Student Review:

In this article, Yellen discusses the provisions of the Federal Sentencing Guidelines.  Two basis systems exists in imposing sentences.  Real-offense sentencing allows the sentencing judge to base the length of the sentence on the defendant's entire history (including crimes for which the defendant was acquitted).  Charge-offense sentencing limits the judge only to the defendant's convictions.  Each of these systems have positive and negative characteristics.  Rather than choosing between these two approaches, the Federal Sentencing Guidelines combine both real-offense and charge-offense sentencing, a decision that in Yellen's view was poorly conceived.
     The goals of sentencing reform is both to increase uniformity and proportionality.  While charge-offense sentencing promotes uniformity (similar sentences for offenders committing similar crimes), real-offense sentencing promotes proportionality (the ability of judges to take into account variations of defendants conduct).  The disadvantages of charge-offense systems is that the systems treats all offenders alike and shifts sentencing discretion to the prosecutor.  Real-offense sentencing is flawed because it unfairly takes into account offenses the defendant may have been acquitted for and creates complex rules.
     Yellen next does an in-depth explanation of the federal guideline provisions and explains how they are a combination between real-offense and charge-offense sentencing.  While the Guidelines begin by relying on offense characteristics, it allows an exception for judges to base sentencing on more-serious-offenses that were removed during plea bargaining (a provision included in real-offense systems).  The Guidelines also take into consideration the defendant's criminal history and post-offense behavior, but do not consider offender characteristics.  Under the Guidelines, Yellen is especially concerned with what he calls alleged related-offense sentencing, an issue which is considered under the real-offense sentencing system.  Judges are permitted to consider offenses that the defendant allegedly committed but was not convicted upon (due to a plea bargain or acquittal).  While the Guidelines profess to reject alleged related-offenses, the Guidelines do allow judges to take this conduct into account.  Yellen discusses the potential troubling impact of this approach.
     The Guidelines allow judges to consider alleged related-offenses in the sentencing decision for some offenses and not others.  This practice develops strikingly different treatment for two categories of offenses.  Yellen finds that the Sentencing Commision's rationale does not explain the reason for the different approaches.  Yellen questions both the decision to employ alleged related-offense analysis and the decision to distinguish between two categories of cases.  Although the Commission may have been trying to prevent prosecutorial count manipulation, such an approach does not meet this goal.  In order for the disadvantages of real-offense sentencing to be accepted, real-offense sentencing must meet its goals to increase proportionality and reduce prosecutorial power.  However, Yellen notes that the adoption of alleged related-offense sentencing has failed to meet its goals.
     Yellen suggests that the Guidelines should eliminate consideration of the defendant's acquitted offenses.  Another approach would be to eliminate alleged related-offenses if they were dropped due to a plea bargain.  Other reforms could increase the fairness of the Guidelines' sentencing provisions.  Thus, Yellen finds that the inclusion of real-offense sentencing in the Guidelines has incorporated all of the systems faults while not ensuring the desired benefits.  Yellen urges reform in order to create a fair sentencing system.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999