The Guidelines determine sentences based primarily on two factors: 1.the conduct associated with the offense (the offense conduct, which produces the offense level); and 2.the defendant's criminal history (the criminal history category).
The Sentencing Table in the Guidelines Manual shows the relationship between these two factors; for each pairing of offense level and criminal history category, the Table specifies a sentencing range, in months, within which the court may sentence a defendant. For example, for a defendant convicted on an offense with a total offense level of 22 and a criminal history category of I, the Guidelines recommend a sentence of 41--51 months, considering the year of the offense to be the same as the year of the guidelines. If, however, a person with an extensive criminal history (Category VI) committed the same offense in the same manner in the same modern timeline and not during the older guideline periods, the Guidelines would recommend a sentence of 84--105 months.
The prosecutor's power to extract guilty pleas, previously held in check by judges, is now counterbalanced only by the diligence of the defense attorney."
Judge Bennett quotes William J. Stuntz, who claims that "when necessary, the litigants simply bargain about what facts will (and won't) form the basis for sentencing. It seems to be an iron rule: guidelines sentencing empowers prosecutors, even where the guidelines' authors try to fight that tendency...In short, plea bargains outside the law's shadow depend on prosecutors' ability to make credible threats of severe post-trial sentences. Sentencing guidelines make it easy to issue those threats."
The federal guilty plea rate has risen from 83% in 1983 to 96% in 2009, a rise attributed largely to the Sentencing Guidelines.
"I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges. All of them pled guilty. Eighteen were "pill smurfers," as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions. Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth; there were no hoards of cash, guns or counter-surveillance equipment. Yet all of them faced mandatory minimum sentences of sixty or 120 months."
"One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for "good time'," Judge Bennett writes.
He continues: "Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked--and glad--to see me, and it's important to them that people outside prison care about their progress. For far too many, I am their only visitor."
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