Monday, May 11, 2015

An Unapologetic Lack of Empiricism: Chapter 7 of the Guidelines

First Assistant Federal Defender Kirk Redmond --

Chapter Seven of the Guidelines governs supervised release violations. But the sentencing ranges prescribed by this chapter are utterly bereft of empirical analysis. A long time ago, the Commission threw darts when constructing the penalties for particular supervised release violations. In 1990, the Commission wrote:
At this time, the Commission has chosen to promulgate policy statements only. These policy statements will provide guidance while allowing for the identification of any substantive or procedural issues that require further review. The Commission views these policy statements as evolutionary and will review relevant data and materials concerning revocation determinations under these policy statements. Revocation guidelines will be issued after federal judges, probation officers, practitioners, and others have the opportunity to evaluate and comment on these policy statements.

U.S.S.G. Chapter 7, Part A.

For the last 25 years, the Commission has been sharpening their pencils (we guess). The promised review of the revocation policy statement has never occurred. Apparently, the review of “relevant data” and the issuance of empirically-based guidelines has been consigned to the dustbin of history. Thousands of clients have been sentenced based on darts thrown a quarter-century ago.
The introduction to Chapter Seven has been amended twice, though neither amendment implicates the substance of the Commission’s approach. The two listed amendments, 362 and 646, merely clarify when intermittent confinement can be a condition of supervised release. The promised review of Chapter Seven has never occurred.

Too harsh? Maybe. But remember that this guideline sits in a scheme the Supreme Court has generally praised as “the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions” And this review is purportedly “ongoing. The statutes and the Guidelines themselves foresee continuous evolution helped by the sentencing courts and courts of appeals in that process.” That continuing empirical review, when it occurs, is what lends the Guidelines legitimacy. Where that empirical review is absent, so is the legitimacy of the guideline.
Consider how this plays on the ground. You have a client who is accused of violating supervised release by using methamphetamine. The criminal history category is V. Chapter Seven sets the advisory policy range for a B grade violation at 18-24 months. But under USSG 2D1.2, which penalizes possession of methamphetamine, the offense level would be 4 (before deducting acceptance of responsibility credits for stipulating) with a policy range of 4-10 months. The supposedly empirically based guideline range is 22% of the Chapter Seven Guideline range. Because, darts.

Or, say your client slugs a guy in a bar. Pursuant to USSG 2A2.3, the offense level would be 7. With a criminal history category of II, for instance, the policy range would be 2-8 months. If two levels were deducted for acceptance of responsibility (based on a stipulation to the alleged conduct), the policy  range would be 0-6 months. But because the violation is a Grade B, the policy range under Chapter Seven is 6-12 months. Empirical validation, indeed.

Chapter Seven stinks. We need to let the courts know this.

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