Sentencing a defendant is—or should be—one of the most important moments in the criminal justice system. After all, it is when state power confronts an individual. With my words of authorization, a citizen’s liberty is extinguished, often for extraordinary periods of time.
The sentencing reforms of the 1980s seemed so rational. What could be wrong with giving judges "guidelines" for sentencing, to replace the standardless—some would say lawless—indeterminate sentencing regime of the past one hundred years? What could be wrong with eliminating "unwarranted" disparity in sentencing—where defendants, similarly situated with respect to the offense of conviction—were sentenced to widely different terms? And surely, what could be wrong with eliminating or minimizing racial disparity in sentencing? What could be wrong with an expert sentencing commission, above the political fray, promulgating guidelines after careful study and research? Finally, what could be wrong with "truth in sentencing"—a system that eliminates parole, that ensures that the sentence given by the court is the sentence served by the defendant?
The devil, as they say, was in the details. While sentencing prior to the Sentencing Reform Act of 1984 (SRA) 18 U.S.C. §§ 3551 et seq., was far from perfect, criticism of the federal sentencing guideline regime has come from all corners of the legal profession, including the judiciary and academia. In fact, prior to Mistretta v. United States, 488 U.S. 361 (1989), when the U.S. Supreme Court settled the issue, 200 judges declared the guidelines unconstitutional. Significantly, not a single state system that has adopted sentencing guidelines has selected the federal model. Indeed, for a number of state commissions, among the first admonitions made to their commissioners is: Don’t copy the federal guidelines if you can avoid it!
Why does the federal model raise these concerns? The problem was not the statute; the SRA, which, although vague and often inconsistent, sounded many of the right themes: Congress called for sentencing reform that would be effective in implementing all of the purposes of sentencing—not just the punitive theories now in vogue, like "just desserts" or incapacitation, but also the old fashioned ones, like rehabilitation and deterrence. It reaffirmed the parsimony principle—that a judge is to impose a sentence only long enough to achieve the purposes of sentencing, but no longer. It recognized that while uniformity and the elimination of "unwarranted disparity" was important, so too were proportionality and individualized sentencing. Fair sentencing policies must not only avoid "unwarranted disparities: among defendants similarly situated with respect to the offense, but also maintain sufficient flexibility to permit individualized sentences. . . ." 28 U.S.C. § 991(b)(1)(B). And while alarms were sounded about runaway judicial discretion, the legislative history also underscored the importance of "the thoughtful imposition of individualized sentences." Judges were authorized to depart from the guidelines when the individual case required it because of "mitigating or aggravating factors not taken into account in the establishment of general sentencing practices." Finally, the SRA called for the creation of a new agency, the U.S. Sentencing Commission (Commission), an ostensibly neutral, expert body, tasked with carrying out these principles, after careful and dispassionate study.
But the guidelines the Commission invented, in many respects, undermined the lofty ideals of the statute and gave birth to the model from which all state commissions have fled.
Severity of the Guidelines
The Commission never claimed that the rules they were implementing achieved any of the objectives of sentencing. They merely adopted past sentencing practices—or rather, they said they did. In fact, the Commission never studied the actual sentences that judges imposed. They identified a priori the factors they were interested in—for the most part, offense factors, like drug quantity and criminal record—looked for those factors in the presentence reports they studied and correlated them with final sentences. Not surprisingly, the guidelines gave short shrift to issues that had always mattered to judges in deciding how culpable an offender was, like mens rea, a history of addiction, family background, and mental health. Faced with this problem in sentencing a group of defendants, I stated:
[While] the Guidelines’ emphasis on quantity and criminal history drives these high sentences, sadly, other factors, which I believe bear directly on culpability, hardly count at all: Profound drug addiction, sometimes dating from extremely young ages, the fact that the offender was subject to serious child abuse, or abandoned by one parent or the other, little or no education. Nor may I consider the fact that the disarray so clear in the lives of many of these defendants appears to be repeating itself in the next generation: Many have had children at a young age, and repeat the volatile relationships with their girlfriends that their parents may have had. And I surely cannot evaluate the extent to which lengthy incarceration will exacerbate the problem, separating the defendant from whatever family relationships he may have, or the impact on communities when these young men return.
United States v. Lacy , 99 F. Supp. 2d 108, 111 (D. Mass. 2000).
In dealing with offenses that had mandatory minimum sentences, the Commission set the guideline sentences even higher. In fact, the categories in which the Commission deviated from past practice outnumber all others. In a word, they upped the penalties, without ever explaining why. As a result, the federal incarceration rate skyrocketed. Although before the guidelines nearly 50 percent of federal defendants were sentenced to probation, afterwards it was less than 15 percent. All experimentation with alternatives to incarceration and innovative approaches to sentencing, like restorative justice, was necessarily squelched. While other criminal justice systems—other states, and other countries—ask the eminently reasonable question, what sentences work to effect rehabilitation or deterrence, much less what sentences have an impact on the crime rate, the federal system simply stacked penalties. The only decision was: Are you going to jail (yes, for most offenders), or are you on the street?
The Less than Transparent Commission
And these decisions—fundamental policy decisions—have been made by a Commission that was hardly above politics. The Commission’s membership reflected the political divisions of the time. It was, as Justice Scalia described it, a "junior varsity legislature." But unlike their senior varsity counterpart, the Commission’s proceedings were less than transparent. The statute exempted the Commission from most of the Administrative Procedure Act; only the "notice and comment" provisions apply. What this means is that rules about snail darters may be challenged in court to see if they are arbitrary and capricious, but guidelines about liberty may not. Often guidelines are changed without the Commission providing a meaningful justification for the change—in terms of empirical studies or the policies underpinning them. Although the most recent Commission has been much more open, critical decisions are still made with little public visibility or accountability. Guideline amendments become effective within six months unless Congress rejects them. The congressional review process is rarely elaborate. It took only a single day’s hearing in the Senate, and six days’ hearing in the House, to accept the initial guidelines, all hundreds of pages of it.
The Grid Promotes Grid-like Responses
The sentencing guidelines are extraordinarily complex. The guidelines manual consists of more than 900 pages of technical regulations and amendments. The centerpiece is a 258-box grid called the "Sentencing Table." The horizontal axis of this grid, "Criminal History Category," adjusts severity on the basis of the offender’s past conviction record. The vertical axis, "Offense Level," reflects a basic score for the crime committed, adjusted for those characteristics of the defendant’s criminal behavior that the Commission has deemed relevant to sentencing. The box at which the two intersect determines the range within which the judge may sentence the defendant, and a relatively narrow range at that.
Over the past fifteen years, we have seen that the grid invited "grid-like" responses. Even where the case cried out for a departure from the guidelines, judges—many of whom had resoundingly criticized the rigidity of the guidelines—refused to exercise their discretion. Even where the words of the manual were vague—what is an "otherwise extensive organization," a "vulnerable victim," or what do the guidelines mean when they say that family circumstances are not "ordinarily" relevant—judges abdicated all responsibility to create a common law of sentencing. Too often the judge intoned: "I believe the offense is benign but I have no choice but to sentence you to this extraordinarily harsh sentence." Sometimes it is true; often it is not. In a busy court, when any show of leniency risks mention on the evening news, it is far easier and less controversial to just stay within the lines.
Where the judge does depart, he or she is subject to appeal, and confronts a court that likely is enforcing the guidelines with a rigor not contemplated by the drafters, nor required by the text. (Failure to depart is not reviewable; the message is clear.) The SRA provided that trial court departure decisions were to be reviewed by the circuit courts for their reasonableness and their fealty to the underlying purposes of sentencing. As Kevin Reitz has noted, compared to state systems, departure decisions by federal trial judges face a high probability of reversal on appeal. Indeed, courts of appeals have fallen into a technocratic practice of enforcing the four corners of the federal guidelines manual and deferring excessively to the Commission. The result is that they have "left little space for creativity" of the trial bench and have abdicated their own responsibility for common law rulemaking. Kevin R. Reitz, Sentencing Guideline Systems and Sentence Appeals: A Comparison of Federal and State Experiences, 91 Nw. U. L. Rev. 1441, 1450 (1997).
The Second String Fact-Finding Process
Although sentencing has changed dramatically, neither the Commission nor the courts have been willing to reshape the procedural rules in any fundamental way. Sentencing has always been less formal than trial proceedings—hearsay could be admitted, even illegally obtained evidence, and the standard of proof was the lowest, a preponderance of the evidence. It has been said that the criminal justice revolution of the 1960s and 1970s stopped at sentencing.
But with the guidelines, the consequences of fact finding are onerous. More and more issues of consequence are being decided by what Gerald E. Lynch called "a second string fact-finding process." Gerald E. Lynch, The Sentencing Guidelines as a Not-So-Model Penal Code, 10 Fed. Sent. Rep. 25 (July/Aug. 1997). You can be sentenced on counts for which you have been acquitted, or not charged. An acquittal, so the U.S. Supreme Court has said, "only" means that a jury found a reasonable doubt. A judge can take another look at the same facts, because the standard of proof at sentencing is lower. You can be sentenced for the wrongful acts of others, even if you did not fully participate in them. The courier who only watches the drug pile could be responsible for the amount in the pile.
For most defendants, this sentencing process is all they see of the criminal justice system, not our vaunted jury system. Over 90 percent of criminal cases are resolved by guilty pleas, at which time defendants confront a judge who far too often, just "does the math," situates the defendant on the grid, and sentences, no matter how anomalous or harsh the results.
Endurance of Disparity
Nor has "unwarranted" disparity disappeared. There is regional disparity. Different offenses are charged differently by prosecutors, and treated differently by the judge in different parts of the country. Departures are more welcomed in certain circuits than in others. And where judicial departures are discouraged, the prosecutor steps in to exercise his or her discretion, without visibility, often without meaningful review.
Significantly, racial disparities persist. Black and Hispanic defendants are more likely to be charged and convicted pursuant to mandatory minimum drug laws. In 1991, the Commission submitted a report to the Congress that determined that in cases where a mandatory minimum sentence was applicable whites were sentenced below the applicable mandatory minimum in 25 percent of the cases. Blacks were sentenced in 18 percent and Hispanics only 11.8 percent. The Commission reported that the statistically significant relationship between race and sentence remained even after considering the nature of the offense and the prior criminal record of the defendant. United States Sentencing Commission, The Federal Sentencing Guidelines: A Report on the Operation of the Guidelines System and Short-Term Impacts on Disparity in Sentencing Use of Incarceration, and Prosecutorial Discretion and Plea Bargaining 23 (1991).
In part, the problem is the 100:1 differential in the sentencing between crack cocaine and cocaine powder: White defendants are charged with the distribution of cocaine powder, black defendants with crack. But it goes deeper. The guidelines’s emphasis on criminal history enhances whatever inequities were embodied in past sentences. I sentenced a man for the crime of "felon in possession of a firearm," whose criminal record scored high on the guidelines. When I looked closely, I noticed that all the scored offenses were nonviolent, traffic offenses—for instance, driving after his license was suspended. And then I wondered: Since no other traffic offense accompanied the license charges, how did the man get stopped? I strongly suspected "Driving While Black." I departed downward, refusing to give literal credit to the record. United States v. Leviner, 31 F. Supp. 2d 23 (D. Mass. 1998).
Likewise, I have been concerned about the stereotypes—cultural, racial, gender—that lurk in departures such as those for "extraordinary" family obligations. In United States v. Thompson, No. 98-10332 (D. Mass. Feb. 19, 2002), I found that of the forty-eight cases in the District of Massachusetts in which downward departures were given, just over 60 percent were in white collar cases, largely involving defendants with advantaged backgrounds. By contrast, during the comparable period only 27 percent of the sentencings in this district were for white collar offenses. Poor defendants—largely African American—were bound to suffer by comparison with wealthy or even middle-class defendants. So long as the courts apply the guidelines without careful examination, these patterns, and the stereotypes that create them, will not be exposed.
Enhanced Role of Prosecutors
The result of limiting judicial discretion is hydraulic. Discretion passes to other players in the system, and here, to prosecutors. Unless a prosecutor files a motion certifying that the defendant has provided "substantial assistance" in the investigation or prosecution of another person, a federal judge has no authority to impose a sentence below a mandatory minimum. In plea agreements, prosecutors can arrogate to themselves the absolute power to determine whether the defendant has provided substantial assistance. The decision is often veiled in secrecy. A colleague of mine described it as departures "under the radar screen."
The prosecutor has the ability—just by the way he or she charges a defendant—to bypass the more stringent mechanisms of proof under the Constitution. In United States v. Astronomo, 200 WL 1604102 (Nov. 26, 2001), the government sought to prove facts about the criminal conduct of the defendant and his prior criminal history that bore little relation to the allegations of the indictment, the facts to which the defendant pled guilty, or his actual criminal record. The government literally believed Astronomo had gotten away with murder, although it never brought such charges, or even bothered to investigate them. I declined to increase Astronomo’s sentence based on outlandish boasts or vague rumors.
It did not have to be this way. Other states have opted for "guidelines," that are really guidelines. They give judges discretion to depart from the guidelines with reason and encourage appellate courts to endorse such decisions. The state commissions take the lead in monitoring important trends in sentencing patterns—racial disparity, prison capacity—and where necessary, suggest reforms. Prosecutors don’t sit alone in the driver’s seat.
Consider again the moment when state power confronts the individual. The decision to prosecute is veiled in secrecy. You plead guilty because your chances of success before a jury are minimal. In a sentencing proceeding with few procedural safeguards, hearsay and vague generalizations in police reports pass for proof. The judge tells you that you are at a base offense level of thirty-two and have a criminal history score of VI. The guidelines he or she feels obliged to follow were "passed" by a Commission with a perfunctory explanation, without background materials, legislative history, or data. And they were approved by a Congress without in-depth review. Your background may suggest a host of things that make the likely sentence profoundly unjust, but your circuit discourages departures, however reasonable. The judge announces that your sentence is 151 months. The only explanation the judge gives is how he or she "did the math."
But what the judge has not explained is how that sentence rehabilitates or deters, or even reflects "just desserts." In other words, what the judge cannot explain is how this sentence is just, because far too often—it is not.