Sentencing Commission Calls for Changes Regarding Career Offenders and “Crime of Violence”

By: Zachary M. Nielsen

The Sentencing Commission sent a report to Congress on July 28, 2016, recommending several sweeping changes to criminal penalties. The Commission’s study was initiated following concerns that the career offender guidelines in U.S.S.G. § 4B1.1 brought about overly harsh penalties due to its inability to distinguish between career offenders with diverse criminal records. Its examination centered on the recidivism rates among career offenders fitting three categories: drug trafficking only, violent only, and mixed.

Interestingly, the report suggests that the career offender provisions apply only to individuals who have committed at least one crime of violence and not those defendants who qualify based only on drug charges. Drug traffickers, despite being younger than other career offenders, have a lower recidivism rate than violent career offenders. The report noted, “[d]rug trafficking only career offenders are not meaningfully different from other federal drug trafficking offenders and should not categorically be subject to significant increases in penalties required by the career offender directive.”

Also addressed in the report was the amorphous “violent felony” used in 18 U.S.C. § 924(e) and “crime of violence” in 18 U.S.C. §§ 16 and 924(c). The Commission called for a unified characterization, stating, “[a] single definition of the term ‘crime of violence’ in the guidelines and other federal recidivist provisions is necessary to address increasing complexity and to avoid unnecessary confusion and inefficient use of court resources.” Because the guideline’s criminal history rules already take into account an individual’s probability of recidivism, the Commission concluded, such a definition should include only the most serious prior offenses. The Commissions proposed definition applies to only “those offenses that inherently involve some level of violent or dangerous behavior against the person of another.”