Mandatory Sentencing

Rules shackle judges' hands

Criticism: The two-decade-old mandatory term requirements are under fire from judges, although political support seems stronger.

January 11, 2004|By Michael Hill | Michael Hill,SUN STAFF

The problem was this. In one federal courtroom, a judge handed out a sentence of 10 years. In another, someone charged with the same crime got a two-year sentence.

"The feeling was judges simply had too much discretion," says Erik Luna, an associate professor at the University of Utah College of Law. "You had `Hang 'em High Harry' and "Set 'em Loose Bruce.'"

The solution, crafted in the 1980s by a coalition of senators that stretched across a broad spectrum from Strom Thurmond to Edward M. Kennedy, was a set of regulations designed to ensure that the punishment fits the crime.

Two decades later, many think the federal mandatory sentencing guidelines are not working.

In the past few months, there has been a minirevolt against the guidelines among federal judges in New York, where one judge noted them as a reason for his early retirement, another was removed from a drug case because of his criticism of the guidelines, and another sought to block a provision of the sentencing guidelines statute that gives Congress access to certain court records.

Recently, 27 federal judges from around the country signed a statement calling for repeal of the guidelines. And Supreme Court Chief Justice William H. Rehnquist used his end-of-the-year assessment of the state of the judiciary to lash out at Congress' latest sentencing requirement.

"The intentions were good," Luna says of the sentencing guidelines. "But they fulfill the old saying that the road to hell is paved with good intentions."

Says Frederic N. Smalkin, a semiretired judge in the U.S. District Court in Baltimore and a teacher at the University of Maryland School of Law: "One law Congress can't change is the law of unintended consequences."

The criticism of the mandatory sentencing guidelines are legion: that in trying to make the punishment fit the crime, they do not make it fit the criminal; that they jam federal prisons with people who shouldn't be there; that they rob judges of the ability to do their job to exercise judicial discretion.

But political support for the guidelines seems to get stronger. Last year, Congress put an amendment on the popular Amber Alert law aimed at tracking down kidnapped children that requires the Justice Department to keep a list of judges who squeeze through one of the guidelines' small loopholes and give out sentences that are below those mandated.

This is what infuriated Rehnquist, who said that compiling the list "could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties."

James Whitman, a professor at Yale Law School, says he expects such criticism to fall on deaf ears. "It is very easy to run on a tough-on-crime platform," he says of politicians who champion such measures as this list.

"Those platforms always take as their target the criminal defendant in the abstract," says Whitman, author of Harsh Justice: Criminal Punishment and the Widening Gap between America and Europe. "That's how you stir up voters. It is very hard to feel sympathy for the criminal in the abstract, but when you actually see the individual offender before your eyes, as judges do, you often have a very different reaction."

The differences in those reactions drew the scrutiny of legislators in the 1970s. Those on the right thought judges were being too lenient. Those on the left feared that judges were exhibiting racial and other prejudices in their sentencing. The Justice Department encouraged Congress to do something about it.

The result was the 1984 law that set up a commission that came up with the mandatory sentencing guidelines. Criticism often starts with that name. How can they be guidelines if they are mandatory? "It's a wonderful oxymoron," says Smalkin.

The guidelines went into effect in 1987. Before then, judges received extensive presentencing reports from parole officials on convicted criminals. They considered a variety of factors before imposing sentence. Crimes carried minimum sentences, but judges had discretion to suspend part of them or to make part served on probation or to take advantage of alternative sentencing options aimed at rehabilitating those deemed worthy.

"It was the most soul-searching part of a judge's job," says Luna. "The determination of guilt, the who-done-it part, is not as emotionally wrenching as sentencing, considering the question of trying to craft appropriate sanctions, a punishment that is neither too harsh nor too lenient, mindful of the community's interest and the victim's. It was hard on the heart."

"What is fundamentally horrible about the guidelines is that we appoint these highly educated judges, give them a lifetime appointment so they can be insulated from the political process and make the right decisions, and then we handcuff them and keep them from doing that," says Justin Brooks, executive director of the Institute for Criminal Defense Advocacy at the California Western School of Law in San Diego.

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