Faculty Publications

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 inequitable 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 young people often 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
federal sentence.
The United States Sentencing Commission has the power to end this unjust practice. This
Article recommends that the Commission amend the Guidelines to stop counting defendants’
prior offenses committed before age 18.