Doug Berman has a great post at his Sentencing Law Blog here showing what a federal judge can do when hitting on all cylinders.
Oregon U.S. District Judge Panner in the Detwiler case holds unconstitutional the U.S. Sentencing Guidelines on the ground that it's been captured by A-G Ashcroft's Justice Department, a branch of the Executive, despite being set up by Congress as a part of the Judiciary. A Separation of Powers conflict. Regardless of the name on the door, says the judge, the USSC is not a real part of the Judicial Branch because it acts like all the other Executive Branch administrative agencies; in fact it seems hostile to the Judicial Branch, not consulting it. Since the Commission seems so Executive Branch in character, Judge Panner says that if it walks like a duck, quacks like a duck and looks like a duck, it mustn't be a cow, despite whatever label Congress put on it.
The U.S. Sentencing Commission was set up as a hybrid agency populated by federal judges (few) and executive department employees (more). This arrangement was upheld, over the dissent of Justice Scalia, as not a violation of separation of powers. But now the equation has changed, according to Judge Panner. The Commission has been ignoring the views of the judiciary. It's new rules (the Feeney Amendment) are a product of A-G Ashcroft's office. That, in Panner's judgment, undermines the basis on which Mistretta was decided, so he doesn't follow it.
The problem in sentencing has been that no matter how you arrange the process, it often seems so arbitrary and capricious in result. Two prisoners warehoused in the same cell for bank robbery, for example, one serving five years and the other twenty. Why? Myriad factors.
The problem starts with the legislatures (state and federal). Representatives always want to appear tough on crime. It would be better if they wanted to be smart on dealing with crime, but that's not how it works in the world of politics.
So the legislature, any legislature, in response to some terrible, tragic crime, enacts a law like California's Three-Strikes and you're out, just as though we're playing baseball. Voter appeal but not thought appeal.
Congress set up the Sentencing Commission to write some guidelines. The result is a thick volume of rules resembling the tax code. You need to be an accountant to follow them. Each factor is worth a number of points which all add up to months in the penitentiary regardless whether a judge in her right mind would want to stack all the factors against the defendant standing before her. Judgment requires a judge to downplay some factors and up-play others. Under the guidelines, everything counts. Judgment of the judge has been eliminated, reducing federal judges to clerks following what the real experts in federal sentencing recommend. Those are the probation officers who spend a lot of time going over the guidelines. Certainly more than many attorneys in private practice who represent in an occasional federal criminal case and have to come up to speed again, each time.
The only way out of the Guidelines is to snitch off a bigger fish. But suppose there is no bigger fish? Suppose you're the big fish? Then you're stuck for the full ride.
On the rear inside cover of the Guidelines is a chart listing categories of criminal history across the top. Down the left margin are the specific offense factors, such as quantity of loss in a theft case, or drugs in a narcotics case. You get points for being a leader in the criminal enterprise, showing sophistication, etc. Each crime in the U.S. Code is listed either specifically or generally. Much as using a mileage guide on a map, the intersection of criminal history and offense characteristics tells you how long you are going away for, no ifs, ands, or buts.
Wonderful, you might say, you do the crime and you serve the time.
Not so wonderful in the real world where people do stupid things as well as evil. Here is where the judgment comes in. We try to punish evil more than we punish stupid.
But the judgment is being made in Washington, at the Sentencing Commission, which is under the control of the prosecutor's office. The judge has been locked out. Just when you want to see judgment, you see cut-and-dried. So you appeal to the prosecutor to use judgment, since there's little point in talking to the judge who feels handcuffed by the Guidelines. And trying to persuade a prosecutor to lighten up on someone he regards as evil is a difficult proposition, especially where the defendant is not in a position to make the prosecutor's job easier or more fruitful by snitching off the next guy up in the criminal food-chain. So you need a judge. But the judges have been handcuffed. Until Blakely, that is. And until decisions like Judge Danner's in Oregon.
Who should have the most influence on sentencing? The prosecutor? The judge? How about the jury?
I recall a forcible rape case I prosecuted years ago in California. The jury was hung when they compromised, despite injuries and torn clothing, and called the offense "statutory rape," meaning consensual. But the jury had the sentencing power then on that crime and ruled that those convicted should go to the state prison instead of the county jail, based just on the facts of the offense, without any probation report.
California, years ago, had something called indeterminate sentencing. Sentences for some offenses ranged from five years to life, for example. That's pretty indeterminate. You don't know when you're going to get out. That was decided after you got there, to prison, by the Board of Prison Terms, which kept statistics on how long people stayed in prison for different crimes. You came up for parole. Eventually you got out, most of the time, if your name wasn't Charles Manson or Sirhan Sirhan. Or you weren't riding a silent beef. That's a murder they couldn't pin on you but knew you did anyway.
Indeterminate sentencing, thirty years ago, was considered a Dark Ages solution. Liberal thought had it that sentencing should better be determinate. So the California legislature abolished most indeterminate sentencing, leaving life crimes as the exception, that is where the maximum is life, and instituted a range of certain sentences.
It works like this. For each offense in the penal code, three punishments are provide if the defendant is sentenced to the state prison instead of up to a year in the county jail as a condition of probation, the CJ time being specified as so many days or months. So, for example, a crime might carry a sentence of 3, 5 and 7 years in state prison. The judge is supposed to start with the mid-term of five years and then look to factors in aggravation or mitigation before deciding whether to impose the higher or lower terms.
One of the things the new U.S Supreme Court decision in Blakely has done is to call into question whether the judge can now look at factors in aggravation not decided by a jury. If the jury convicts someone of a crime committed by several people, but the verdict form doesn't ask it to decide who played a leadership role, an aggravating factor, is the judge allowed to decide who the leader was? Traditionally the judge did. No longer under Blakely, if I understand Blakely right.
Some 1200 federal defendant are sentenced each week. I don't know how many local defendants are sentenced each week, but it's got to be a large number. Until Blakely is explained better by the Big Court, a lot of folks are up in the air. Booker and FanFan are the cases argued Monday in the Supreme Court. The Sentencing Guidelines are at risk of being thrown out. Judges may be put back in the business of using their judgment. Defendants will be sentenced by Article III judges, not prosecutors and probation officers, the way the Founders intended, if I understand that history right.
A shining new day may be before us.
Not that federal judges are pushovers, or all see crime lightly. There goes the shine.
But if there's one thing in which federal judges do, and in which they can take pride, it is using their independent judgment. That's why the Constitution was set up to make their positions lifetime jobs from which they cannot be removed unless impeached for serious misconduct.
It would be refreshing to see the federal bench back in the business of using judgment tempered by humanity as opposed to noting where you landed on some prosecutorial body's matrix.
An odd wrinkle is that one of the contributors to the drafting of the original sentencing guidelines is Justice Stephen Breyer, who now sees his effort coming back to haunt him in the sense the Guidelines have been heavily criticized, for many years. As I read his opinions, he has a high regard for the effort Congress makes in good faith to draft reform legislation for the nation. Lord only knows how he's going to regard dumping the Guidelines after an awful lot of experience has shown them to be no better, and probably a lot worse, than the Judgment-for-Judges system that it unfortunately replaced.
The Guidelines were supposed to promote uniformity in sentencing, to eliminate the situation of the two bank robbers, one doing five and the other doing twenty years. Do you think the Guidelines have accomplished that? I doubt they have. More likely they've simply added more ways to increase the disparity.
So the question comes down to this. Assume you're coming up for sentencing in federal court. Do you want to be sentenced by a real, live judge with a beating heart and a functioning brain, someone whom you're lawyer can appeal to with facts and reason?
Or would you rather have your sentence "controlled by those bureaucrats in Washington," who set the Guidelines high enough to wrap up the worst sort of person who committed your type of offense?
Well, we could dump all the crimes into a computer and let the computer decide, couldn't we? What do you think the Guidelines represent? A computer program, in book form, that's all. Just look at the rear inside cover, the distance and mileage, and see where you come out. Very neat. Justice on the last page. The bottom line, as it were.
We can do better than this.
