Recency Criminal History Points to be Deleted from Federal Sentencing Guidelines

This Tuesday, the United States Sentencing Commission (USSC) voted to delete 4A1.1(e) from the Federal Sentencing Guidelines Manual. This Guideline addresses the recency of previous imprisonment in calculating the criminal history points that increase a defendant’s sentence.

4A1.1(e) currently reads:

Add 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b) [more than 60 days] or while in imprisonment or escape status on such a sentence. If 2 points are added for item (d) [which adds points where the crime was committed while under a sentence, including probation, etc.], add only 1 point for this item.

On May 10th, this amendment, along with any others passed, will be sent to Congress, as set forth in 28 U.S.C. ยง 994(p). Congress may pass legislation rejecting the amendments within 180 days. If no action is taken, the amendments will become effective by November 1, 2010. In the meantime, criminal defense lawyers should argue that sentencing courts should not apply 4A1.1(e) for the same reasons the USSC voted to eliminate it.

The proponents of this amendment have argued that the recency and status guidelines are redundant, unfairly adding to the cumulative impact of the criminal history calculation. Statistics have shown that the recency of a prior record, when combined with the status provision in subsection (d), predicts recidivism in only 1 case out of 1000. In addition, not only does recency fail to reflect meaningful differences in past criminal conduct, it is actually more likely to increase punishment for less culpable defendants. The effect 4A1.1(e) and (d) have on deported immigrants who illegally reenter the country is particularly egregious, considering other cumulative guidelines and their usual reasons for re-entry.

The testimony and written statement of Margy Meyers, of the Federal Defender Sentencing Guidelines Committee, and Marianne Mariano, a Federal Public Defender in the Western District of New York, is particularly important reading for practitioners who would argue against application of 4A1.1(e) prior to its taking effect. All of the public comments on the proposed amendments to the Guidelines are available here.

Thank you to L. Burton Finlayson for the heads up on this notable development.