Author: Alexander Spaulding, Associate Member, University of Cincinnati Law Review
At federal sentencing hearings across the country, the judge takes the time to explain how her hands are tied by an independent agency in Washington, DC, the United States Sentencing Commission. The judge explains to the defendant and others in attendance that she is required by law to start her sentencing analysis with the Federal Sentencing Guidelines that accounts for all of two factors before dictating a recommended sentence. Only then may the judge impose a sentence different (lesser in almost every case)than what the guidelines recommend, and furthermore, she must elaborate upon why she has amended the sentence. Regardless, any sentence is still subject to the constraints of the statutory mandatory minimums. The goal of all the statutory constraints on federal sentences is to create uniformity in federal sentencing, so that a hypothetical defendant in Texas is not incarcerated for decades for committing the same crime while one in California is slapped on the wrist. However, uniformity in sentencing has come at the price of reasonability. The Sentencing Commission’s recommended sentences are out of touch with the sentiments of many communities across the country, and the agency should use federal judges and juries, that deal with sentencing every day, as a resource to ensure that the sentences are not punishing people beyond what our society believes is reasonable or necessary.
Through the Sentencing Reform Act of 1984, Congress established the Sentencing Commission as a permanent agency to regulate federal sentencing. The commission’s guidelines replaced a system of indeterminate sentencing, where prison terms were decided by a parole commission after a defendant was already in prison. From 1984 until 2005, the guidelines were mandatory, so judges could not deviate from the guideline sentences absent a reason also proscribed by the guidelines. In 2005, the Supreme Court ruled that mandatory guidelines violated the Sixth Amendment in United States v. Booker, and held that the guidelines are “advisory.” After Booker, federal judges have discretion to sentence defendants outside of the guidelines, although appellate judges may overrule these sentences if they find that the trial judges have abused their discretion. Despite their advisory nature, the guidelines still have a massive impact on federal sentences. In 2015, judges only departed from the guideline range by their own volition in twenty percent of cases.
Determining what is a Fair Sentence
Since the guidelines are still so influential to the sentencing process, they should be fair. However, since the guidelines are passed by a slow-moving independent agency in Washington that always has motivation to appear tough on crime; the guidelines are often out of touch with the sentiments of many people, judges and citizens alike. While it is impossible to propose a panacea for judging the fairness of a sentence, the morality of the community in which a crime was committed can provide a useful barometer.
Judge James S. Gwin, a federal judge in the Northern District of Ohio, is committed to using the community as a check on the Sentencing Guidelines. In the past, Judge Gwin had polled the jury after sentencing to gather insight into what each jury member would have recommended for the defendant’s sentence. However, in November of 2014, Judge Gwin went a step further in United States v. Collins, when he polled the jury before he had sentenced the defendant, and even used the information from the jury poll to justify departing substantially from the guideline’s recommended sentence for the defendant. The government appealed to no avail; in June of 2016, the Sixth Circuit ruled that Judge Gwin’s use of a jury poll was a legitimate consideration and justification to deviate from the recommended sentence.
United States v. Collins
In Collins, the defendant was convicted on charges of possession and distribution of child pornography. Collins had used peer-to-peer software to download and share pictures and videos depicting child pornography. The mandatory minimum sentence that the defendant faced was 60 months (Five years), but guideline recommendation for his incarceration was between 262 and 327 months (22-27 years). After conviction, Judge Gwin asked the jury what each member believed was a fair sentence for the defendant, and the results were shockingly different than what was proposed by the guidelines. The jury responses ranged from zero to 60 months, for an average of 14.5 months (just over a year), and a median of only eight months. The large discrepancy between the jury’s recommended sentence and the guidelines’ sentence exemplifies the danger of congress’s and the federal commission’s goals of being “tough on crime.” This community’s standards were very different. Due to the discrepancy between the community’s standards and the guideline recommendation, Judge Gwin reasoned that the defendant should only receive the statutorily mandated minimum sentence of 60 months in prison.
Implications of Jury Polling
Judge Gwin’s jury polling demonstrated a divergence between the ideals of those who created the sentences for crimes and those who are actually affected by the crimes. However, Judge Gwin’s methods are not without criticism. Judge Gwin has been criticized for conflating the roles of the judge and the jury, because it is the judge’s duty to ultimately decide sentences, and a jury poll may act as both a cop out, and a dereliction of duty. However, Judge Gwin did ultimately decide the sentence in Collins, he just used the discretion granted to him by Booker. By polling the jury, Judge Gwin concretely demonstrated something that many judges, even the critics, can agree on—the guidelines need to be revisited to reflect the sentiments of dissatisfaction with the prison system in communities across America. In accordance with Section 994(c)(4) of Title 28a, a guidelines sentence must consider “the community view of the gravity of the offense.”  The jury polling practice is a concrete way that we can ensure that federal sentences have not lost touch with the sentiments of the communities. Furthermore, the results of the polls will inform the Sentencing Commission of more reasonable sentences in the future.
The Federal Sentencing Commission has fallen behind both judges and citizens alike, and judges have the ability to demonstrate this through jury polling. If the practice became more common, the sentencing commission could use jury polls as data that would inform them of community sentiment, which they could account for in the guidelines.
 See United States Sentencing Commission, An Overview of the United States Sentencing Commission, https://web.archive.org/web/20110322115415/http://www.ussc.gov/About_the_Commission/Overview_of_the_USSC/USSC_Overview.pdf.
 See United States Sentencing Commission, 2016 Guidelines Manual, Chapter 5, Part A. http://www.ussc.gov/guidelines/2016-guidelines-manual/2016-chapter-5#NaN
 See United States Sentencing Commission, Statistical Information Packet Fiscal Year 2015, at 11. http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/state-district-circuit/2015/6c15.pdf.
 See generally Matthew Lee, Going outside the Sentencing Guidelines: An Update on Federal Sentencing Practice and Procedure, Lorman, 2008. http://www.lorman.com/resources/going-outside-the-sentencing-guidelines-an-update-on-federal-sentencing-practice-and-procedure-15249
 See United States Sentencing Commission, 2016 Guidelines Manual, Chapter 1, Part A. http://www.ussc.gov/guidelines/2016-guidelines-manual/2016-chapter-1#NaN
 See supra note 3 at 11.
 See Rick Archer, 6th Circ. Says Judge Can Poll Jury On Sentencing Guidelines, Law360, 2016. https://www.law360.com/articles/812404/6th-circ-says-judge-can-poll-jury-on-sentencing-guidelines.
 828 F.3d 386 (6th Cir. 2016).
 See supra note 13.
 See supra note 14 at 387.
 Id. at 389.
 Hon. Richard G. Kopf, Federal Judges Should not Poll the Jury about Sentencing, Mimesis Law, 2016. http://mimesislaw.com/fault-lines/i-changed-my-mind/11271.
 28 U.S. Code § 994