We like our judges to have discretion to bend the rules in favor of humanity, particularly when it comes to the example of humanity we are representing, our client, who may or may not deserve it. It's our job to show why he does. The prosecutor's job is often to show that s/he does not.
The result is a great disparity in sentencing. Two bank robbers in the same cell may be doing vastly different amounts of time for the same kind of crime, robbing banks. The difference, of course, is not whether you robbed the bank where the judge keeps his money, but in how many banks you robbed this time. When I was on the federal indigent defense panel I was asked to represent the guy who robbed the bank below my office, where I knew some of the tellers. No thanks, I replied. Too close to home.
Another time I was appointed to represent a 6' 7" bank robber who had been caught fleeing the scene. He'd been tackled by a civilian of middling height who years later turned up at a dinner party at my house. He was a British SAS veteran. That would be like our Special Forces guys who are not scared of bank robbers, even if quite tall.
In that case the robber was looking at 20 years in the federal penitentiary. But he cooperated against the others in the ring he'd lately joined and they were all sent away. Now it came time for him to be sentenced. The prosecutor asked for something like fourteen years. I objected and we had a hearing in the judge's chambers. "In a system that depends on snitches to gain convictions," I told the judge, you have to give the man a significant break, otherwise the word will get out and the next guy you want to cooperate won't." The judge gave him a couple of years.
Congress, any legislature, for that matter, likes to impose mandatory minimum jail sentences to show the voters that it is tough on crime. The lawmakers say they are trying to protect the public this way and do something about crime.
The other day a 21-year-old woman standing at a bus stop in San Francisco was crushed to death by an out-of-control vehicle following a collision. One of our vaunted state legislators, Leland Yee, a Ph.D. in psychology was interviewed on the news about how he was going to do something about this sort of tragedy recurring in his district. Wow, I thought, I know that dangerous intersection. I wonder whether he's going to put up a barrier or a pedestrian overpass, or what, so I tuned in with great interest. Yee's solution? He was going to introduce new legislation in Sacramento to increase the fine on motorists who commit driving violations. Well thank you, Leland, with legislators like you on the job we can all sleep easier knowing that you are going to protect us against evildoers. He can stick it in his pipe and smoke it.
To protect against sentencing disparities, Congress established the U.S. Sentencing Commission around 1980 or so. In 1982 they came out with their guidelines, which weren't guidelines as they were mandatory. Stephen Breyer was the lawyer and chief draftsman for this book, which took all the federal crimes and assigned so many months in prison for each violation, subject to being increased for however bad the persons criminal history had been. At the end of the volume, on the rear inside cover, was a matrix containing numbers indicating how many months in prison a person would do if his crime fell into this or that category running down the left side of the page, and the cross-referenced category of criminal history across the top.
Defendants were rated on such things as "excessive taking," "breach of trust," "leadership position" and the like. Wherever you landed, that's what you got, in months. You could still have two bank robbers in the same cell doing vastly different amounts of time.
Judges hated the guidelines because it turned them into accountants and clerks instead of people who used their judgment based on years of experience dealing with people.
A few years ago the Supreme Court threw out the guidelines on the ground that a lot of those things such as "excessive taking" had not been proved to a jury and found true. The decision was based on what the judge believed after reading a probation report containing hearsay, conclusions, biases, and other nonsense.
So now the guidelines are no longer mandatory, but discretionary.
But the attack continues on the man-mins, the mandatory minimums imposed by Congress. The problem with Congress controlling the sentencing discretion of the judge is that the judge cannot make exceptions in deserving cases, of which there are always some.
For example, California has this Three Strikes law in which people who have stolen a slice of pizza to eat go away forever. If you own the pizza shop you might think that just, but others of us may take a more lenient view.
So now there's a case before the Supreme Court testing the question whether a federal judge retains sentencing discretion to ignore the mandatory minimums in a deserving case or whether Congress has handcuffed him in his sentencing discretion. At least that's what I think the issue may be, not having studied the case on appeal. There may be many aspects of the same issue and the issue may take different forms by the time it is decided.
Linda Greenhouse, the NYT Supreme Court reporter, has this article below.
Justices Take Up Discretion of the Courts in Sentencing
Justices Take Up Discretion of the Courts in Sentencing
WASHINGTON, Oct. 2 — Since 2000, in a patchwork of closely fought and inconclusive decisions, the Supreme Court has been wrestling with the question of how much discretion the Constitution permits judges to exercise in criminal sentencing.
All the tensions and internal contradictions of that seven-year effort were on display in the courtroom Tuesday when the justices took up the issue of what should happen when federal judges refuse to follow the federal sentencing guidelines.
That question, simple enough on the surface, goes to the heart of the shaky compromise the court achieved two years ago when it preserved the constitutionality of the guidelines by making them “advisory” rather than mandatory, while not explaining what advisory was supposed to mean.
In the cases before the court Tuesday, one federal judge gave a reformed drug dealer a sentence of three years’ probation, rather than the three years in prison called for by the guidelines. Another judge, declaring that it would be “ridiculous” to sentence a man to the guidelines’ range of 19 to 22 years for a crack cocaine offense, imposed a sentence of 15 years, the lowest available given the mandatory minimum set by federal statute.
In both cases, federal appeals courts rejected the sentencing judges’ leniency and told them to try again.
In the first case, the United States Court of Appeals for the Eighth Circuit, in St. Louis, said that such an “extraordinary” departure from the guidelines — no prison time at all — required an “extraordinary” justification. The appeals court rejected as insufficient the judge’s explanation that the defendant, Brian M. Gall, a college student while he was part of an Ecstasy distribution ring, had extricated himself from the conspiracy after eight months and had gone on to graduate, start a business and lead a productive life.
In the crack cocaine case, the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., said judges did not have the authority to reject a guidelines sentence on the basis of their own disagreement with the underlying sentencing policy. The policy at issue was the disparate treatment of offenses involving cocaine in its crack and powder forms. It takes 100 times as much powder as crack to bring the same mandatory minimum sentence under federal drug law, as well as to reach the same offense level under the sentencing guidelines.
There is nothing that judges can do about mandatory minimum sentences that are fixed by federal law and that, for example, impose the same five years for possession of five grams of crack, about one-fifth of an ounce, as for 500 grams of powder, more than one pound. The sentencing guidelines, incorporating the same ratio, come into play in cases that place the offender either under or over the minimum, and judges have been taking the guidelines into their own hands by refusing to follow them.
The United States Sentencing Commission, for its part, has agreed for years that the crack-powder disparity is misguided. Its current recommendation for easing the disparity under the guidelines by about one-quarter is now before Congress, and will take effect on Nov. 1 unless it is blocked. The change has wide support in Congress, where a half-dozen bills are pending to reduce the mandatory minimum disparity as well.
The justices’ challenge in both of the day’s cases was how to achieve seemingly irreconcilable goals: to ensure that similar defendants receive the same treatment for similar crimes — the original intent of the sentencing guidelines system — while restoring to judges a measure of discretion now that the guidelines are merely “advisory.”
“Indeed, it may be quite impossible to achieve uniformity through advisory guidelines, which is why Congress made them mandatory,” Justice Antonin Scalia observed.
Two years ago, in United States v. Booker, the court ruled that the mandatory guidelines gave judges too much fact-finding responsibility, violating the Sixth Amendment right to trial by jury. Making the guidelines advisory as a way of saving them was a compromise that now looks threatened.
The Booker decision made it “crystal clear that to avoid the Sixth Amendment problem with the mandatory guidelines, judges must be free to disagree with the guidelines,” Michael S. Nachmanoff, the lawyer representing the crack cocaine defendant, Derrick Kimbrough, told the court.
Justice Stephen G. Breyer, an original author of the guidelines and the system’s most fervent champion on the court, objected that Mr. Nachmanoff was not offering a way out. “You’re saying either we have to make it unconstitutional,” he said, “or you have to say anything goes.”
Justice Scalia, whose distaste for the guidelines is evident, came to the lawyer’s rescue. “Your position is not anything goes,” he said. “It’s anything that’s reasonable goes.”
This led Justice Anthony M. Kennedy to ask, “How do we define ‘reasonable?’” The question seemed to bring the argument back to where it began.
Michael R. Dreeben, a deputy solicitor general, argued for the government in both cases, Gall v. United States, No. 06-7949, and Kimbrough v. United States, No. 06-6330.
He warned the court against “wholesale abdication to the district judge,” which he said would lead to unacceptable variations in sentences.
Comments