51:5 The Relevance of Offender Characteristics in a Guideline System

Abstract

The current Federal Sentencing Guidelines do not adequately address offender characteristics. The Guidelines should be amended to encourage judges to engage in broader and deeper analysis of offender characteristics. By “broader analysis,” I am advocating consideration of a wider range of offender characteristics than is currently permitted under the Federal Guidelines, including all of the factors listed within § 3553(a). By “deeper analysis,” I am advocating consideration of offender characteristics in average cases, not just those where a particular trait is “present to an unusual degree.” And I encourage the Sentencing Commission not only to incorporate these factors into the Guidelines structure but, also, to fulfill its responsibility to educate judges and practitioners by publishing studies on the relevance of such factors in sentencing decisions.

For many judges, sentencing is a fundamentally human, not legal, endeavor. Offender characteristics are crucial to making an informed judgment as to how likely a defendant is to reoffend and how the terms and length of a sentence serve the interests of that individual and society as a whole. With the exception of certain prohibited factors such as race, sex, nationality, creed, and socio-economic status, judges should be able to consider all relevant offender characteristics under the Sentencing Guidelines. Guidelines that restrict consideration of factors so crucial to the sentencing process will not earn the respect of judges and practitioners—credibility that is critical to the success of an advisory guidelines regime.