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August 12, 2004 - The CATO Institute (US - Web)

Reprieve on Sentencing Guidelines?

by Erik Luna, associate professor of law at the University of Utah, author of the Cato Institute report, "Misguided Guidelines: A Critique of Federal Sentencing" and contributor to the forthcoming Cato book, Go Directly to Jail.

Last Monday, the Supreme Court agreed to hear two cases that may well decide the future of the U.S. government's punishment scheme, a.k.a. the federal sentencing guidelines.

The justices' grant of review was all but guaranteed by another sentencing case decided by the Supreme Court in June. That opinion's aftermath provoked members of Congress and commentators alike to describe the state of federal sentencing in apocalyptic terms -- "chaos," "crisis," "siege," and so on.

Even Justice Sandra Day O'Connor chimed in recently. She characterized the decision as "a No. 10 earthquake" and said she was "disgusted in how we dealt with it."

In fact, my home state is an epicenter for handwringers, as four different federal trial judges in Utah have produced four different approaches to sentencing in less than a month.

But with these dire predictions about an impending collapse of the sentencing guidelines scheme, I can't help but hum the refrain from R.E.M.'s 1987 rock ditty: "It's the end of the world as we know it, and I feel fine."

Punishment in U.S. courts has run amok since federal lawmakers launched the current system in the 1980s, and the Supreme Court's ruling could provide the impetus to raze this regime -- and not a minute too soon.

The case that incited legal and political uproar and motivated the court's action last week, Blakely vs. Washington, would seem to affect only one aspect of federal sentencing. In Blakely, the Supreme Court invalidated a state scheme that permitted increased punishment based on factors neither admitted by the defendant nor proven to a jury.

Although the opinion refused to address the federal sentencing guidelines, the inevitable consequences appear obvious given that the invalidated state approach and that of the federal regime are virtually identical.

The court's holding also undermines some of its most constitutionally obnoxious rulings in the recent past, including cases that approved drastically increased punishment based on conduct that was never charged or, even worse, alleged crimes for which the defendant was actually acquitted at trial. Hopefully, federal prosecutors will now be bound to some semblance of truth-in-charging, and once again a "not guilty" verdict will mean what it says.

But the decision does not touch any number of perversions and injustices under the sentencing guidelines. Unknown to most Americans, punishment in federal courts is set not by elected lawmakers but by an administrative agency, the U.S. Sentencing Commission, fittingly described by Justice Antonin Scalia in 1989 as "a sort of junior-varsity Congress" in contravention of the constitutional design.

The commission is largely free of the typical limitations of other administrative bodies, such as detailed explanations for its rulings and court review for arbitrary and capricious action. It should come as no surprise, then, that the agency's work-product -- a 1,500-page tome that makes the federal tax code look like Reader's Digest -- exemplifies the mischief of politically unaccountable authority lacking the constraints of outside input and detached evaluation.

Premised on the untenable notion distant agents can assign a specific punishment to an individual they have never seen for a crime they know nothing about, the commission created a 258-box Parcheesi-style grid of all potential punishment ranges for federal offenders, employing words like "base levels," "categories," "points," "scores," and other jargon that sounds more like a parlor game than the process for imposing punishment on real human beings.

Moreover, a variety of seemingly relevant details -- such as the defendant's age, employment history, family ties and responsibilities, public service and charitable works -- are barred from consideration by trial judges. Those sentenced in federal court are stripped of individuating traits ( good and bad), placed into uniform groups that belie real differences, then crammed into tight pigeonholes of punishment.

Congress has made things much worse of late, including last year's Feeney Amendment that all but eliminated judicial discretion to craft a sentence below the guidelines range and launched a congressional blacklist of judges who depart downwardly without approval of federal prosecutors.

The House of Representatives is considering a thoughtless bill that, among other things, would effectively make any drug activity in almost any populated area subject to a federal sentence of at least five years imprisonment. The justification seems hard to fathom, but the consequences are clear: Prosecutors, not judges, have become the true sentencers in the federal system through their charging and plea decisions.

And that is the greatest crime of the current regime: Federal judges -- the most qualified and trustworthy decisionmakers in national government -- have been rendered impotent at sentencing. A number of stopgap ideas have been floated in the wake of Blakely, most akin to rearranging the deck chairs on the Titanic. A constitutionally sound and morally just solution would dump the current regime and start anew, creating real guidelines rather than dictates, and permit the entirety of an offender and offense to be taken into account.

This would not mean a punishment free-for-all. Instead, for instance, trial judges would have to provide written explanations for their application and/or deviation from sentencing principles, always subject to appellate review.

They might be guided by a computer database that collects pertinent information about previous criminal cases, offering an institutional memory judges could draw upon.

These and other techniques would help prevent unwarranted disparities while reserving discretion to tailor the punishment to the facts and factors unique to each case. Admittedly, this would be the end of federal sentencing as we know it. But if Congress finally allows judges to judge, we'll all be fine.

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