Reforming the Federal Sentencing Guidelines' Misguided Approach to Real-Offense Sentencing

10 Pages Posted: 19 Dec 2007

See all articles by David Yellen

David Yellen

Loyola University Chicago School of Law


All sentencing systems make use of information beyond the elements of the offense of conviction. This practice, known generally as "real-offense sentencing," is necessary because of the complexity and variety of criminal behavior and the need to keep criminal statutes relatively simple. Two defendants convicted of violating the same statute may be very different in terms of amount of harm caused, levels of personal culpability, and degrees of dangerousness to the community.

One of the enduring challenges in sentencing policymaking is the need to identify the appropriate structure and scope of real-offense sentencing. What facts beyond the elements of the offense of conviction should have an impact on the defendant's sentence? Should consideration of such additional facts be systematized or left to the discretion of individual judges? Should certain types of information be excluded from sentencing decision making, even if they are logically relevant? What process and burden of proof should apply to such fact finding?

The United States Sentencing Commission adopted a radical policy that requires judges to consider, in a mechanistic way, a great deal of real-offense sentencing information. This policy helped make the Federal Sentencing Guidelines overly rigid and complex and contributed directly to the Supreme Court's decision in United States v. Booker1 to invalidate the mandatory nature of the current Federal Sentencing Guidelines. As Congress and the Sentencing Commission consider the appropriate response to Booker, they should dramatically scale back this disastrous approach to real-offense sentencing. Fortunately, good models exist in a number of states with more successful sentencing guidelines.

Keywords: sentencing guidelines, sentencing reform, real-offense sentencing, sentencing

JEL Classification: K14, K41

Suggested Citation

Yellen, David N., Reforming the Federal Sentencing Guidelines' Misguided Approach to Real-Offense Sentencing. Stanford Law Review, Vol. 58, p. 267, 2005, Available at SSRN:

David N. Yellen (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

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