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Back to list of Dissenting Judges

Remarks of Morris E. Lasker, U.S. District Judge for the Southern District of New York

Before the Symposium on Sentencing Guidelines; September 9, 1997

Senator Kennedy, Congressman Conyers,

I thank you for the opportunity to join you and other interested persons today in assessing the U. S. Sentencing Guidelines and considering, as you put it in your letter of invitation "whether they have worked as initially intended, and to examine any unintended consequences stemming from their implementation."

I came to the bench nearly 30 years ago, in 1968, and developed a strong interest in the subject of sentencing early on, both because of my direct responsibilities as a sentencing judge- -by now I have sentenced at least 1,000 defendants - - and because, by the arbitrary assignment of cases, I was called upon, over a period of years, to preside over the litigation relating to the conditions in the New York City jail system, one of the largest in the country. In connection with these responsibilities, I have visited a number of federal correctional institutions, some New York State prisons, and nearly all of those of New York City, and became especially interested in the impact of incarceration - - for good or evil - - on prison inmates.

Prior to the passage of the Sentencing Reform Act of 1984, which created the Sentencing Guidelines Commission, I testified both before the House and Senate favoring enactment of the legislation. I did so because I believed that the then existing system of sentencing, which gave Judges nearly unlimited discretion in imposing sentences resulted in unwarranted disparity excessively influenced by the personal views of the sentencing judge, and because I hoped that the proposed - - now actual - - guideline system would result in sentences which were effective and just. Today I conclude, with sorrow and disappointment, and in the company, as you undoubtedly know, of many others, that the system is resulting in the imposition of many sentences which are neither just nor effective.

My earlier testimony in support of the Sentencing Reform Act of 1984 was based on the assumption that the system to be developed would - - as a number of state guideline systems do - -establish a structure of guidelines which would have greater than precatory influence on judges, but would not be binding. Such a system, which I still favor, would have established proposed sentences based primarily on:
A) the actual offense,
B) the offender's prior convictions,
C) the injury inflicted on the victim,
D) the defendant's acceptance of responsibility by plea of guilty and otherwise, and
E) the effect of a sentence on the defendant and his family, if he had one, but would, as distinct from the present guidelines, have authorized the sentencing judge to sentence anywhere above or below the guideline, (but, of course, within the penalty range prescribed by statute), provided that the judge state on the record or in writing his or her reasons for imposing a non-guideline sentence, and provided that both the defendant and the prosecution could appeal any such sentence.

Such a system would have permitted the judge the flexibility that is necessary to deal with the proposition that every case is different from every other and that sentencing by pure codification is bound to create unfairness, just as did sentencing by pure judicial fiat.

As we all know, the Federal Sentencing Guidelines which are now in effect take a very different approach, and in my opinion, although they have been established by two sets of conscientious and thoughtful Commissioners and staff after considerable study, have resulted in a sentence structure which is not effective and produces as much injustice as did the predecessor system.

What are the faults of the present guidelines? They have been widely discussed, as you must know, and include the following:
1) They substantially favor incarcerative sentences - - even in the cases of first offenders - - over non-incarcerative sentences.
2) They have established a system of wholly mechanical sentence computation which desensitizes those associated with it, and converts a sentencing proceeding, which might otherwise have some salutary effect on the offender, to a mathematical and logistical exercise which, as Judge Cabranes has said elsewhere, generates "a dense fog of confusion that undermines the legitimacy of a judges' sentencing decision."
3) While removing unfettered judicial discretion from the sentencing scene, the new system substitutes nearly unfettered prosecutorial discretion, and some probation officer discretion. The prosecutor controls sentences by choosing the offense of prosecution and by plea bargaining with the defendant not only as to the charge, but as to stipulations of fact which bind the sentencing judge and sometimes literally dictate the sentence.
4) The Guidelines often result in unfairly lengthy sentencing by requiring the sentencing judge to consider, in addition to the conduct of the actual offense, other "relevant conduct" including conduct for which the defendant may have been tried and acquitted. While the U.S. Supreme Court has affirmed the constitutionality of such a practice, the issue at sentencing is one of fairness, not constitutionality, and the nearly mandatory requirement that the sentencing judge include broadly defined "relevant conduct" in sentencing calculations can well result in unjust sentences.
5) This is particularly so in light of the Guidelines' discouragement of or exclusion from consideration of such items as family ties and responsibilities - - although to be fair to the Commission, it is the Congress itself which has declared such items to be generally inappropriate.

But whatever virtues the Guidelines do have, and whatever thought and effort on the part of the Commission and its staff have gone into producing a hoped-for just result, has been mangled by Congress' imposition of mandatory minimum sentences, which of course prevent the exercise of any discretion either by the Commission or the sentencing judge, and which, as I am sure you know, the recent Rand Study found to be the least cost-effective method of cutting drug consumption and drug-related crime. Fairness - - the objective of the Sentencing Reform Act of 1984 - -can never be achieved by mandatory minimums which trash the Guidelines Commission and make unwilling executioners of sentencing judges.

The enactment of mandatory minimums has been a perhaps understandable, but nevertheless misguided, political reaction by Congress to fear by the public of the level and nature of crime in the past decade.

But those fears are not always rational, prompted, as they usually are, by reports of a single, lurid crime rather than by hard, factual knowledge of the actually existing level and nature of crime in the country. Fortunately, the present apparent nation-wide reduction in crime levels offers an opportunity for Congress to reconsider the imposition of mandatory minimums.

In this connection, it is terribly important to distinguish between violent and non-violent crime. The greatest fault of our present system - - whether resulting from the Guidelines, the mandatory minimums, or both - - is that it results in the imprisonment or the imprisonment for too long, of vast numbers of offenders who have committed non-violent offenses. On this subject I commend to your attention the remarkably perceptive recent article by the experienced and highly regarded criminologists Franklin E. Zimring and Gordon Hawkins in Volume 46 Duke Law Journal at 43. As they point out:

There is no reason to assume that the large portion of crime in the United States that does not involve violence or the threat of violence - - more than 80/% - - is similar to the less than 20/% of crime that is violent. There is no reason to assume that the sorts of people who commit violent criminal acts are indistinguishable from the sorts of people who commit nonviolent criminal acts. There is no reason to assume that the same conditions function as the proximate causes of both violent and nonviolent incidents. Finally, there is no reason to assume that counter-measures that succeed in reducing nonviolent crime will have equivalent success in reducing the incidence and seriousness of violence. Yet those who regard American violence as a crime problem all too frequently do assume that unjustified intentional personal injuries involve the same protagonists, the same causes, and the same solutions as other forms of criminal behavior.

Comparing the level and nature of crime in Los Angeles with that of Sydney, Australia, and London, Zimring and Hawkins note that the number of total offenses are about the same in all 3 cities, but that the level of violent crime is significantly higher in Los Angeles. Zimring and Hawkins conclude that American fear of that violence is "translated into a general campaign against crime." Such a failure to discriminate may explain the lock-em-up and throw-away-the-key attitude which has caused the United States to incarcerate a far higher percentage of its citizens than any other country, except Russia.

What, then, is to be done?

I suggest the following changes in our present approach to the treatment of criminal offenders:

First: Restructure the Guidelines so that
(a) they guide rather than dictate
(b) as they now do, require the sentence judge to state on the record, his or her reasons for imposing a sentence which differs from the Guidelines proposal, and
(c) which is subject to appeal on an abuse-of-discretion ground.

Second: Eliminate mandatory minimums, so that the informed Commission and the experienced judge who deals face to face with the offender can exercise discretion when necessary to do justice. Discretion is not a dirty word. The constitutional provision of life tenure for judges was not approved by the American people for the benefit of the judges, but to assure the people of the United States that they would be adjudged by officials uninfluenced by political considerations which might cause injustice.

Finally: Both the Commission and Congress should devote further considered attention to the distinction between violent and non-violent offenses with a view to adopting more constructive and less expensive methods of dealing with non-violent offenders than by incarceration.

It is time to begin the end of America's love affair with imprisonment.

I thank you for the opportunity you have given me to express my views and for all that you have done, and are doing, to further the course of justice.

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