The United States Sentencing Commission (USSC) is a permanent independent agency in the judicial branch of the government that develops sentencing guidelines for U.S. Federal Courts. The fairness of the agency’s sentencing guidelines has long been a subject of debate.
The United States Sentencing Commission (USSC) was created by the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984, with the sentencing guidelines it went on to develop replacing the previous manner of federal sentencing, which had allowed judges to render indeterminate sentences ranging from probation to a specified maximum time length. The commission’s guidelines, with the goal of creating a uniform sentencing policy and avoiding unwarranted disparity among offenders with similar characteristics convicted of similar conduct, went into effect in November 1987. It called for consistent sentencing ranges, taking into account the seriousness of the criminal conduct, the defendant’s criminal record, just punishment, rehabilitation, and deterrence. It also abolished parole, while allowing 54 days of credit a year for good behavior. Judges were then advised to choose a sentence from within the guideline range, unless the court identified a factor the Commission failed to consider that should result in a different sentence. But shortly after the guidelines were set, defendants began disputing the concept as a violation of the separations of power doctrine. However, in 1989 the U.S. Supreme Court, in Mistretta v. United States, 488 U.S. 361, upheld the constitutionality of the commission as a judicial branch agency. Since then, federal judges have sentenced approximately 950,000 defendants under the guidelines, which have continued at times to be both amended and challenged.
The November 2007 Federal Cocaine Policy came about after years of controversy following the 1986 Anti-Drug Abuse Act passed by Congress. That act resulted in crack cocaine offenders serving prison terms up to eight times as long as those convicted for involvement with powder cocaine, the Act indicating that one hundred times as much powder cocaine as crack was required to produce the same punishment. Arguments ensued that crack cocaine offenders were being unfairly targeted because the majority of them were black, or living in urban neighborhoods. The USSC, taking the years of discussion into account, reduced mandatory minimum penalties for future first-time crack cocaine offenders in their federal court guidelines.
As of March 3, 2008, it became retroactive for some prisoners in federal prisons convicted for crack charges in the past. In August 2010, Congress passed the Fair Sentencing Act of 2010 that, among other things, increased the amounts of crack cocaine required to trigger mandatory minimum penalties. The temporary authority that the Act gave the USCC to modify the guidelines expired on October 31, 2011, and was replaced with a permanent guideline amendment on November 1, 2011.
The United States Sentencing Commission (USSC) consists of seven voting members appointed by the President, and confirmed by the Senate, and two non-voting members. Among their responsibilities:
USSC is organized into four offices:
From the Web Site of USSC:
The U.S. Judicial Branch Budget for FY 2013 (pdf) provides the following outline of the agency’s expected expenditures:
Personnel Compensation $10,000,000
Personnel Benefits $3,000,000
Other Services from non-Federal sources $2,000,000
Travel and Transportation $1,000,000
Insider Trading Criminals Often Receive Lighter Punishments
Despite the work of the U.S. Sentencing Commission (USSC) and the existence of federal guidelines it imposes, white-collar criminals convicted of insider trading often got off with lighter sentences.
During 2009 and 2010, 15 insider-trading cases were brought by the U.S. Attorney in New York. Of these, 13 sentences (or about 87%) were lighter than the terms prescribed by the U.S. Sentencing Guidelines, and seven of the sentences carried no prison time at all.
Judges in Manhattan federal courts were especially prone to give out easier sentences. According to the Sentencing Commission, 42% of all sentences in 2009 were below the guidelines. But in the Southern District of New York, 57% of all sentences issued by judges were lighter.
The federal guidelines, which went into effect in 1987, were meant to bring more consistency to sentencing. But a 2005 Supreme Court decision in United States v. Booker said district court judges were no longer bound by the guidelines.
Some experts say insider-trading defendants often use glowing character references from friends, family and colleagues to sway judges into going easy on them.
“You’re not going to get a big presentation about how peoples’ lives were ruined,” Sam Buell, a professor at Duke University School of Law and a former federal prosecutor, told Thomson Reuters. “In insider-trading cases, where are the victims?”
But there are examples of some insider trading criminals getting long sentences. Matthew Kluger, a former associate who admitted giving confidential deal information to a stock trader, was given a 12-year term in 2012. The sentence was the longest ever in an insider trading case.
Why Insider-Trading Convicts Often Escape Harsh Punishment (Thomson Reuters)
Insider Trading Defendants Avoid Prison In 44% Of New York Cases (by David Glovin and David Voreacos, Bloomberg News)
Hey Insider Traders, Here's One Way To Get A More Lenient Sentence (by Julia Reynolds La Roche, Business Insider)
Former BigLaw Associate Gets Record Sentence in Insider Trading Case (by Debra Cassens Weiss, ABA Journal)
Implementation of the Fair Sentencing Act
One year after Congress adopted the Fair Sentencing Act of 2010, which sought to reduce the sentencing disparity between convictions for crack and powder cocaine, the USSC took a bold step and decided to make the new law retroactive and apply it to criminals already serving time.
Before the Fair Sentencing Act was adopted, possession of crack resulted in prison sentences that were 100 times longer than those for being caught with powder cocaine. Under the Controlled Substances Act, which was amended during the tough-on-drug-crime 1980s, a first-time offender found trafficking five grams of crack received a minimum mandatory sentence of five years—the same jail time for someone caught with 500 grams of powder cocaine.
The Fair Sentencing Act adjusted this disparity by increasing the amounts of crack that triggered penalties, from five grams to 28 grams for five-year minimum sentences and from 50 grams to 280 grams for 10-year minimum sentences. The act also eliminated the five-year mandatory minimum prison term for first-time simple possession of crack.
Congress’ intent was to change sentences for new convictions. But the Sentencing Commission decided injustice had been served on individuals previously convicted of crack possession and applied the new rules retroactively.
The NAACP hailed the move, saying more than 12,000 men and women currently incarcerated for crack cocaine possession—of which 10,000 were African American—would become eligible for sentence reductions.
The Sentencing Commission’s decision prompted at least two U.S. Supreme Court cases that debated whether the sentencing law should apply to people who were convicted of cocaine crimes, but not yet sentenced, before it went into effect.
Most Frequently Asked Questions: The 2011 Retroactive Crack Cocaine Guideline Amendment (U.S. Sentencing Commission)
Data Show Racial Disparity in Crack Sentencing (by Danielle Kurtzleben, U.S. News & World Report)
US: Crack Cocaine Ruling a Victory for Rights (Human Rights Watch)
Justice Revisited! Crack Sentencing Reform Applies to Old Convictions (by Shani O. Hilton, Color Lines)
Argument Preview: the Crack Cocaine Controversy — Again (by Lyle Denniston, SCOTUS Blog)
Abiding by the Fair Sentencing Act (New York Times Op-Ed)
Toward Drug Case Justice (editorial, New York Times)
Confusion arises over crack cases (by Rick Schmitt, Los Angeles Times)
Mukasey response 2/6/08 (by Monica Pratt Raffanel, Families Against Mandatory Minimums)
•Judge William K. Sessions III, 2009-2010
•Judge Diana E. Murphy, 1999-2004 (resigned 1/31/04)
•Judge Richard P. Conaboy, 1994-1998 (resigned 10/31/98 before 10/31/99 end of term)
•Judge William W. Wilkins, Jr., 1985-1994
A federal judge for the past eighteen years, Patti B. Saris has chaired the United States Sentencing Commission since January 2011. Created in 1984 to deal with disparities in sentencing in different states, the Commission develops sentencing guidelines for U.S. Federal Courts. President Obama nominated Saris as Commissioner and Chair of the Commission in April 2010. She was confirmed by the Senate on December 22, 2010, for a six-year term expiring October 31, 2015, and sworn in by Justice Elena Kagan on February 16, 2011.
A federal judge for the past 15 years, William K. Sessions III has chaired the United States Sentencing Commission since October 2009. Created in 1984 to deal with disparities in sentencing in different states, the Commission develops sentencing guidelines for U.S. Federal Courts. President Barack Obama had nominated Sessions on April 20, 2009, but Senate Republicans held up his confirmation for six months for reasons that appeared to be unrelated to Sessions himself.