in which the body of sentencing law could be made more readily available to parties and courts alike.

Launched in 2019, the nonpartisan Council on Criminal Justice (CCJ) is an invitational membership organization and think tank that serves as a center of gravity and incubator of policy and leadership for the criminal justice field. Its mission is to advance understanding of the criminal justice policy choices facing the nation and build consensus for solutions that enhance safety and justice for all. CCJ’s emergence reflects broad agreement across the ideological spectrum that the nation’s justice system is deeply flawed and requires equally deep reform. A quarter-century ago, crime was one of the most divisive issues in politics; today, people in Washington and in capitals of red and blue states alike are uniting behind solutions based on facts and evidence. That consensus and commitment to data-driven policymaking is the lifeblood of the Council, and it is embodied by the accomplished and diverse group of leaders and innovators who comprise its members, Directors and Trustees. Through research, task forces, convenings, and special projects, CCJ accelerates momentum for criminal justice reform and drives smart policymaking by generating achievable solutions that are factual, not just fashionable. The Council’s first projects include an ongoing series of papers analyzing the legacy and lessons of the 1994 Crime Bill, which was and remains the most far-reaching and controversial criminal justice legislation in the nation’s history. Also in its first year, CCJ produced a report documenting recent, surprising trends in racial disparities across correctional populations, marking a significant advance in the data and analysis surrounding this critical issue.

This essay, adapted from a speech upon receipt of the 2018 Richard P. Kern Memorial Award from the National Association of Sentencing Commissions, details why sentencing is “dang hard” and explores implications of that reality. The essay argues that the challenges of sentencing not only demand that all jurisdictions have a sentencing commission as an essential permanent agency, but also call for these commissions always to think big and to strive to work deep and wide to study all facets of modern criminal justice systems. The essay also contends that sentencing errors may be quite common and that, even if we manage to get sentencing “right” at the outset, changes in society and in individuals can make even “right” sentences wrong over time. Sensible humility about the likelihood of sentencing errors further suggests, for example: at the rule-making stage , having sentencing laws include sunset provisions and having sentencing commissions review and audit major guidelines and related sentencing practices on a regular basis; at the case-specific stage , having far more robust substantive appellate review of sentences, having more robust mechanisms for parole and judicial reconsideration and clemency, and even developing more creative means to apply and revise different forms of punishment as time passes and new information is gathered.

The article describes the oversight needed to ensure that First Step Act measures are implemented faithfully and that conditions of confinement in BOP facilities are identified and addressed. Humane conditions of confinement are a necessary precondition for a rehabilitative environment. With sufficient oversight, BOP can be held accountable for maintaining safe and humane environments that enable incarcerated populations to make the most of educational, vocational, substance use treatment, and other self-betterment activities. This in turn holds promise for reducing recidivism rates for those who exit BOP.

This article updates the author’s previous survey of guidelines systems, published in this journal in 1999, and reviews what these reforms have and have not accomplished. Sentencing guidelines developed by an independent sentencing commission are currently being used in 17 states, the federal courts, and the District of Columbia. The majority of these systems have also replaced parole release discretion with defined good-time reductions for compliance with prison disciplinary rules and assigned prison programming, and this combination of sentencing and parole reform has been endorsed by the American Bar Association and the American Law Institute. The article summarizes and critiques the many variations among guidelines systems. Some relate to scope -- which crimes and sentencing issues are regulated; others concern design details – how the system actually works. The article identifies five central features of a well-designed guidelines system: a permanent, balanced, independent, and adequately funded sentencing commission; typical-case presumptive sentences and departure criteria; a hybrid sentencing theory that recognizes and harmonizes retributive and crime control purposes; balance between the competing benefits of rules and discretion; and sentence recommendations informed by resource and demographic impact assessments. Balance is also needed in terms of commission composition, and between the influence of the commission, the legislature, and case-level actors. But even if all of these features cannot be adopted, some form of structured sentencing is essential; completely discretionary sentencing is unacceptable. And in the past four decades, no competing structured sentencing model of comparable scope has been adopted or even seriously proposed.

This Issue of FSR explores a range of perspectives on the import and impact of the First Step Act as we approach the first anniversary of President Trump signing it into law. Key themes that emerge from materials in this Issue include the need for effective implementation of the Act and the idea that the Act provides just a start on needed federal criminal justice reforms. The clear takeaway is that there is still much work to do both in advocating for the next pieces of federal criminal justice legislation and in seeking to better administer existing laws. But, as we reach a notable first anniversary for the First Step Act, all should be sure to take time to celebrate a year of real progress, no matter how much further one believes we need to go.

Criminal justice reform has had a firm place in news headlines for more than a decade. Reform has mainly been sought through two approaches: consensus through ballot initiative or legislative compromise. But these modes of reform share a fundamental failure: both often lack a clear articulation of the purpose of criminal sentencing. In other words, “What’s the point?” Without an agreement on the underlying purpose of criminal punishment, neither method of pursuing changes in the criminal justice system can ever produce meaningful, long-standing reform. Our usual way of understanding criminal justice reform is through legislative compromise. The moves from the Anti-Drug Abuse Act of 1986 to the Fair Sentencing Act of 2010 to the First Step Act of 2018 were the result of this slow legislative mechanism. However, the resulting sentencing changes were not due to an effort to study the effects of drug sentencing or to any work toward agreement about what purpose Congress was actually trying to fulfill through drug sentencing. The same problem exists when it comes to consensus reform through ballot initiative – a move that has taken place in many areas of the country—from the passing of recreational marijuana laws in places like Michigan to the attempt to pass sweeping drug sentencing reform through Ohio’s Ballot Issue. When examined, these efforts at reform consensus show that agreement on the need for reform does not show agreement on the purpose of reform. This lack of true, deep consensus can ultimately defeat efforts at large-scale reform through consensus.

The passage of the First Step (Act) represents an ambitious, bipartisan compromise to commence much-needed, genuine federal sentencing reform. However, as its name suggests, it is, in practice, simply one meager stride in what requires a marathon to affect true change. Its improvements fail to achieve the status of “groundbreaking.” This is particularly evident when considering its approach to reduction in sentence of elderly offenders. Since 2013, compassionate release has stood as the exclusive process available for worthy elderly offenders to request early release from prison. While the Act certainly expands access to compassionate release, it fails to do so generously. The Bureau of Prisons (BOP) continues to craft and preserve implementation guidelines that render compassionate release policies ineffective. The Act also revives the Second Chance Act of 2007 by providing a vehicle for early release of certain classes of elderly offenders. While this reauthorization appears appealing, it, too, fails to realize its full potential. This is so because BOP has again apprehended the system by refusing to include good time credits in release eligibility calculations. While the Act is a product of deliberate compromise between lawmakers, consensus concerning its practical application is non-existent.

Under the First Step Act of 2018, federal prisoners may now petition courts directly for reduction of their sentences, and judges may grant such requests if “extraordinary and compelling reasons” support reduction. Judges are also in the process of imposing reduced sentences in thousands of cases where the First Step Act has retroactively reduced statutory penalties. Not only does the First Step Act offer prisoners new opportunities for sentence reduction, but the law also may change how federal judges understand the impact of their sentencing decisions. Before now, in federal cases, judges rarely had the chance to take a second look at the prison sentences they (or their colleagues) imposed. Encounters between judges and the people they sentenced typically occurred only if a person violated the terms of supervised release after leaving prison. Now, judges can reassess sentence length while someone is still in prison and evaluate whether a reduction in the sentence is warranted. This newfound power allows judges to see their sentencing decisions in a new light and may influence how they conceive of the prison time they impose in future cases.

The passage of the First Step Act by the federal government one year ago marked a significant change in the way states approached the issue of criminal justice reform. Some states, like Florida, have been fighting for years to pass reforms, but after the passage of the First Step Act, the momentum for reform helped carry those endeavors through the legislature and to the Governor’s desk. Other more traditionally conservative states, like North Carolina and Arkansas, have now been introducing legislation to address problems within their states’ criminal justice systems by moving towards workable reforms modeled after the federal legislation. The First Step Act provided political cover for right-of-center, state-level lawmakers to address critical issues facing the criminal justice system. Here we discuss the history of the First Step Act and more broadly the trajectory of past criminal justice reforms. After establishing the federal landscape, we aimed to outline the current positions of the states who are engaging in criminal justice reform and how movement on the federal level paved the way for successful legislative outcomes. In our final analysis, we articulate the need to fully implement reforms and provide evidence that even the best of bills, if left unfunded or otherwise incomplete, will fail.