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Sentencing First Offenders in Federal Court: Is the Tide Finally Turning??

Kish Law LLC

Many people, lawyers included, are surprised when I tell them there is no such thing as a “first offender” in federal court. Many years ago, there were “Youthful Offender” statutes in federal court, but in our efforts to “shock and awe” crime, we completely eliminated all vestiges of the idea that young people or first offenders should get a break. In recent years, some breakthroughs I have written about in earlier posts now allow judges more freedom when imposing sentences for people convicted of federal crimes. A recent case and a survey conducted by the United States Sentencing Commission seem to give additional arguments to those trying to get the justice system to realize that a person who has led a previously honorable life needs to be sentenced very differently than one who has been in trouble before.

As we know, the Sentencing Guidelines are a grid based on two factors: Offense Level and Criminal History Category. There are six separate Criminal History Categories, with “criminal history points” assigned for various interactions with the criminal justice system. Arrests do no count, nor do convictions more than 10 years ago. However, and here’s the important part, the lowest category (Category I) applies to everybody who has either 0 or 1 “criminal history points.” This means that a 64 year old businessman never previously arrested is in the same category as a 35 year old with 19 arrests, and all of his convictions were over 10 years ago. In the major 1995 case involving the Guidelines, the United States Supreme Court said that a judge would “abuse his or her discretion” by trying to go BELOW Category I because the Sentencing Commission already took into account the low likelihood of recidivism when it created Category I.

Now that the Guidelines are no longer mandatory, more and more cases show that judges are slowly recognizing that we need to do better for “true first offenders”, in other words, people never previously arrested as opposed to people never convicted within the recent past. The recent case mentioned above is from the Sixth Circuit, United States v. Duane, No. 06-6536, (6th Cir. 7-17-08). Although they did not rule for the defendant, the court noted that, “Because Duane had zero points at age 57, he might plausibly argue that even category I – which applies when a defendant has zero or one criminal history point(s) – overstated his criminal history to some degree.” In other words, maybe a “true first offender” deserves more of a break than simply placing him or her into the lowest Criminal History Category.

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