This is sentencing 101, so let’s start with a basic definition: A sentence is an official punishment handed down by a judge to someone who has been convicted of a crime. Not all sentences involve prison time. Defendants can also be sentenced to probation and ordered to pay a fine. Many times, defendants will get sentenced to a little (or a lot) of all of the above: They serve time in prison, have to report to a probation officer after they get out, and must pay money to the government (fines) and to their victims (restitution).
FAMM’s work focuses on sentences that send people to prison. In particular, we’re concerned with overly harsh and outdated sentences, which fall into two categories: Mandatory minimum sentences and guideline sentences.
How a sentence is determined: Mandatory minimums and guidelines
In the Federal Courts system – which handles cases brought by federal prosecutors who work for the U.S. Department of Justice, rather than cases brought by local or state prosecutors – judges base their sentences on the Federal Sentencing Guidelines, mandatory minimum sentencing laws, or both.
Mandatory minimum sentences – set by Congress, not judges – require automatic, minimum prison terms for certain crimes. Most mandatory minimum sentences apply to drug offenses, but Congress has enacted them for other crimes, including certain gun, pornography, and economic offenses. For example, under federal law, selling 28 grams of crack cocaine triggers a minimum sentence of 5 years in prison. And if you’re caught selling 280 grams of crack, you’ll face a minimum of 10 years behind bars even if the judge does not think you need such a long sentence (there are a few exceptions such as safety valves and cooperating with the government).
Judges also use the Federal Sentencing Guidelines Manual. As its name suggests, the manual guides judges toward a sentence based on the facts that led to the conviction. Unlike mandatory minimums, the sentencing guidelines are advisory, not mandatory. Judges must calculate them, but they are allowed to go below or above someone’s guideline sentence depending on the circumstances of the case.
Here’s an example of how a federal judge uses the guidelines to determine a sentence for a man convicted of distributing seven kilograms of marijuana (a drug amount that is too low to trigger a mandatory minimum):
1.) The judge opens the manual to the Drug Quantity Table, which is used to determine the “base offense level,” or the starting point, for a drug sentence. The Drug Quantity table says that at least five kilograms of marijuana, but less than 10 kilograms of marijuana triggers a base offense level of 14. Level 14 is now the starting point for the judge’s sentence calculation. (The guidelines have 43 base offense levels; the higher the level, the longer the sentence.)
2.) Next, the judge uses the guidelines to determine if the sentencing level should be raised or lowered. Let’s say the defendant sold marijuana with some friends. If he was the “organizer or leader” of that group, and the group contained five or more people, the guidelines manual says his sentencing level should be increased by four levels, which in this case would be level 18. If the defendant rented a garage where he stored and from where he sold marijuana, he would get the 2-level enhancement for maintaining drug-involved premises, or if he asked his 17-year old brother to keep an eye out for the cops, the guidelines add two levels for using a minor to commit a crime. Judges can also lower the defendant’s sentencing range if, for example, the defendant played a particularly minor role or has accepted responsibility for his crime.
3.) The judge then takes the offense level she’s calculated and converts it to a sentence using the manual’s Sentencing Table. In the case of our marijuana defendant, the sentencing table converts a Level 20 offense to a sentence of 33-41 months for someone with little or no criminal history. But let’s say our defendant has been in trouble for marijuana before; perhaps he was on probation for a smaller marijuana charge dating back a few months when he is caught with the seven kilos. That will get him at least one criminal history point for his prior conviction and an extra two points for being on probation at the time of his arrest. Three criminal history points puts him in criminal history category II, which increases the recommended sentence to 37-46 months.
4.) Once the judge has come up with a guideline recommended sentence, she then considers whether any “departures” are appropriate. The Sentencing Guidelines provide for many upward and few downward departures based on a variety of factors. For example, the judge might consider the criminal history calculation overstates our young man’s true criminal history and depart back to Criminal History Category I, lowering the recommended guideline sentence as a result.
5) Finally the court consults a federal law to test whether the guideline sentence is enough, but not too much, to punish, deter, incapacitate and rehabilitate the defendant. If the judge finds the recommended guideline sentence is greater than necessary (or in some cases, not sufficient), he or she is free to “vary” below or above the recommended sentence.
While judges can vary from the sentencing guidelines, they can’t sentence below the mandatory minimums (except in very limited circumstances). If there is a mandatory minimum, it always trumps a lower guidelines sentence. Read this FAQ for even more information about how federal sentencing works.
What about the states?
What we just went over is what happens in federal court. If you are prosecuted for a crime in state court, the laws and processes will be different. Some states use sentencing guidelines and some have mandatory minimums, but each state does it differently. Learn about sentencing laws in Massachusetts and Florida and check out our state map.