Thinking, Willing and Judging

In 1984, the perception was that too much disparity existed in the federal sentences being imposed. The solution, so it seemed, was to set up yet another independent federal agency, the United States Sentencing Commission, to promulgate guidelines for federal judges to follow. The goal was not only truth in sentencing, that is to say, no parole, but also punishment to fit the crime regardless of the defendant’s circumstances (except criminal history).

OK, this simplifies a complicated issue, but not too much. In essence, the idea was that a Florida housewife with no priors who committed armed robbery while trying to feed her four children would get the same sentence as a twenty year old from Harlem who was feeding a drug habit.

After 12 years of life, interpretation, and revision, the sentencing guidelines have been both a resounding success with respect to criminals serving real sentences, and an abject failure with respect to disparity and quality of sentencing. The problem is that the law has taken a great deal of judgment away from our federal judges and shifted it to our prosecutors. This has had important social implications that we should evaluate.

The guidelines are mechanistic when they are applied. To the credit of the Sentencing Commission, the guidelines do take into account certain variables, like prior criminal history, the defendant’s role in the offense, and the magnitude of the crime: the weight or amount of narcotics, the amount of money stolen, or how high up the defendant was in a criminal organization, etc.

There are a myriad of factors, and as few are willing to admit, feelings, which should also go into the mix of information and impressions upon which a judge should base a sentence which are not presently being considered by either the guidelines or the pre-sentence reports which come out of the various probation offices in each federal district. Such factors include the defendant’s age, community activity, family life and responsibilities, socioeconomic position, and the like.

One can hardly disagree with the Commission that the defendant’s race, gender and national origin are almost never relevant to sentencing, but the Commission has included too much on the list of “not ordinarily relevant” considerations. Sentencing was and ought to be again more like surgery and less like meat packing. Judges represent society’s scalpel, and the sentencing guidelines its cleaver.

Notice the ridiculous length to which one former prosecutor has gone to criticize the effect of the sentencing guidelines on blacks, especially young black males. Writing in the Yale Law Journal, Paul Butler, a black law professor actually advocated both legal and moral grounds for black jurors to nullify verdicts of guilty when nonviolent black defendants were on trial as a form of protest of the guidelines.

To be fair, there is an alarming number of young black males from urban centers who are presently serving long, mandatory, federal jail sentences for possession with intent to distribute illegal narcotics, and related nonviolent offenses. But the answer is not to waste scarce societal resources, or to get juries or individual jurors in the habit of violating their oaths to consider fairly the evidence presented, and to obey the judge’s instructions.

We know juries will always be inconsistent and arbitrary about dispensing mercy, and this is something the guidelines can and should prevent. But we need to place the burden of making tough and fair sentencing decisions back on the shoulders of those men and women of the federal bench who have the experience and judgment to craft appropriate sentences for the particular defendants before them.

It is ironic in the extreme that the federal judiciary is more scrutinized and politicized now than in recent memory, both in nomination and confirmation, while at the same time it is emasculated from doing the job, applying the skills, and exercising that rarest of qualities, good judgment.

Federal prosecutors have not historically been subject to such scrutiny, but with changing roles perhaps now the political stakes should be lower for judges and higher for the prosecutors’ positions. Why? Because under the guidelines so much of what goes into a sentence depends on with what the defendant is charged, not, interestingly, on the evidence, nor the verdict. All charging decisions are made by the prosecutor.

A recent holding of the Supreme Court says that during sentencing a judge must consider conduct under the guidelines for which a defendant was charged, including conduct on which the jury may have acquitted or was hung. The reason for such a decision is that such conduct is considered relevant by the Sentencing Commission. In other words, the prosecutor is allowed to decide the appropriate punishment not only for all guilty pleas and verdicts, but also for the conduct where the jury thought the defendant did not do the crime.

One way to put judging back in the hands of federal judges would be to make the sentencing guidelines advisory. Presently, if a judge wants to “depart” upward or downward from the mandated “guideline range,” such as 60 to 72 months, the judge must write all the compelling reasons for doing so. About 20% of all cases involve a departure of some kind, and of those, half involve a departure for assisting the government to convict other criminals. By these numbers, only the remaining 10% of all cases fall outside or involve factors or circumstances the Sentencing Commission did not consider.

The reason so few cases involve a departure is that it is both procedurally and legally difficult to follow the law, something most judges try to do, and to indicate with precision how the case fits outside the ken of the Commissioners. If the guidelines were advisory, judges would have the benefit of a standard for the usual cases, but leeway to exercise mercy and rigor as the evidence, cases, and individual defendants merit.

Instead of polarizing our society any more on account of race, wouldn’t it just be more simple to let the people vote, let the political branches pick good judges, let juries pay attention to the evidence they are presented, and let our judges judge?

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