Abraham’s Legacy: An Empirical Assessment of (Nearly) First-Time Offenders in the Federal System

Congress has expressly directed the United States Sentencing Commission to ensure that the federal sentencing guidelines make allowances for sentences other than imprisonment for certain first-time offenders. The aim of this Article is to demystify the criminal history categories used in that process, to create a working definition of the “first-time federal offender,” and to establish whether, as an empirical matter, such individuals are commonly imprisoned in federal correctional facilities. The data shows that a substantial number of offenders who have no prior convictions are lumped together with offenders who may be recidivists or who may have prior violent felonies. This Article proposes modifications to the criminal history categories, recommending the establishment of a guided downward departure for true first-time offenders, or, in the alternative, creating a new criminal history category for those same offenders.