Dr. McCriminal or: How I Learned to Stop Worrying and Love the Guidelines

The Federal Sentencing Guidelines are a bit of a strange beast in the realm of criminal law. Created primarily to create judicial uniformity in sentencing, the guidelines are a macabre concoction of equal parts IRS Code, treasure hunt, and arithmetic with a twist of the absurd that don’t actually seem to do much in the way in making sentencing more uniform. If actual practice is anything like the past few Sentencing class periods, it would seem that the guidelines cause more confusion and disparity than uniformity. What the guidelines do actually do is take some of the discretion in sentencing from judges and gives it to prosecutors, in addition to creating room for advocacy in surprising and fun areas like whether an official victim existed or the crime itself was against an official. It’s a six point swing!

Some Background
For those of you not familiar with the guidelines, the process of sentencing for federal crimes is not at all similar to the state method. In state courts, either the judge or the jury sets the sentence for the crime committed after hearing evidence related to sentencing matters (this comes after conviction for the actual offense). In federal court, the Sentencing Commission, in its manifold wisdom, thought that it would be more uniform and efficient if lawyers had to do math (every lawyer’s favorite subject!) to figure out what the sentence on a particular offense is. Each offense starts out with a base point score. You add points for various things related to the offense. For example, aggravated assault has a base score of 14. Add 2 points if the assault involved more than “minimal planning.” Add 3 points if the assault caused bodily injury, 5 if serious bodily injury, or 7 for permanent or life-threatening bodily injury. In case you can’t figure out whether the injury was serious or permanent/life-threatening, you can just add 6 points and you’re okay. As you can see, it can get complex quickly… And that’s only the first little set of things you have to figure out! If there are multiple counts to the offense, you have to group like offenses together and figure out if multiple groups are close enough in score to increase your offense score. Next you calculate the defendant’s criminal history category (anywhere from I to VI, depending on the length of the defendant’s rap sheet), cross reference that with the offense score, and presto! You have your sentencing range. But wait, there’s more! If the person is a career offender or a terrorist, toss all that hard work you just completed out the window and come up with a new, higher number! Crystal clear, right?

Coming to Terms With the System
On the first day of this unit, Prof. spoke about the fact that he always gets excited to teach about the guidelines, even though he doesn’t like them. After spending some quality time with them, I think I can see why. It’s a convoluted mess of a system that doesn’t always seem to be based in logic. Why is it that “more than minimal planning” is two points and bodily injury is three? Why is it that an assault with a victim that’s an official can be as much as six points? Those are just some examples of questions that crop up, and that’s not even touching the drug-related guidelines which are even more arbitrary (this is where the infamous 100:1 crack:powder cocaine ratio comes into play).

Yet, there’s a morbid elegance to calculating the guidelines. It’s like watching one of those jewel heist movies where the guy does flips and twists to get through the room with the moving lasers. He makes it all look simple and fluid, but the guy knows one mistake could cost him an appendage. It’s the same with the guidelines; knowledge and preparation are of supreme importance. Try and wing it and you may end up falling on your face and getting your client slapped with a much larger sentence than you might have originally thought. That’s where the excitement comes into play; at least, that’s where it does for me. As a prosecutor, knowing the guidelines inside and out may be the ticket to maximizing the sentence on a defendant who really deserves to go away for a long, long time. There’s also discretion that the prosecutor has; which offense to charge with, whether to add points for related circumstances and conduct, etc. It puts quite a bit of power into the hands of the prosecutor. It also creates a lot of room for advocacy on specific points; if the prosecutor isn’t prepared to advocate his/her position, the sentence could be significantly cut. Conversely, a defense attorney working in the federal system needs to know the guidelines well in order to effectively advise the defendant of the potential sentence that may be coming. Failure could produce pretty disastrous results.

Surprisingly enough, I had fun working through the exercises. I think that something in the complexity appealed to the backwards way my brain works. Instead of seeing a convoluted maze of traps and pitfalls, I saw it as somewhat of a treasure hunt. How can I maximize the sentence of Tony “The Toyota” McCriminal inside the system? The confusion became an opportunity that provided some thrilling moments. So, in my own way, I captured a bit of excitement regarding this convoluted system for myself.

Arbitrary, potentially unjust, and sometimes downright confusing, there’s not a lot going for the guidelines. But, while they’re still in place, we have to work within them, which means we must understand them. Even if they are only guidelines, and not actual rules.

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4 Responses to “Dr. McCriminal or: How I Learned to Stop Worrying and Love the Guidelines”


  1. 1 Justin January 22, 2010 at 9:48 am

    It’s like playing a game of Calvinball where the consequences for losing are prison rape.

  2. 2 WK January 23, 2010 at 3:21 am

    Or like some sort of deranged Dungeons & Dragons. “I’m a level 4 crack dealer! +10 to my swagger levels for completing the Hustle & Flow Quest!” Or something. Maybe the USSC should throw in a 12 sided die for good measure.

  3. 3 Mark Osler January 23, 2010 at 5:12 pm

    When the guidelines first came out, there was a “Pop-o-matic” dice mechanism involved, but they got rid of that because it was making the process too transparent and easily understood.

  4. 4 pbpope January 23, 2010 at 11:26 pm

    It’s not uncommon to hear the judge let out an enthusiastic “Yahtzee!” when the parties correctly calculate the sentence range.


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