Why the Pending Bill That Would Limit Federal Judges' Sentencing Discretion Even More Should Not Be Passed

By EDWARD LAZARUS

Thursday, Apr. 03, 2003

Federal district court judges are already overworked, underpaid, and subject to a variety of professional frustrations. If Congress has its way, their job satisfaction is about to take another giant hit.

The main reason is a new bill currently headed for a House-Senate Conference Committee. If enacted, it will impose new and severe restrictions on the already sharply limited discretion that federal judges exercise over the sentences they mete out to criminal defendants.

The current Congress seems hell-bent on curbing judicial freethinking in the area of sentencing. For instance, though federal judges traditionally work independently, except in dramatic cases that require impeachment, the House Judiciary Committee is preparing to investigate one federal judge in Minnesota (a Reagan appointee, oddly enough) simply because it believes the judge is too lenient on convicted drug offenders.

Further restrictions on their power to avoid such results will likely aggravate them even more. The result may be that these judges either adopt unprincipled ways to achieve what they perceive to be fair sentences, or grow increasingly discouraged about the decency of the system in which they play an essential part. Either outcome is one to be strongly avoided if at all possible.

The Advent of the U.S. Sentencing Guidelines Earlier Reduced Judges' Discretion

The new proposed restrictions cannot be understood except against the background of the restrictions that are already applicable. Thus, to understand the dilemma of the contemporary federal judge, when it comes to criminal sentencing, requires a little history.

A generation ago, federal judges enjoyed virtually unfettered discretion over sentencing. For most federal crimes, Congress established extremely broad sentencing ranges, and judges could impose sentence anywhere within those ranges.

In theory, this system had the virtue of allowing judges to craft sentences appropriate to the unique circumstances of every crime, and every individual defendant. In practice, however, it resulted in glaring inequities, as different judges imposed radically different sentences in situations that looked very much alike.

Thus, a convicted bank robber with no prior criminal record might get probation before one judge, and twenty years in prison before another. That meant that the fate of a criminal defendant often depended to an extraordinary degree not on an objective assessment of what sentence would achieve the underlying aims of the criminal law (such as deterrence or rehabilitation), but rather on the subjective approach of whichever judge a given defendant happened to draw for his case.

Since a crucial legal concept is that like cases should be treated alike, this was not only a serious unfairness from a moral point of view, it was also a serious problem for the law. Law is supposed to cabin, at least to some extent, life's arbitrariness - not produce it.

To cure this problem of sentencing disparity, experts in the field convinced Congress to set up a system of mandatory sentencing guidelines. These "U.S. Sentencing Guidelines," they urged, would limit the discretion of federal judges and try to ensure, generally speaking, that similarly situated defendants who committed similar crimes indeed received similar sentences - no matter what judge they happened to appear before.

The U.S. Sentencing Guidelines: A Good Idea, But a Highly Flawed Execution

Here's, in a nutshell, how the system now works: A U.S. Sentencing Commission sets guidelines for how judges should choose from the range of possible sentences Congress has provided for a given crime. Judges must follow these guidelines.

At the risk of some oversimplification, the Guidelines provide a sentencing range for every case once the judge plugs in two factors: the severity of the offense committed by the defendant, and the defendant's individual criminal history. Unfortunately - but not surprisingly, it has turned out to be terribly difficult to reduce the severity of a criminal act and a defendant's specific moral culpability in that act to a numerical score.

In part, the difficulty stems from the inherent subjectivity of trying to rank the severity of different crimes. After all, how does one compare the severity of a widespread telemarketing scheme to rob thousands of old people of their savings, with the severity of an armed bank robbery where no one is injured?

Such intrinsic problems, moreover, are substantially compounded by the political judgments reflected in the Guidelines. Drug crimes are a glaring example. Experts in criminal law, for the most part, believe that drug crimes are over-punished, given the aims of the criminal law. Yet the offense severity ratings in the federal Guidelines cater, instead, to the political popularity of throwing the proverbial book at drug offenders.

Federal Judges' Legitimate Concerns with the Current Sentencing Guidelines

In any event, federal judges naturally chafed at these new limits on their sentencing authority. Some of this chafing was surely parochial - pure resentment at seeing a substantial part of their time-honored power transferred to a bureaucratic commission. But judges also had a plethora of very legitimate concerns.

As noted above, the fundamental aim of the Guidelines is to provide for uniformity and consistency in sentencing. That aim is laudable. But it is also in tension, to some extent, with the fundamental aim of the conscientious judge - which is to assess all the facts and circumstances in a given case and to hand out an individualized, rather than a one-size-fits-all, brand of justice.

Judges don't like to feel like robots, because they believe, for good reason, that justice shouldn't be robotic. Yet that is just how the Guidelines made them feel.

Indeed, for no small number of judges, the Sentencing Guidelines - especially as augmented by the harsh mandatory minimum sentences that Congress imposed for even mundane drug offenses - turned the process of criminal sentencing into a weekly nightmare. Simply put, many judges found themselves forced to impose sentences that they themselves considered morally wrong.

As might be expected, some of these judges strained against the straightjacket of the Guidelines. Accordingly, they sought ways to re-establish some judicial discretion over sentencing by "departing" from the Guidelines in cases they deemed unusual. The Guidelines explicitly authorized some such "departures." But there were questions as to what the basis for departure had to be: Did the Guidelines have to spell it out? Or could a judge have his or her own basis?

Somewhat unexpectedly, judges who did seek to depart for their own reasons found a sympathetic ear at the Supreme Court.

In Koon v. United States, the Court ruled that federal judges could go outside the prescribed guideline sentencing range on the basis of a factor not mentioned in the Guidelines. However, a judge could only do so if "after considering the structure and theory of both the relevant individual guidelines and the guidelines taken as a whole," the judge believed that this unmentioned factor made the case at issue an unusual one. (In Koon itself, the trial judge in the Rodney King beating case had given one of the convicted police officers a substantial downward departure based on unmentioned factors).

Koon, in short, put some discretion back into federal sentencing, affirming that it was not as robotic as the Guidelines' invitation to mechanical application of their rules might suggest. As a result, it became the safety valve for the well-intentioned federal judge. It gave that judge a legitimate method for expressing an individualized sense of justice in the unusual case. In short, where necessary, it let that judge, in exercising the most awesome power a court holds - the power to deprive a person of his liberty - to act as a judge, and not merely a human calculator applying a pre-set sentencing algorithm.

Post-Koon, Judges Do Depart From the Guidelines Sometimes - and That Is Good

Commentators indicate that federal judges, in the wake of Koon, now depart from the Guidelines in 10-15% of cases. The judges who do so range across the ideological spectrum, and across all levels of judicial experience - indicating that the impulse to depart may have more to do with a judge's responsibility of doing his or her job or judging, than with politics.

Yet to some in Congress, this divergence reflects an unconscionable rebellion. Even the most minimal departure from the Guidelines draws ire.

Consider the Minnesota judge the Judiciary Committee wants to investigate. He is criticized for having sentenced a young drug offender to the mandatory minimum 10 years in jail, rather than the 10 years and one month called for in the Guidelines. It is outrageous that Congress is thinking of intervening with federal judges' independence to quibble over one month. Similarly, in another case, this judge cut 9 months off a guideline minimum sentence of 57 months, and drew Congressional anger.

In truth, these departures reflect no heresy. Rather, most of the time, they simply reflect the moral imperative that judges feel to do their jobs in accord with their own consciences, and their own concept of judging. That is an imperative we should not squelch, as Congress seems bent on doing. Conscientious judges are the best kind - and that is a principle beyond politics.

In short, the voices of these judges represent a vital check on a Guidelines system that elevates uniformity over individualized justice. Uniformity is important, but not when it becomes so mechanical that justice is thwarted. Judges realize that, and that's why they depart.

Conscientious Sentencing Won't Be Perfect Sentencing, But That Is Acceptable

True, on occasion, the current system requires us to accept a sentence that seems incomprehensible. But that is a reasonable price to pay for keeping a balance between the numbers game of guideline sentencing, and the judicial enterprise of fitting the punishment to the unique circumstances of every crime. In short, it is the price we pay for letting judges be judges.

Beyond this question of policy, moreover, allowing for some measure of sentencing discretion is essential to preserving the quality of our district court judges. A system that renders judges utterly helpless to correct what they see as palpable and avoidable injustices is bound to failure.

Rather than be an indispensable party to the handing out of unjust sentences, some judges will find less scrupulous ways to impose their moral views on cases. Others will simply come to resent their jobs. And some excellent attorneys will turn away from the job of being a judge - already a financial sacrifice, some may see it as a sacrifice of morality and conscience too, if Guidelines must be robotically applied. In any of these scenarios, it will be our loss.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.