Federal Sentencing Guidelines Amendments Part II: Relevance of Specific Offender Characteristics

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. In the coming weeks, we will post analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

The Sentencing Guidelines now recognize that certain characteristics of the defendant may be relevant in calculating sentencing ranges, including age, mental and emotional conditions, physical condition, and military service. This amendment was in response to sentencing judges increasingly using variances, rather than relying on departure provisions.

The amendment revises the introductory commentary to Chapter Five, Part H to explain that its purpose is to provide a framework for addressing specific offender characteristics consistently to avoid unwarranted sentencing disparities. It then amends policy statements §§ 5H1.1 (Age), 5H1.3 (Mental and Emotional Conditions), and 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction) to provide that age; mental and emotional conditions; and physical condition or appearance, including physique, “may be relevant in determining whether a departure is warranted, if [the offender characteristic], individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.” It also amends § 5H1.11 (Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works) to state that military service “may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines”.

The new authorization to consider age in some cases will help white-collar defendants, who often are older than those convicted of other federal crimes. Judges may consider youth as well, which will be most helpful in drug cases. While the amendments direct judges not to give these specific offender characteristics excessive weight, we are pleased that the Commission has finally recognized that they are relevant.