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February 28, 2016

Profiling a federal district judge eager to make the case for federal sentencing discretion

The Atlantic has this lengthy new article profiling a notable federal district judge and his notable disaffinity for rigid sentencing rules. The piece's full title highlights is themes: "One Judge Makes the Case for Judgment: John Coughenour says federal sentencing guidelines are overly punitive, coldly algorithmic measures that strip the courtroom of nuance. Without discretion, what’s the judiciary for?". Here is part of the start and middle of a piece that merits a full Sunday read:

Judge John Coughenour is a rebel. It’s not because — or not only because — he rides a Harley or spends his free time in prisons. It’s that the Reagan-appointed U.S. District Court judge has rebelled against federal sentencing guidelines ever since they were established in the mid-1980s.

But Coughenour had never earned national attention for his nonconformist ideas about sentencing and punishment — until, that is, al-Qaeda trainee Ahmed Ressam appeared in his courtroom in the spring of 2001. Over the course of the next 11 years, Coughenour would sit down to sentence Ressam to prison on three separate occasions, all for the same crime — two times to huge uproar and one time to clarify the sentence once and for all....

Coughenour was appointed during President Ronald Reagan’s first year in office, a few years before the federal sentencing guidelines were created.  The new system was meant to counteract the wild inconsistencies in the sentences handed down in different courts.  Instead of going simply by intuition, federal judges would now refer to a handbook that established a sentencing range.  And any discretion on the part of judges was intended to be restricted to the limits of that range.  But what some saw as a reasonable step toward greater justice, Coughenour saw as inhumane and robotic.  What’s the point of a judge if he is discouraged from offering his judgment?

Once on the fringe, Coughenour’s argument against sentencing guidelines is now gaining traction.  At the heart of the debate is an undecided question: Which is scarier — a world where a person’s actions are treated as part of a mathematical equation blind to context, or a world where political appointees decide people’s fates based on gut feelings?

Coughenour’s position is clear.  He believes that the standardization of sentences has resulted in less justice, not more, and that the way the nation sentences criminals today has created greater inequality, not less....

[T]wice a year for almost 20 years, Coughenour rode his Harley from Seattle to Sheridan to meet one on one with each of the men he had sentenced.  And then, he started visiting prisons all over the country with the same purpose.  To ensure candor, he insisted that the prisoners be unshackled and that the meetings be private.  A corrections officer stood outside just in case, but in two decades, Coughenour only had to call the officer in once.

During these meetings, the judge always asked the same questions: “How much time do you have left?  What are you doing to prepare yourself for getting out?  Are you dealing with anything you can’t handle?  Do you feel safe?” Sometimes, he’d compare notes about motorcycles — word traveled fast that the judge rode a Harley — and sometimes he’d just commiserate about prison food.  The next prisoner would be escorted in 15 minutes later, and the judge would start over again. Coughenour resists the implication that his visits — and the hundreds of hours he has spent asking hundreds of prisoners about their lives — have influenced his judicial philosophy.  But at the same time, Coughenour insists that the prisoners’ stories all carry a clear moral lesson: Too many people are in prison for too long.

February 28, 2016 at 10:17 AM | Permalink


It strikes me that this is something that all judges should do and possibly should be required to do. All too often, aspects of our profession become nothing more than academic abstractions.

Posted by: Fat Bastard | Feb 28, 2016 8:02:19 PM

Also, re: Sentencing Guidelines. Were most of the crimes contained in Title 18, United States Code actual federal crimes, that the federal government had an overweening interest in punishing to the exclusion of the states, then yes, a sentence handed down in Boise should roughly match the sentence handed down in Tampa.

However, because the majority of crimes in Title 18 are not federal in nature (interstate commerce does not render a crime actually federal in nature), inconsistent sentencing is the cost of doing business in a dual justice system. If Congress doesn't like it, leave prosecution and punishment of the common crimes to the states.

The Sentencing Guidelines are misguided at best and have become an abomination.

Posted by: Fat Bastard | Feb 28, 2016 8:06:39 PM

The response to the question asked by the article of what is the judiciary for is: 1) to interpret the law; and 2) to make sure that the law is being followed as it applies to the parties in a given case.

Traditionally, but not always, legislatures have recognized the difficult task of determining an appropriate sentence for given offenses and have given judges a significant amount of wiggle room to make the punishment fit the crime. Creating broad crimes and letting judges choose which facts "enhance" punishment does create questions of the adequacy of notice and a lack of jury finding of the facts that enhance punishment as well as making sentences depend on which judge you get.

Creating very narrow ranges of punishment tied to the finding of specific enhancing facts (either in a plea or trial) solves the notice and fact-finding problems, but it shifts a lot of power to the prosecution in plea bargaining (with the prosecution having the ability to decline to prove some of the enhancing facts). However, it involves the legislature in trying to micromanage the appropriate sentences. It eliminates the disparity created by which judge gets the case, but it eliminates the ability to tailor the punishment to the myriad of unique facts of the case and the offender.

Both extremes of the sentencing debate have their pros and cons. The legislature has the right under our legal system to choose how to structure sentencing in their jurisdiction. While I might wish for Congress to choose to narrow federal jurisdiction, Congress does not have to accept inconsistent sentencing practices as part of having a broad federal jurisdiction.

Posted by: tmm | Feb 29, 2016 10:21:21 AM

Astute analysis and commentary, tmm. Kudos.

Posted by: Doug B. | Feb 29, 2016 1:58:31 PM

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