“The Delinquent Guidelines: Calling on the U.S. Sentencing Commission to Stop Counting Defendants’ Prior Offenses Committed Before Age 18”

The title of this post is the title of this new article authored by Ian Marcus Amelkin and Nicholas Pugliese now available via SSRN. Here is its abstract:

The United States Sentencing Guidelines’ recidivism provisions recommend harsher punishment for defendants with a prior criminal record. The Guidelines authorize an accounting not only of a federal defendant’s criminal record as an adult, but also as a child. Prior offenses committed before age 18 enhance sentences for thousands of people each year, but the practice has not been widely explored in the academic literature. A federal defendant’s juvenile record can lead to a higher Guidelines range through a variety of mechanisms: it can increase a defendant’s criminal history category, increase the crime’s total offense level, qualify the individual for “career offender” status, and deny relief from mandatory minimum sentences.

The use of pre-18 priors to enhance later federal sentences is both constitutionally suspect and misguided public policy. First, the practice stands in tension with Supreme Court precedent recognizing “that children are constitutionally different from adults for purposes of sentencing” in a way that makes them “less deserving of the most severe punishments.” Second, it is unequitable to people of color, who are more likely to be prosecuted for their pre-18 conduct than their white counterparts who commit similar acts. Third, it generates unequal treatment between similarly-situated defendants, a result at odds with the Guidelines’ “primary goal” of fostering uniformity in sentencing. Finally, it raises problems of notice given that pre-18 offenders are not told that their juvenile or youthful offender cases, which are not “convictions” under most states’ laws, can later be used against them to enhance a future federal sentence.

Now that the Sentencing Commission is back in action following a three-and-a-half-year hiatus, this article recommends that the Commission amend the Guidelines to stop counting pre-18 prior offenses.