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January 16, 2005

Federal Sentencing Guidelines

ED-AC508_1sentence01132005194039.gif Amid a plethora of confusing and conflicting articles on the subject, the WSJ had a few clear and well-reasoned pieces about the Booker decision. The most remarkable thing about them was the graphic at left which, caveats about correlation not proving causation aside, at least provides a vivid reminder of why Congress implemented federal sentencing guidelines in 1984.

In Sentenced to Confusion (subscription req'd), the Journal reviews the history of the guidelines:

The Supreme Court handed down its long-awaited decision on the Federal Sentencing Guidelines Wednesday. And if you thought things were confusing before, just wait. About 60,000 criminals are sentenced in federal court each year, and the process will now be more bewildering than ever.

Better legal minds than ours are describing the reasoning behind this fractured pair of 5-4 judgments as "weird," "bizarre" or (our favorite for understatement) "intellectually complicated." The bottom line is that the Court decreed that the guidelines enacted by Congress 21 years ago must be considered as merely advisory, not mandatory. Judges are no longer bound to impose sentences within the ranges set by Congress.

In evaluating the Court's ruling, it helps to remember why Congress passed the 1984 sentencing guidelines in the first place. It was an effort to impose some kind of discipline on a system that was full of disparities and which an ever larger share of the American public saw as too lenient on criminals. It wasn't unusual for a person convicted of a crime in one jurisdiction to receive a sentence years or even decades longer than someone convicted of the same crime in a more liberal one. It all depended on the disposition, not to say whim, of the judges wielding the gavels.

While Wednesday's ruling restores considerable discretion to judges, it won't take the sentencing system back in time to pre-1984 -- despite what some critics are claiming. For one thing, the same legislation in which Congress mandated the sentencing guidelines also abolished the parole system, which often put criminals back out on the streets after serving just a brief time in jail. Unlike 21 years ago, a criminal handed a 10-year sentence today is likely to serve something close to that amount of time. Also, in recent years Congress has set mandatory minimum sentences for a wide range of crimes, and these remain unaffected by this week's ruling.

While admitting that judges may well continue to use the guidelines, the Journal points out that on review, federal appeals courts will apply a "reasonableness" standard, the problem being the disparity between what conservative districts like the 4th view as 'reasonable', compared with more liberal districts like the 9th. The big question now becomes, what will Congress do?

Some Democrats called for a go-slow approach, including Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, who said, "Congress should resist the urge to rush in with quick fixes that would only generate more uncertainty and litigation."

One wonders what could generate "more uncertainty and litigation" than post-Booker Congressional inactivity: already there has been a rush to re-examine past convictions in the hope that, absent mandatory guidelines, a more favorable sentence may be obtained. The Justice Department is already changing the way they send cases up:

The Justice Department already has made some changes in the wake of Wednesday's rulings. Prosecutors said they had received preliminary verbal guidance from Justice advising them that they no longer need to include factors that could increase a sentence in their indictments.

Additionally, prosecutors won't continue to seek superseding indictments from past cases to include additional factors, such as drug amounts and loss amounts in white-collar cases. These factors weren't heard by juries but were often critical in determining the length of a defendant's sentence.

And many judges were already disregarding the mandatory guidelines in anticipation of the Booker ruling:

Six months ago, the Supreme Court cast uncertainty over federal sentencing guidelines when it ruled in the Washington state case of U.S. v. Blakely, a case involving a Washington man whose sentence was boosted by factors neither admitted by the defendant nor considered by the jury. Many expected that ruling would eventually apply to federal sentencing guidelines. They were right.

Judges in the overwhelming majority of states have operated as though the guidelines were already unconstitutional, even before this week. "We're fortunate here because we anticipated exactly what the Supreme Court did," said U.S. District Judge Lawrence L. Piersol of South Dakota. He said that since June, the South Dakota judges have treated the guidelines as advisory, rather than mandatory.

It will be interesting to see whether Congress looks at the impact of that decision on recent rulings before doing something as radical as increasing mandatory minimum sentences. As Debra Saunders points out in an interesting editorial, too much Congressional micro-management amounts to Congress "sentencing defendants they never see":

Decades ago, judges chose to get around laws they didn't like -- they were acting like lawmakers. Then lawmakers passed laws that set sentences for trials they'll never see. Judges acted like lawmakers, then lawmakers acted like judges. Hanging judges.

Eric Sterling doesn't get the hostility that congressional Republicans feel toward federal judges. Since 1980, he notes, there have only been two years when a Democratic president could name judges, and Democrats ruled the confirmation process. As a result, the overwhelming majority of federal judges are "Republican-vetted," Sterling noted.

Congressional activism is not an improvement over judicial activism. It is a marriage of bad government with big government -- resulting in big, bad government. It replaces judges choosing which laws they want to enforce with lawmakers sentencing people they will never see.

The next few months should be very interesting.

Posted by Cassandra at January 16, 2005 09:31 AM

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This was a bad solution to a real problem. When the guidelines came out, my reading of them made me wonder how sentencing someone based on facts that were never proven in the criminal trial beyond a reasonable doubt, but only after the trial or plea on less than "BRD" could be constitutional. But I didn't do that kind of law, so I figured I didn't necessarily know everthing. Crazy disparity in sentences was a real problem. Judges, though, still have a better perspective of the case/defendant before them. Mandatory minimums should mitigate any "harm" (real or perceived) by these decisions.

Posted by: KJ at January 16, 2005 10:52 PM

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