Sentencing guidelines

Sentencing guidelines are non-binding independent agency recommendations that inform sentencing in law.[1][2] Courts consider these advisory forms, which contain maximum and minimum sentences, before deciding on the exact number of days, months or years a defendant must spend in prison.[3] "The Sentencing Guidelines enumerate aggravating and mitigating circumstances, assign scores based on a defendant's criminal record and based on the seriousness of the crime, and specify a range of punishments for each crime."[4] By contrast, mandatory sentencing sets legal parameters, typically minimums, for sentences.[5][6]

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United States
Further information: United States Federal Sentencing Guidelines

In the federal judiciary of the United States, Federal Sentencing Guidelines have long been applied by federal judges in adjudicating cases in federal courts.[7] State courts use their own sentencing guidelines.

Whenever any federal or state judge in the United States orders any individual to serve four months in any institutional setting such as a prison,[8] the total period of confinement in that conviction is "four months",[9] regardless if the maximum sentence is higher in the advisory sentencing guidelines sentence form.[1] This is especially true when a plea bargain or a stipulation has been made between the government and the defendant(s).[3] In other words, the "street time" (i.e., the months or years of parole or supervised release) in the sentencing guidelines sentence form is separate and does not constitute "a term of imprisonment or a sentence[.]"[10][11][9]

Sentencing guidelines also play an important role in the Immigration and Nationality Act (INA). For example, in removal proceedings under the INA, the U.S. government is statutorily obligated by the U.S. Congress to submit as evidence a certified copy of the advisory sentencing guidelines sentence form(s) in every case.[12][13] Failure to do that could constitute a "gross miscarriage of justice" and "deprivation of rights under color of law," a crime that entails capital punishment.[14]

United Kingdom

In England and Wales, the Sentencing Council (formerly the Sentencing Guidelines Council) sets sentencing guidelines, and in Scotland the Scottish Sentencing Council holds this responsibility.

See also

Notes and references

This article in most part is based on law of the United States, including statutory and latest published case law.

  1. "Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018)". U.S. Supreme Court. Harvard Law School. June 18, 2018. p. 1904. Courts are not bound by the Guidelines, but even in an advisory capacity the Guidelines serve as 'a meaningful benchmark' in the initial determination of a sentence and 'through the process of appellate review.'
  2. "Federal Sentencing Guidelines". Legal Information Institute. Retrieved 16 December 2014.
  3. "Hughes v. United States, 138 S. Ct. 1765 (2018)". U.S. Supreme Court. Harvard Law School. June 4, 2018. p. 1776.
  4. "Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002)". Supreme Court of Pennsylvania. Harvard Law School. December 19, 2002. p. 424.
  5. "Mandatory Minimums". United States Sentencing Commission. Retrieved 2021-11-05.
  6. "Sentencing Commission Takes New Look at Mandatory Minimums". United States Courts. June 2010. Archived from the original on 2012-10-11.
  7. Compliance, Technology, and Modern Finance, 11 Journal of Corporate, Financial & Commercial Law 159 (2016)
  8. "Popal v. Gonzales, 416 F.3d 249". U.S. Court of Appeals for the Third Circuit. Harvard Law School. July 29, 2005. p. 253 n.3. Popal's sentence of four to twenty-three months satisfies the one-year imprisonment requirement of § 1101(a)(43)(F). This sentence was functionally the same as a sentence of twenty-three months, with parole eligibility beginning after four months.
    • "Commonwealth v. Stein, 39 A.3d 365". Superior Court of Pennsylvania. Harvard Law School. February 7, 2012. p. 367 n.1. The usual practice in this Commonwealth is that the minimum sentence cannot exceed one-half of the maximum sentence, and a flat sentence is an illegal sentence.
  9. See, e.g., "Vartelas v. Holder, 566 U.S. 257 (2012)". U.S. Supreme Court. Harvard Law School. March 28, 2012. p. 260.
    • "Vartelas v. Holder, 620 F.3d 108". U.S. Court of Appeals for the Second Circuit. Harvard Law School. September 9, 2010. p. 110. That offense carried a maximum term of imprisonment of five years. The range of imprisonment recommended by the Sentencing Guidelines ('Guidelines') was 4-10 months; the prison term imposed on Vartelas was four months.
    • "Hanif v. Attorney General, 694 F.3d 479". Third Circuit. Harvard Law School. September 14, 2012. p. 482. On May 12, 2009, Hanif pled guilty to dealing in counterfeit United States currency, 18 USC § 473, and, on September 8, 2009, was sentenced to four months in prison.
    • "Bobb v. Attorney General, 458 F.3d 213". U.S. Court of Appeals for the Third Circuit. Harvard Law School. August 3, 2006. p. 215. Bobb pleaded guilty and was sentenced by the District Court on October 21, 1999, to a term of imprisonment of four months.
  10. 8 U.S.C. § 1101(a)(48)(B)
    • "Morrissey v. Brewer, 408 U.S. 471 (1972)". U.S. Supreme Court. Harvard Law School. June 29, 1972. p. 482. The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime.
      • "United States v. Pray, 373 F.3d 358". U.S. Court of Appeals for the Third Circuit. Harvard Law School. July 2, 2004. p. 361. A person who is on parole, although subject to some restraints on liberty, is not 'imprisoned' in the sense in which the term is usually used. For example, if a parolee were informed at the end of a parole revocation hearing that the outcome was 'imprisonment,' the parolee would not think that this meant that he was going to be returned to parole.
  11. "Shaya v. Holder, 586 F.3d 401". U.S. Court of Appeals for the Sixth Circuit. Harvard Law School. November 9, 2009. p. 403. [W]hen using Michigan indeterminate sentences as the predicate for classifying someone as an 'aggravated felon', the term must be measured by the sentence actually served or the minimum sentence given, whichever is greater, as this better incorporates the judge's discretion and determinations than the statutory maximum term.
  12. "Subtitle B—Criminal Alien Provisions: Sec. 322. Definition of Conviction and Term of Imprisonment" (PDF). Illegal Immigration Reform and Immigrant Responsibility Act of 1996. U.S. Congress. p. 630. (c) EFFECTIVE DATE.—The amendments made by subsection (a) shall apply to convictions and sentences entered before, on, or after the date of the enactment of this Act. Subparagraphs (B) and (C) of [8 U.S.C. § 1229a(c)(3)] shall apply to proving such convictions. (emphases added)
  13. "Alabama v. Bozeman, 533 U.S. 146 (2001)". U.S. Supreme Court. Harvard Law School. June 11, 2001. p. 153. The word 'shall' is ordinarily the language of command. (internal quotation marks omitted)
  14. "Deprivation of rights under color of law". U.S. Dept. of Justice. Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under 'color of law' include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials....
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