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February 21, 2007

Debunking some myths about the quest for sentencing uniformity

As I read the Rita and Claiborne oral argument transcripts, I am aggravated by the persistent assumptions that (1) Congress is exclusively concerned with sentencing uniformity, and (2) a guideline-centric sentencing system with judicial fact-finding is essential to achieving sentencing uniformity.  These assumptions reflect a superficial understanding of the Sentencing Reform Act of 1984, subsequent sentencing legislation passed by Congress, and the federal guidelines in operation.  Let me explain.

The text of the SRA and its legislative history show that Congress in 1984 was interested not only in greater sentencing consistency, but also in creating a more principled, reasoned and transparent federal sentencing system.  As the crack sentencing debate spotlights, slavish adherence to certain guidelines can often produce an unprincipled form of uniformity.  That why the US Sentencing Commission has repeatedly said the crack guidelines undermine the goals of the SRA.

Further, in a major report in 1991, the USSC explained to Congress that mandatory minimums in operation produce unwarranted disparity.  Nevertheless, Congress has continued to embrace mandatory minimum statutes that undermine the sensible pursuit of sentencing uniformity.  In addition, Congress has rarely sought to regulate prosecutorial discretion even though the USSC has long detailed the myriad ways prosecutorial discretion can produce unwarranted disparities.  In fact, the 2003 PROTECT Act broadly expanded prosecutorial discretion in various ways, including formally embracing different prosecutorial fast-track policies throughout the country.  Obviously, Congress has many sentencing goals beyond just achieving sentencing uniformity.

Relatedly, after Booker, Congress could have readily returned the guidelines to their mandatory status simply by declaring that guideline fact-finding should conform to Sixth Amendment.  (This is how the majority of states responded to Blakely.)  But we have now had advisory guidelines in place for more than two years, and Congress has not seriously considered any legislative fix to make the guidelines mandatory again.  This shows, yet again, that Congress has many sentencing goals beyond just achieving sentencing uniformity.

As I explain in much of my scholarship, I am a strong believer in sentencing guidelines because they can and should enhance more consistent, principled, reasoned and transparent sentencing practices.  Unfortunately, the federal sentencing guidelines often champion superficial notions of uniformity over other equally important sentencing goals (even though the SRA as reflected in text of 3553(a) & (c) and other provisions rightfully stress other critical goals).  I am hopeful that the decisions in Rita and Claiborne will be sensitive to these realities to help ensure that the federal system still aspires to achieve principled, reasoned and transparent federal sentencing justice.

February 21, 2007 at 10:16 AM | Permalink

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Comments

If the courts have so much trouble interpreting sentencing law, then criminals and potential criminals will not understand it well enough for deterrence to work effectively. Most are probably shocked when they realize their potential sentence. More important, the sentencing scheme, based entirely on punishment while discounting rehabilitation, amounts to the old Roman sound bite long before the Magana Carta and our Constitution: "Let them hate us, so long as they fear us." "Respect" is not in that equation, and it is more of a challenge than a call for social responsibility.

Rather than leaving this puzzle to the courts, it's time for Congress to revisit criminal sentencing and reinstate potential probation for first time offenders, concentrate on prior violent convictions as the only potential enhancements, and restore incentives for rehabilitation, including good time credits. Only Congress can fix this mess.

Posted by: George | Feb 21, 2007 3:35:38 PM

Note that the Senators did not ask the Court for a presumption of reasonableness in their brief.

Posted by: | Feb 21, 2007 3:58:15 PM

I agree that this requires a legislative solution, not a judicial solution. All the courts can do is prevent constitutional violations. But what's constitutional isn't necessarily what's right.

But there is no momentum in Congress for more lenient prison sentences. A majority of members either don't favor this at all, or can't risk it politically.

Posted by: Marc Shepherd | Feb 21, 2007 4:04:26 PM

"As I read the Rita and Claiborne oral argument transcripts, I am aggravated by the persistent assumptions that (1) Congress is exclusively concerned with sentencing uniformity, and (2) a guideline-centric sentencing system with judicial fact-finding is essential to achieving sentencing uniformity."

That's absolutely right, but unfortunately Congress did pass a guideline-centric sentencing system expressly to encourage sentencing uniformity. The possibility that they could've accomplished that goal some other way, or that there were other goals out there that either weren't represented in the law or were represented only in the vagueness of the parsimony provision (which a number of senators explictly said would not provide a basis for departure) or 3553a generalities is awfully slim grounds for the Court to act.

The above commentators have a point. As long as the Court will defer to Congressional intent, Congress has to change its tune and act.

Posted by: | Feb 21, 2007 4:22:15 PM

But sentencing harshness is not the same as sentencing inconsistency. The problem of crack possession being punished more severely than powder cocaine possession could be fixed by either making the punishment for crack possession less severe or making the punishment for powder cocaine possession more severe.

Posted by: katieappliestocollege | Feb 21, 2007 4:23:14 PM

Marc, you're exactly right, and the irony is that the majority of the public is not that punitive. Why are politicians afraid to speak for change when the public will support them? Poll after poll reveals majority support for a balance between punishment and rehabilitation, some common sense, but the punitopia elites have control of the debate. They "Gang Stalk" any dissent. By "Gang Stalking" I mean, for one example, exactly what we saw on the Georgia Senate floor during the debate on Genarlow Wilson to change the law. Georgia Senate President Pro Tempore Eric Johnson (R-Savannah) was, shall we say for the sake of politness, misleading. But Wison was a scapegoat for the punitpia cause. That is far from uncommon. Time to call it for what it is, and "Gang Stalking" is as good a term as any, better than most. It is, I think, exactly what they do, and the process is similar against those who disagree with them. This may be over the top for a law blog, but law is evidently more about politics than justice nowadays.

Posted by: George | Feb 21, 2007 6:04:52 PM

4:22:15 PM commentor: My chief point is that Congress created a guideline-centric sentencing system expressly to foster an array of structural and case-specific sentencing goals. Greater consistency was a very important goal, but not the only goal of the SRA. The text of 3553(a) makes this very clear.

Moreover, Booker holds that the way Congress sought to achieve its array of reform goals, to the extent this required judicial fact-finding, in a mandatory system, is constitutional problematic. Congress could --- in my view should --- simply make the guidelines mandatory again by adopting a Blakely-ization remedy. If Congress does not go this route, the Supreme Court could and should conclude that Congress is content with the operation of 3553(a) in an advisory universe.

Posted by: Doug B. | Feb 21, 2007 6:06:12 PM


>>4:22:15 PM commentor: My chief point is that Congress created a guideline-centric sentencing system expressly to foster an array of structural and case-specific sentencing goals. Greater consistency was a very important goal, but not the only goal of the SRA. The text of 3553(a) makes this very clear.<<

This point seems to verge on being trivially true. Of course Congress had more than one goal--if all Congress cared about was uniformity, then it would have just identified one sentence for all crimes. But that self-evident truth does not refute the prevailing assumption that uniformity was the paramount goal--that is, the goal to guide any interpretive effect in regard to the Sentencing Reform Act.

The fact that Congress has not acted in the past two years is not great evidence to the contrary. For one thing, Congress (unlike some state legislatures) has had other fish to fry--such as the Iraq war and among the most intense partisan conflicts in the country's history. For another thing, and as Doug often emphasizes, most of the federal circuit courts are trying to get along as though Booker never happened. So it makes perfect sense in this situation for Congress to bide its time.


Posted by: | Mar 4, 2007 10:26:38 PM

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