Legal

Sentencing

After a perpetrator has been convicted of a crime in federal court, the federal court must then determine the sentence that the perpetrator must serve as a result of that conviction.  Because the vast majority of sexual violence in Indian Country falls under federal jurisdiction, an understanding of the Federal Sentencing Guidelines is necessary to determine how perpetrators of sexual violence in Indian Country are punished.

Federal judges have a large combination of sentences at their disposal, including: incarceration in a federal prison, fines, probation, and forfeiture of property used to conduct that crime.  Because of the variation between different judges and the different sentences that they imposed, there used to be very little consistency in sentencing perpetrators.  To address this lack of consistency, federal courts implemented the Federal Sentencing Guidelines.  The Federal Sentencing Guidelines provide guidance in sentencing criminals to federal sentences for federal crimes.  It is important to note that federal judges still have the ability to deviate from the guidelines under special circumstances.

At first glance, these guidelines appear to be very complicated, but they are easier to utilize than they look.

The Federal Sentencing Guidelines operate upon a points system, operating on a scale from 1 to 43.  The higher the points assigned to the crime, the longer the perpetrator has to remain in the federal penitentiary.  Every offense has a pre-assigned “base level” number of points.  Thus, in order to calculate a sentence, you must first determine the “base level” number of points the conviction holds.  Federal sexual violence crimes are enumerated under §2A3 of the Federal Sentencing Guidelines.  After the “base level” number of points is determined, it is then determined whether any enhancement or reductions apply to the sentence.  Enhancements are conditions that make the crime worse, so enhancements are added to the “base level” number of an offense so that the perpetrator must spend more time in prison.  For example, many sexual violence crimes require a 4 point enhancement if the victim is under sixteen-years-old.  Thus, if the “base level” of the offense is 18, 4 points would be added to the offense, incurring 22 points towards his sentencing.  More than one enhancement can be applied to a single offense.  In fact, the court can apply as many enhancements as are supported by the facts of the case.  Just as the perpetrator receives enhancements for especially bad behavior, he can receive point deductions for good behavior.   For example, if the perpetrator cooperated with law enforcement officers, he can receive a 2 point deduction in his sentence.  Thus, if the “base level” of his offense is 18, he receives a 16 level sentence, because of his good behavior.

After all of the enhancements and deductions are added and subtracted to the “base level” of the offense, the perpetrator is left with his offense level, a number ranging between 1 and 43.  It is possible for a perpetrator to accrue more than 43 points during his sentencing calculation; however, if this happens, the sentence is always considered to be worth 43 points, because this is the maximum on the on the sentencing scale.   After the “offense level” is calculated, the sentence is calculated by matching the “offense level” to months of imprisonment necessary for that crime in the sentencing table. For example, a perpetrator who has committed a crime worth only 1 point can be sentenced to a maximum of six months in prison under the guidelines system.  A perpetrator who has committed a crime worth 43 points must remain in prison for life.  Here is the table used for determining how long a person must remain in prison based on the number of points he has accrued:

Federal Sentencing Documents

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*National Tribal Trial College is a project of the Southwest Center for Law and Policy (www.swclap.org) This project was supported by Grant No. 2011-TA-AX-K045, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.