American Judges Association


Date of this Version

January 2003


Published in Court Review: The Journal of the American Judges Association, 39:4 (2003), pp. 24-34. Copyright © 2003 National Center for State Courts. Used by permission. Online at


Why should a bank robber in California get a different sentence than a bank robber in Texas? This was the rallying cry behind the legislative implementation of the Federal Sentencing Guidelines. The Senate Judiciary Committee found that a major source of the astounding variations in federal sentencing for identical crimes was the “judge factor.” Federal judges had the discretion to select a sentence from anywhere within a broad statutory range for each offense. The judge had the sole responsibility of assessing each individual offender and deciding where, within that broad range, the offender should receive a sentence. As a result, sentences issued for the same offense differed dramatically, depending on the judge who handed down the sentence.

The congressional response to the dilemma of disparate sentencing was the enactment of the Sentencing Guidelines Reform Act of 1984. The legislation passed 85 to 3 in the Senate and 316 to 91 in the House of Representatives. The broad bipartisan support for the Act suggests that the objective of eliminating unwarranted judicial sentencing disparity was an admirable and respectable goal that encompassed the concerns of the nation as a whole.

The Act provided for the creation of the United States Sentencing Commission, a novel federal rule-making agency. The Sentencing Commission was charged with the development of a sentencing range for each class of convicted persons based both on the offense and the offender. The Sentencing Commission accomplished this task with the establishment of the Federal Sentencing Guidelines, a set of guiding principles that were expected to promote a more deliberate, fair, and rational sentencing process than had previously existed in federal sentencing. The “judge factor” was, thus, narrowly confined as the range of possible sentences was strictly defined and allowed for very little judicial discretion.

As stated earlier, the proclaimed goal of the Guidelines was to eliminate disparity and create truth in sentencing. It was not intended to serve as a cure-all to every judicial inequality that lies within the criminal justice system. Supporters of the Sentencing Commission and the Guidelines, however, may have naively assumed that such a miraculous judicial reconstruction would be a natural consequence of the 1984 enactment. The system of rules and procedure even lends an appearance of having been constructed on the basis of service and technocratic expertise, giving it a threshold credibility to a general public not familiar with its actual contours and operation. 5 In reality, a new and equally devastating sentencing disparity has evolved with the implementation of the Federal Sentencing Guidelines, which can no longer be attributed to the “judge factor.”

Though originally created to produce a more equitable sentencing scheme, the Federal Sentencing Guidelines have had the opposite effect and become a major source of societal perpetration of racial inequality. The question that originally sparked legislative outrage and subsequent action in the realm of federal sentencing has been answered: Why should a bank robber in California get a different sentence than a bank robber in Texas? He shouldn’t! A new question has arisen under the Guidelines, however, one that demands a response: Why should a black drug offender in America receive a different sentence than a white drug offender?

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