How does a judge figure out the length of a sentence? In the federal courts, the judges use the US States Sentencing Guidelines ("Guidelines" or "USSG"). They work like a math formula that calculates a prison term based upon several factors:
- Seriousness of the crime
- The defendant's criminal history
- Aggravating and mitigating factors
Some states follow the federal Guidelines, and some states have their own version. If you're dealing with a criminal matter in a state court, be sure to check that state's criminal laws to see if any sentencing guidelines apply.
Seriousness of Crime
Figuring a sentence under the Guidelines starts with the base level. Each type of crime is assigned a base level in USSG Chapter 2. Basically, the more serious the crime, the higher the base level. For example, the crime of trespass has a base level of 4, while first-degree murder has the highest base level, 43.
The base level my be increased or decreased depending on "specific offense characteristics" of the crime. These are the crime's particular facts and circumstances. They're different for each crime. They're listed along with the base level in Chapter 2. For example, robbery has a base offense level of 20. If you displayed a firearm during the robbery, the base level increases 25. If you fired the gun during the robbery, the base level goes to 27.
The base level may go up or down because of adjustments, which are set out in USSG Chapter 3. There are:
- Victim-related adjustments. For example, the base level will go up if the victim of the crime was young and had a mental disorder, or if the victim was restrained during the crime
- Adjustments based on your role in the crime. If you played a major role in the crime - you were the leader - the base level goes up. If you had a minor role, it goes down
- Obstruction of justice adjustments. If you obstructed or impeded justice, such as by destroying evidence or threatening witnesses, the base level goes up
- Acceptance of responsibility adjustments. Your base level may go down if, in the judge's opinion, you accept responsibility for the crime. The judge takes into account whether you truthfully admitted your role in the crime; whether you made restitution before you were convicted, and; whether you pled guilty
Once the base level is determined, the next step in the Guidelines calculation is to look at the defendant's criminal history. In Chapter 4 of the Guidelines, a defendant is placed into one of the six "categories" based on his criminal history. Category I is for defendants with little or no criminal record. This includes many first-time offenders. Category VI is the most serious category and includes defendants with extensive criminal records.
The Guideline Range: How Long's the Sentence?
Once base level and criminal history are fixed, it's time to figure the final offense level. This is a simple calculation of taking the base offense level and then adding or subtracting from it any specific offense characteristics and adjustments that apply. You then look at the Sentencing Table for the point where the final offense level and the criminal history category intersect. This will give the sentencing range: The minimum and maximum number of months in jail you may receive.
For example, the guideline range for a defendant with a criminal history category of I and a final offense level of 20 is 33 to 41 months. Generally, it's up to the judge to determine exactly how many months between minimum and maximum a defendant will spend in jail. The judge has to explain the sentence in his written sentencing order.
After the range is determined, the actual sentence may be increased or decreased once again, depending on if there are aggravating or mitigating circumstances. This is called "departure" from the Guidelines. Aggravating circumstances make the crime more serious and usually lead to a harsher sentence. Mitigating factors may lead to a lighter sentence. They're listed in Chapter 5, but good examples include:
- Using a gun or killing a victim during the crime. These are aggravating factors
- Giving the government substantial help with a criminal investigation or committing crime while suffering from some mental incapacity. These are mitigating factors
Do They Have to Be Followed?
The Guidelines were created in the 1960's, and for decades they were mandatory. Judges had to impose sentences based on the Guideline's formulas. In a 2005 case, the US Supreme Court ruled that the mandatory nature of the Guidelines violated a defendant's right to a jury trial under the Sixth Amendment. Now, the Guidelines are advisory only. That means that federal judges have to look at them and do the calculations, but they're not required to impose Guidelines-based sentence. The judge still must explain her reasons for a sentence.
As a practical matter, judges typically follow the sentences suggested by the Guidelines.
Questions for Your Attorney
- Will the judge consider my family and work background as mitigating factors when it comes to my sentence?
- Will my juvenile record be considered as part of my criminal history under the Guidelines?
- The government has offered me a plea agreement with a specific sentence. If I take the deal, can the judge give me a harsher sentence based on the Guidelines?