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No.

458 November 1, 2002

Misguided Guidelines
A Critique of Federal Sentencing
by Erik Luna

Executive Summary

Fifteen years ago, the federal justice system punishing defendants for uncharged or acquit-
underwent a revolutionary but massively flawed ted conduct.
revision of its approach to sentencing criminal Beyond constitutional infirmities, the
defendants. Driven by concerns of disparate Guidelines have proven to be unfair and unwork-
treatment and undue leniency in punishment, able in practice. Justice in sentencing requires an
Congress created an independent agency, the individualized assessment of the offender and
U.S. Sentencing Commission, to formulate a the offense, leading to a moral judgment
new sentencing regime that would drastically imposed by judges with skill, experience, and wis-
limit the discretion of federal judges. The result- dom. Those judgments cannot be made by a dis-
ing body of law, known as the Sentencing tant bureaucracy pursuant to abstract rules that
Guidelines, has both perverted constitutional disregard important context. Yet that is precisely
principles and produced grave injustices. what occurs in today’s federal courts: Individuals
In promulgating detailed sentencing rules are sentenced under the commission’s micro-
that bind federal courts and individual parties, managed rules, which expressly forbid judges
the commission is making law through an from considering personal characteristics like
unconstitutional delegation of legislative the defendant’s age and family responsibilities.
authority. This practice not only violates the That rigidity in sentencing has lead to intention-
constitutional principle of separation of powers, al deception among judges, prosecutors, and
but also severs the typical lines of political defense attorneys attempting to avoid the pre-
accountability in American democracy. More- scribed consequences of the Guidelines. Such
over, the Guidelines themselves violate a number dishonesty is flatly inconsistent with the com-
of constitutional rights by, among other things, mission’s stated goal of “truth in sentencing.”

_____________________________________________________________________________________________________
Erik Luna, formerly a state prosecutor and Fulbright scholar on sentencing alternatives, is associate professor of law
at the University of Utah.
It is almost resulting in a federal prison population that
Orwellian dou- Introduction and has quadrupled in just a decade and a half.4 In

blespeak to call Background 1999, for example, more than 50,000 offend-
ers were sentenced pursuant to the Guidelines,
the present November 1, 2002, marks the 15th anniver- 44 percent of whom had been convicted of
sary of the U.S. Sentencing Guidelines. But drug offenses.5
regime guidelines, there will be no celebrations, parades, or other Some commentators have tried to distin-
given that judges festivities in honor of the punishment scheme guish the Guidelines from another federal sen-
must follow these created by Congress and the U.S. Sentencing tencing phenomenon: mandatory minimum
Commission. Instead, the day will pass like sentences.6 Those punishment schemes set an
sentencing rules most others during the intervening decade absolute floor for sentencing particular offend-
or face reversal by and a half—with scores of federal defendants ers. In most cases, for instance, a conviction for
sentenced under a convoluted, hypertechnical, possessing five grams of crack cocaine results in
appellate courts. and mechanical system that saps moral judg- an automatic five-year sentence.7 In a 1991
ment from the process of punishment. Rather report to Congress, the U.S. Sentencing
than fanfare, the Guidelines’ anniversary will Commission blasted mandatory minimums as,
likely be met with a level of ridicule reserved among other things, producing unwarranted
for “the most disliked sentencing reform ini- disparities among offenders and transferring
tiative in the United States in this century.”1 power from judges to prosecutors.8 The great
The Guidelines refer to the legal frame- irony, however, is that those same charges could
work of rules for sentencing convicted federal be leveled against the commission’s own work
offenders. After a defendant has been investi- product.9 Like mandatory minimums, the
gated by law enforcement, indicted by grand Sentencing Guidelines set strict parameters for
jury, and found guilty at trial (or through a punishment (including a lower limit), absent
plea bargain), the trial judge must determine some basis to depart from the sentencing range.
an appropriate punishment under the When Congress enacts a mandatory mini-
Guidelines. Depending on the crime of con- mum, the relevant sentencing range shifts
viction and various factors related to the upward to meet the legislative mandate. Both
offender and the offense, a federal judge will the Guidelines and statutory minimums are
typically sentence the convicted defendant to a manifestations of the same trend—mandatory
term of imprisonment and possibly a criminal or “determinate” sentencing. It is almost
fine. Of course, the federal system is dwarfed Orwellian doublespeak to call the present
by the combined criminal justice systems of regime guidelines, given that judges must fol-
the individual states, the primary crime fight- low these sentencing rules or face reversal by
ers in American society. Of the nearly 2 million appellate courts. In fact, the commission has
inmates in the United States, less than 10 per- even made the “Freudian slip”10 of calling the
cent are presently serving federal sentences.2 Guidelines “mandatory.”11 Both mandatory
Nonetheless, the federal system remains minimums and the guidelines attempt to
influential in the national debate on crime purge sentencing discretion in federal trial
and punishment, presenting a prominent courts, all but precluding judges from depart-
model for other jurisdictions in their penolog- ing from the strictures of determinate punish-
ical experimentation. For better or worse, fed- ment. Far from being alternatives, these two
eral law enforcement continues to dominate schemes feed off each other in curbing judicial
certain categories of crime—such as drug discretion. For that reason, both the Sentencing
offenses, immigration violations, and white- Guidelines and mandatory minimums will be
collar crime—often to the point of occupying collectively referred to in this study as the
the field. This tendency, particularly for nar- “Guidelines.”
cotics offenses,3 has only increased since the Although the Guidelines are frowned upon
enactment of the Sentencing Guidelines, from all corners of the criminal justice system,

2
the federal judiciary has been particularly of curing his “disease” and thereby prevent-
adamant in its opposition to the current sen- ing future misconduct. Various officials
tencing regime. Federal judges have described played a role in this medical model: Federal
the Guidelines as “a dismal failure,” “a farce,” probation officers collected information
and “out of whack;”12 “a dark, sinister, and about the defendant’s social history and past
cynical crime management program” with “a criminal record, providing a type of “progno-
certain Kafkaesque aura about it;”13 and “the sis” on his potential for reform and eventual
greatest travesty of justice in our legal system reintegration into society. Parole authorities
in this century.”14 In 1990, the Federal Courts would, in turn, determine the actual release
Study Committee received testimony from date based on their assessment of the offend-
270 witnesses—including judges, prosecutors, er’s progress toward law-abiding conduct.
defense attorneys, probation officers, and fed- Primary control over sentencing, however,
eral officials—and only four people expressed was vested in the district court. With few
support for the Guidelines: the U.S. Attorney exceptions, Congress provided only maxi-
General and three members of the U.S. mum terms of incarceration for federal
Sentencing Commission.15 Surveys of the crimes, allowing trial judges unbounded dis-
judiciary have confirmed widespread disap- cretion to sentence offenders short of the
proval of the Guidelines: A 1992 poll found upper limit—including no prison time at all Like the prover-
that more than half of all federal judges believe (probation). Given that an inmate would bial road to hell,
that the current system should be completely serve at least one-third, but typically not the path to the
eliminated, while a 1997 survey concluded more than two-thirds of the nominal sen-
that more than two-thirds of federal judges tence, the district court was supposed to Guidelines was
view the Guidelines as unnecessary.16 make a clinical judgment of sorts that an paved with good
With 15 years of overwhelmingly negative appropriately discounted term of imprison-
reaction, it is time to reconsider the ment would be sufficient to reform the
intentions.
Guidelines and the consequences for federal offender. Under a favorable interpretation,
criminal justice. This paper will begin with a then, federal trial judges were part social
brief history of federal sentencing, followed worker, part soothsayer—gauging the length
by a description of the impetus for reform of sentence based on an unguided evaluation
that culminated in the current regime. The of the necessary conditions for rehabilitation
paper will then critique the present approach and indoctrination of pro-social behavior. To
to federal sentencing, delineating the major be sure, this regime suffered from several seri-
vices and flaws of the commission and its ous defects. Sentencing judges were dictator-
Guidelines. The paper will conclude with a ial in practice: The district court was not
call to scrap the Guidelines and start anew. required to provide reasons for any particular
punishment, and so long as the term was
within the broad statutory boundaries, the
Judge as Social Worker: sentence was not subject to review on appeal.
Sentencing before the As a result, the federal system lacked any
mechanism that might ensure a degree of
Guidelines intercase equity in punishment. For instance,
Like the proverbial road to hell, the path a study chaired by Judge Marvin Frankel dis-
to the Guidelines was paved with good inten- tributed identical files based on actual cases
tions. Federal sentencing was indeterminate to 50 district court judges, asking each judge
in nature throughout much of the 20th cen- to sentence the hypothetical defendants.18
tury, allegedly pursuant to the rehabilitative The study found an “absence of consensus is
ideal fostered by American prison reform- the norm,” with one case ranging from a
ers.17 The criminal sanction was to be tai- three-year sentence by the most lenient judge
lored to the offender with the ultimate goal to 20 years in prison and a $65,000 fine by

3
the most severe jurist.19 sentencers to be arbitrary and discriminato-
Scholars and practitioners came to regard ry,”24 all of which should be “terrifying and
the system as fundamentally unfair and “law- intolerable for a society that professes devotion
less,”20 spurring a somewhat remarkable con- to the rule of law.”25 Judge Frankel’s remedy was
fluence of critics, each with his own set of the establishment of an administrative
grievances. The concept of “individual agency—“a commission on sentencing”26—to
reform” came under attack from both pris- develop rules that would provide direction for
oners’ rights groups and scientific trial courts in determining appropriate punish-
researchers. The former claimed that rehabil- ment. The agency would be insulated from
itation was often a pretext to warehouse political pressures that distort rational deci-
undesirables, whereas the latter argued that sionmaking, Frankel argued, and over time the
predictive judgments of future dangerous- administrators would develop a level of exper-
ness were inherently unreliable and that tise beyond that of congressional generalists.
rehabilitative programs had no effect on Behind Judge Frankel’s proposal was an
recidivism. Civil rights activists contended abiding conviction that the bureaucratic
that sentence length was often correlated model of modern society could apply jot-for-
with disturbing classifications, such as race jot to the practice of punishment. Sentencing
and socioeconomic status. In contrast, polit- could be pursuant to a “detailed profile or
ical conservatives condemned the prevailing checklist of factors that would include, wher-
system for allowing “bleeding heart” judges ever possible, some form of numerical or
to dole out lenient punishment for hardened other objective grading.”27 The resulting
criminals.21 “chart or calculus” would be used “by the
Despite those differences, critics appar- sentencing judge in weighing the many ele-
ently agreed that largely unlimited judicial ments that go into a sentence.”28 Frankel
discretion, without written justifications and even foresaw “the possibility of using com-
appellate review, tended to produce intolera- puters as an aid toward orderly thought in
ble sentencing discrepancies between similar- sentencing.”29 He dreamed of a scientific
ly situated offenders.22 With some judges jurisprudence that limited the discretion of
serving as well-intentioned social engineers judges through a systematic and all-encom-
and others as pseudoempirical shaman, pun- passing body of rules, mechanically applying
ishment often depended upon which court- the law to a set of facts and thereby generat-
room door a defendant entered. ing a proper sentence without the vagaries of
trial-judge decisionmaking.
Judge Frankel’s In practice, however, Judge Frankel’s vision
vision has Judge as Accountant: has proved to be more fantasy than reality.
Sentencing under the The Sentencing Commission has never been
proved to be Guidelines insulated from politics, and Frankel’s
more fantasy mechanical sentencing regime subtracts pre-
Although a few scholars have questioned cisely what is needed most in the human
than reality. the actual existence of capricious variations drama of punishment—moral judgment.
among truly comparable criminals,23 the image
and anecdotes of unequal punishment became The Makeover: The Sentencing Reform
widely accepted in the 1970s and early 1980s. Act Creates the Sentencing Commission
Among others, Marvin Frankel was a particu- As legend would have it, the genesis of feder-
larly influential voice against the prevailing dis- al sentencing reform can be dated to a 1975
cretion in sentencing. His 1973 book, Criminal party hosted by Sen. Edward M. Kennedy (D-
Sentences: Law without Order, lambasted the fed- Mass.).30 Among the invitees was Judge Frankel,
eral system for its “unruliness, the absence of whom Kennedy would later declare “the father
rational ordering, the unbridled power of the of sentencing reform.”31 The dinner conversa-

4
tion with Frankel and other guests, including surrounding the crime and the characteris- The original
criminal justice scholars Alan Dershowitz and tics of the criminal, such as age, education, commission was
James Vorenberg, inspired the Massachusetts vocational skills, mental and emotional
Democrat to lead the charge for a congression- problems, physical condition, previous mired in the con-
al overhaul of federal sentencing as it then exist- employment record, and family ties and fusing directives
ed. Although his initial bill was defeated, responsibilities.37
Senator Kennedy continued the campaign for By statute, the commission included two
of the act, divided
sentencing reform, compromising here and ex officio members and seven voting mem- over the relevance
there, and eventually garnering the support of bers, the latter composed of three sitting fed- and application
an odd coalition of political luminaries includ- eral judges and no more than four individu-
ing Sens. Joseph Biden (D-Del.), Orrin Hatch als from the same party.38 The enormous of punishment
(R-Utah), and Strom Thurmond (R-S.C.).32 Yet task facing the original commissioners was philosophy, and
even with modifications to suit the needs of dis- exacerbated by a deadline of a mere 18
parate interest groups, the Sentencing Reform months in which to formulate a whole new
dogged by critics
Act barely passed as a rider to a general crime federal sentencing system. From the start, the who saw the
control bill.33 original commission was mired in the con- enterprise as
In classic congressional style, the act pre- fusing directives of the act and its legislative
sented an extravagant set of legislative objec- history, divided over the relevance and appli- unconstitutional,
tives and statutory requirements. Among its cation of punishment philosophy, and unwise, or both.
goals were to create a system that: (1) pro- dogged by critics who saw the entire enter-
moted respect for the law; (2) offered a clear prise as unconstitutional, unwise, or both.
statement of the purposes of punishment as And, as will be discussed below, the eventual
well as the available kinds and lengths of sen- work product—the U.S. Sentencing Guide-
tences; (3) ensured that the offender, federal lines—showed all the scars of a political
officials, and the public “are certain about struggle within a poorly designed institu-
the sentence and the reasons for it”; (4) met tional process.
the sometimes conflicting demands of retri- In theory, the Sentencing Guidelines delin-
bution, deterrence, incapacitation, and reha- eate an appropriate sentence for each and
bilitation; (5) provided trial judges with “a every case through the application of detailed
full range of sentencing options from which rules. Using these rules, the trial judge must
to select the most appropriate sentence in a first determine which of 43 categories governs
particular case”; and (6) eliminated “unwar- the crime, thereby providing the “base offense
ranted sentence disparities” between other- level” for sentencing. The judge must next
wise similarly situated criminals.34 determine which of six “criminal history” cat-
The act ended indeterminate sentencing egories applies to the defendant given his prior
in the federal system, eliminating parole and record of offending. With that information,
requiring that judges set a specific term to be the judge will then turn to the “Sentencing
served in full (with a small allowance for Table,” a matrix of offense levels and criminal
good behavior) subject to appellate review. history scores that creates a 258-box grid of all
The act also established the U.S. Sentencing potential punishment ranges for federal
Commission—an “independent commission offenders. Grade the crime and the criminal
in the judicial branch”35—that was charged record, find each on the grid, and where the
with promulgating guidelines that limited axes meet, the applicable sentencing range will
the punishment range to 25 percent of the be found. The range might then be adjusted
maximum sentence.36 These guidelines were by aggravating circumstances, such as the
supposed to capture pertinent aspects of the defendant’s brandishing of a weapon, or miti-
offender and the offense, and toward that gating circumstances, such as the defendant’s
end, Congress instructed the commission to accepting responsibility for his criminal mis-
“consider” the relevance of various factors conduct.

5
The Supreme Court Sanctions the open meetings and discussions, detailed
Unconstitutional Commission explanations for the issuance of new rules,
The commission and its Guidelines suffer and review by the courts under an “arbitrary
from a number of shortcomings that justify a and capricious” standard.45 As a result, the
sweeping reconsideration of the current federal commission can act without defending its
system. The first and arguably dispositive prob- decisions or its decisionmaking process. The
lem is the delegation of lawmaking authority— sentences for violent crimes were increased,
specifically, the power to set punishment—from for instance, “where the Commission was
Congress to the commission. Despite dubious convinced that they were inadequate”46—
constitutionality, the commission and its without any explanation as to what made a
Guidelines were upheld by the U.S. Supreme punishment “inadequate” or how the com-
Court in Mistretta v. United States (1989).39 In a missioners became “convinced” that this was
scathing dissent, Justice Antonin Scalia the case for a particular offense.
described the commission as “a sort of junior- Despite the fact that its composition and
varsity Congress,”40 effectively empowered to activities often seem to have a partisan
make law by prescribing the punishment for attachment, the commission lacks a direct
criminal defendants. Among other things, this line of accountability to any of the three
In a scathing “new Branch”41 of government sets the range of branches and remains largely anonymous to
dissent, Justice punishment, defines when probation is permis- the general public. The Supreme Court’s
Antonin Scalia sible, regulates whether criminal fines should “nonpolitical” label to the contrary,47 the
be levied and in what amounts, and determines commission was a politicized entity from the
described the com- those characteristics of offenses and offenders beginning, composed of party adherents and
mission as “a sort that are relevant in sentencing. aspirants to higher office, but lacking any
As Justice Scalia noted, such decisions are members with significant experience in the
of junior-varsity not technical or procedural, but are instead practice of sentencing.48 At least under the
Congress,” effec- substantive value and policy judgments that prior, thoroughly political regime, the citi-
tively empowered the Constitution vested in the political zenry knew whom to blame for any griev-
branches.42 As a matter of constitutional text ances with federal punishment—Congress
to make law by and structure, “all legislative Power . . . shall be for enacting the relevant legislation and the
prescribing the vested”43 in Congress, meaning that only the president for signing it into law. But with the
punishment national legislative body can create federal law. commission and its Guidelines, no political-
Yet under the Sentencing Reform Act, the ly accountable entity can be held responsible
for criminal commission’s dictates become law—binding for the failures of federal sentencing law.
defendants. on individual parties and the federal courts— This political yet unaccountable character of
absent presidentially approved congressional the commission infected the creation and con-
legislation to the contrary.44 tent of the Sentencing Guidelines. Historically,
Moreover, the creation of the commission American sentencing was flexible in nature, a
and its Guidelines has blurred the line of manifestation of society’s equivocal stance on
accountability for any particular sentence or punishment theory. Retribution has always
for punishment policy in general. Congress had both a secular and biblical attraction for
concocted an administrative agency that is the citizenry—you reap what you sow, an eye for
supposedly lodged in the judicial branch, an eye, and so on—but considerations of deter-
whose members are chosen by the president rence, incapacitation, and, most notably, reha-
and approved by Congress to serve a speci- bilitation have also weighed on the collective
fied term. But unlike other agencies, the conscience. For this reason, sentencing has
commission is largely freed from statutory often reflected a mixture of philosophies,
constraints typically placed on administra- granting trial judges significant latitude to craft
tive bodies, including regularized procedures punishment based on a variety of concerns.
for considering new rules, a commitment to Arguably, Congress wanted the commission to

6
continue this hybrid approach, as evidenced by beyond a reasonable doubt. As a result, defen-
the Sentencing Reform Act’s enumeration of dants sometimes face enhanced punishment
the “purposes of sentencing” without any pref- for acts that were never formally prosecuted or,
erence or statutory mandate.49 even worse, for crimes the defendant was actu-
Nonetheless, the commission miscon- ally acquitted of, leading critics to argue that con-
ceived its role as choosing or reconciling sen- victions and acquittals have become largely
tencing theories through the Sentencing irrelevant under the federal scheme.52 And
Guidelines. During the ensuing battle over because jurors do not determine the “real
punishment philosophy, the commissioners offense” or the existence of relevant conduct—
divided over a harm-based retributive model information that can substantially increase the
versus a crime-control scheme. With dead- term of imprisonment—the defendant may be
lines fast approaching, the commission denied not only fundamental due process but
reached a thoroughly political, but ill-con- also the right to trial by jury.
ceived compromise: The Guidelines would Some commentators have argued that the
not formally espouse any particular theory Supreme Court may eventually gut the
and instead would be based on an empirical Guidelines’ real offense approach.53 They
assessment of past sentencing practices. Yet point to the recent decision in Apprendi v. New
for some reason,50 the Guidelines retained Jersey (2000), where the Court held that, “other
the incremental-harm approach of the ret- than the fact of a prior conviction, any fact
ributive model—requiring that punishment that increases the penalty for a crime beyond
change, sometimes drastically, with even the prescribed statutory maximum must be
minor factual variations. submitted to a jury, and proved beyond a rea-
In turn, the new federal regime rejected sonable doubt.”54
the traditional notion that judges should But the Apprendi case left for another day
have sufficient latitude to accommodate an whether its reasoning applies to those facts
eclectic approach to sentencing theory. And that trigger mandatory minimums or other-
although the commission claimed to be rely- wise raise the sentencing floor without pierc-
ing on an empirical evaluation of past judi- ing the statutory ceiling established by the
cial practice in setting potential punishment, charged crime. More generally, the Court pro-
the Sentencing Guidelines increased the typ- vided little guidance as to which facts must be
ical length of imprisonment for most offend- deemed elements of the underlying offense
ers and substantially augmented the punish- rather than sentencing factors, and therefore
ment for certain criminals—such as narcotics subject to jury deliberation and heightened
and white-collar offenders.51 proof requirements.55 It seems highly unlikely Although
Another disturbing development has been that the Court will fundamentally alter the
the commission’s tinkering with basic con- system that it has helped entrench with more
Congress has
cepts of constitutional due process. Although than a decade of Guidelines jurisprudence. never had an
Congress has never had an unblemished Ultimately, the end of real offense sentencing unblemished
record on civil liberties, actions taken by an will require action by Congress.
unaccountable bureaucracy like the commis- record on civil
sion are even more troubling. For example, Shift in Power Spawns a “Prosecutor’s liberties, actions
the Guidelines’ “real offense” sentencing pro- Paradise”
visions often require federal courts to mete The Guidelines and the commission rest
taken by an
out punishment, not for the specific criminal upon a dubious constitutional foundation, unaccountable
conviction, but for conduct that may have but the regime suffers from other problems bureaucracy like
been committed beyond the official charges. as well, most notably the elimination of legit-
Such “relevant conduct” need only be proven imate judicial discretion and the dehuman- the commission
by a preponderance of the evidence instead of ization of the punishment process. The are even more
the constitutionally based standard of absence of moral judgment under the troubling.

7
A number of Guidelines stems at least in part from a radi- tencing while remaining unaccountable for
scholars have cal change within the power structure of fed- any disastrous results. In modern constitu-
eral criminal justice, with the Sentencing tional democracies, sentencing rules are
shown that the Reform Act drastically shifting the tradition- deemed legitimate because they are the prod-
commission sim- al balance between legislative and judicial uct of politically accountable processes and
branches. Throughout most of American warranted by logic or empirical evidence. As
ply became anoth- history, lawmakers broadly defined criminal suggested earlier, neither condition holds
er political body, offenses and potential punishments while true for the unaccountable commission and
influenced by judges determined the comparative serious- its unjustified Guidelines. Moreover, the
ness of a specific crime and an appropriate commission may have usurped more power
interest groups sentence for the offender. As noted earlier, for itself than even Congress had originally
and susceptible to some commentators and practitioners expressed anticipated. For example, the Guidelines and
many of the pres- grave concerns about the unbounded discre- subsequent interpretations by the commis-
tion of federal trial judges in the indetermi- sion frequently prohibit trial judges from
sures placed on nate sentencing era. But that situation has considering facts about the offender that
lawmakers. now been reversed: The current system of may be highly relevant in fixing an appropri-
punishment has wrested from the district ate punishment. Yet the decision to preclude
court almost all power to determine the rele- at sentencing any consideration of the defen-
vance and weight of various factors or char- dant’s age, employment history, family
acteristics concerning the offense and responsibilities, and so on, was not expressly
offender, as well as limiting the range of ordered by lawmakers, nor even implicitly
potential sentences and the court’s authority suggested by the congressional record.
to depart from the Guidelines. Instead, the commission made those and
If the shift in power were only from judges other decisions of its own accord and with-
to lawmakers, a main concern would be the out a clear legislative mandate.
political distortion of sentencing in federal To be sure, Congress and the commission
courts. Because “tough on crime” platforms maintain a symbiotic relationship in the con-
tend to have electoral appeal, legislators trol of federal sentencing. Lawmakers send
often play to voters’ short-term emotions the commission “directives” for new guide-
rather than considering sound public policy, lines or sentencing factors, which the com-
producing criminal justice initiatives with mission invariably “considers” and adopts.59
few real benefits to society but large financial Congress has also enacted the aforemen-
and human costs. Some national lawmakers tioned mandatory minimums, which neces-
thought the act would avoid the politiciza- sarily influence the Sentencing Guidelines
tion of punishment by shifting sentencing and the permissible range of punishment for
power from the courts to the commission, relevant crimes. In turn, the commission’s
rather than to Congress itself. But a number work product becomes law unless reversed by
of scholars have shown that the commission congressional legislation to the contrary. But
simply became another political body, influ- for present purposes, whether the sentencing
enced by interest groups and susceptible to buck stops with lawmakers or commission-
many of the pressures placed on lawmakers.56 ers is beside the point. To the extent that a
One former commissioner recently claimed, criminal sentence is preordained by Congress
for instance, that gratuitous increases in or the commission, individuals are being
punishment for robbery and fraud were pro- judged by a distant body that lacks any
pelled by political heat from the Department meaningful understanding of the offense or
of Justice.57 the offender. Without firsthand knowledge
In one sense, the commission is worse than of the case at bar, these far-off entities can
a political body, issuing a set of “diktats”58 only supply cookie-cutter justice that rests
that command specific consequences in sen- on generalities rather than a moral judgment

8
framed by experience and the holistic assess- totaling more than 50 grams of crack
ment of a real human being. cocaine, the minimum amount needed to
What neither Congress nor the commis- trigger a mandatory 10-year sentence for
sion may have expected, however, was that every individual associated with the drug
the abatement of judicial discretion in sen- ring. More than a dozen suspects were arrest-
tencing would greatly amplify the authority ed, most of whom were in their early 20s, and
of federal prosecutors. Limiting the power of their convictions were all but preordained in
judges at the final stage of criminal justice federal district court. The punishment each
necessarily expands the decisionmaking defendant received, however, was not a func-
authority of prosecutors at early points in the tion of whether he was a major participant in
process. In fact, the Guidelines have proven the ring or just a bit player. Instead, those
to be “a prosecutor’s paradise,”60 at least for who cooperated with federal prosecutors by
those prosecutors who crave control over turning in their friends secured lower sen-
sentencing. To begin with, federal prosecu- tences through “substantial assistance”
tors exercise greater power than ever through departures. The drug ring’s lieutenant and
their charging and plea-bargaining decisions. two major dealers admitted their active
The Guidelines not only threaten severe pun- involvement in distributing crack cocaine,
ishment but also hem in judges through sold out their colleagues, and in return Despite an
tight sentencing ranges and limited means of received sentences of five years or less. In con- acquittal on the
departure from those parameters. As a result, trast, three minor dealers (two of whom were weapons charge,
defendants often face substantial prison time teenagers at the time) refused to cooperate
without the possibility of judicial leniency. with prosecutors and were sentenced to 12 the sentencing
In Professor Albert Alschuler’s metaphor, years in federal prison. As the U.S. Attorney court announced
the Guidelines serve as the classic “bad cop,” admitted, cooperating with law enforcement
intimidating the accused defendant with the was “the only ticket to freedom.”63 Although
that Watts indeed
possibility of a long prison sentence.61 such cooperation has always been a factor at possessed the
Federal prosecutors can then play the part of sentencing, federal prosecutors in the execu- guns in connec-
“good cop” by offering a deal that the defen- tive branch, rather than impartial judges,
dant literally cannot refuse—unless, of now determine who is eligible for leniency. tion with the
course, he or she is willing to risk a lengthy Prosecutors also exert vast power through drug offense and
prison term by standing trial. the Guidelines’ “real offense” scheme which
Government leverage in plea bargaining is requires judges to sentence defendants based
that his sentence
further enhanced by the prosecutor’s unique on “relevant conduct” presented by the govern- would be
power to facilitate deviations from the ment. This conduct includes any acts related to increased
Guidelines. Although judges have few grounds the crime of conviction, including all reason-
to depart from a given sentencing range, prose- ably foreseeable behavior and even those acts accordingly.
cutors have the exclusive and unreviewable that were not part of the underlying crime but
authority to seek a “downward departure” were connected to “the same course of conduct
based on “substantial assistance” from the or common scheme or plan.”64 As previously
defendant. Because the Guidelines often tie the noted, such conduct need only be proven by a
hands of judges at sentencing, the prosecutor’s preponderance of the evidence, may be based
unilateral authority over “substantial assis- on hearsay, and can include acts for which the
tance” departures provides yet more govern- defendant was acquitted.65
ment leverage over the defendant and his con- Consider Vernon Watts, who was arrested
stitutional rights. after police detectives found cocaine in his
For a concrete example, consider the bust kitchen cabinet and loaded guns in his bed-
of a small drug ring in northern Virginia.62 room closet.66 At trial, the jury convicted
Through weeks of surveillance, federal law Watts on the drug charges but acquitted him
enforcement personnel documented sales of “using a firearm” during a narcotics-relat-

9
ed crime. Despite an acquittal on the parole, at the end of a brief and casu-
weapons charge, the sentencing court al sentencing hearing in which there
announced that Watts indeed possessed the is no jury, in which the rules of evi-
guns in connection with the drug offense dence are not enforced, in which the
and that his sentence would be increased standard of proof is no higher than
accordingly. As bizarre as it may sound, in an ordinary civil case, and in
Watts will serve additional time in prison for which the judge’s decision will make
the acquitted conduct. the difference between a light pun-
In addition, the Guidelines give prosecu- ishment and a punishment that is
tors an incentive to reserve important facts or the maximum that our system
serious charges until sentencing in order to allows short of death.72
take advantage of looser evidentiary rules. In
one case, the government prosecuted a man According to the majority ruling, however,
for robbery but waited until the sentencing Rodriguez received all the process he was due
phase to tell the court that he was also a mur- under the Guidelines. He will be in prison for
derer.67 In another case, prosecutors dropped life despite the jury’s equivocation on his
a weapons charge at trial but then reintro- guilt and the diluted rules of evidence at his
duced the matter as relevant conduct at the sentencing hearing.
sentencing phase to significantly enhance an
individual’s prison term.68 More frequently, The Absence of Moral Judgment
the government provides postconviction evi- The overt transfer of sentencing authority
dence that drastically increases, for instance, from the judiciary to Congress and the com-
the amount of drugs attributable to the mission, as well as the shift of power from
defendant, thereby generating a sentence trial judges to prosecutors, has undermined
many times greater than what was possible punishment as the product of moral judg-
under the original charge.69 ment. Such decisionmaking requires an
In United States v. Rodriguez,70 the defendant assessment of an individual as a human
was prosecuted for various drug offenses relat- being by an entity capable of comprehending
ed to his delivery of 10 ounces of marijuana. all that makes that individual unique.
The jury struggled over the issue of guilt, con- Obviously, moral judgment involves ques-
victing the defendant of a single count of con- tions of abstract and universal justice, the
spiracy only after the judge pressured the rights and obligations that correspond to
jurors to reach a verdict.71 On the basis of only membership in a just society. But it is more
Using the lower, the evidence produced at trial, the defendant than an academic inquiry; the necessary
should have received a prison term of 18–24 judgment requires sensitivity to complex
preponderance months. But after the jury was dismissed, questions raised by the exigencies of real life,
standard of prosecutors told the judge that the defendant where no single heuristic or guiding principle
proof, the trial had actually sold more than 1,000 kilos of can guarantee an appropriate outcome. If a
marijuana. Using the lower, preponderance particular incident or course of conduct is at
court accepted the standard of proof, the trial court accepted the issue, the entity passing judgment must fully
government’s government’s claims and sentenced the defen- grasp what the events were, how they came to
dant to life in prison without the possibility of parole. transpire, and what their ultimate effects on
claims and sen- Although affirmed on appeal, the decision other persons or groups may be.
tenced the defen- was severely criticized by dissenting Judge Making a moral judgment about an indi-
dant to life in Richard Posner: vidual involved in a given incident also
demands an understanding of the bigger pic-
prison without the There is a serious question whether it ture that constitutes a person’s life. Where
possibility of parole. is permissible to sentence a person to did that individual come from? What are his
life in prison, without possibility of personal attributes, good and bad? How does

10
he treat others? Those questions and many victed criminal. The personal assessment of Distant govern-
more help to develop a three-dimensional facts and circumstances, along with the inter- ment bodies such
human being with a past, present, and action between judge and defendant, pro-
future, rather than a black-and-white carica- vides the basis for a court’s imposition of as Congress and
ture lacking depth and detail. An individual’s moral judgment in the form of a sentence. the commission
capacity to do good and bad, to feel empathy This weighing of often disparate and incom-
and remorse, to acknowledge misdeeds and mensurable factors cannot be done by algo-
lack the capacity
make amends, and so on, cannot be separat- rithm or from afar. “To be truly great a judge to evaluate the
ed into discrete units, placed on a scale, and needs wisdom,” Judge Guido Calabresi once facts of a specific
measured in inches or pounds. No numerical remarked, a “sense of balance which allows
value can be assigned to each part that makes one to weigh what cannot be measured.”74 crime or the of
up an individual and plugged into an equa- Only a human being gifted in wisdom can a particular
tion one at a time to spit out a bottom line. A assess the totality of the circumstances to
person can only be judged as a whole, with ensure that the punishment not only fits the
offender.
the entirety of his life placed in the meta- crime but also the criminal. And only a judge,
physical balance, measured by an entity capa- trained and experienced, can mediate the law
ble of making this type of context-sensitive, with mercy or condemnation. It is this training
holistic assessment. and experience that allow a trial court to see the
Distant government bodies such as similarities between crimes and criminals, and,
Congress and the commission lack the more importantly, the differences between indi-
capacity to evaluate the facts of a specific viduals and important variations in their con-
crime or the circumstances of a particular duct. The sentencing judge reaches a moral
offender. They can only create classes of judgment based on all the information before
crimes and criminals that privilege certain him—trial evidence, probation reports, argu-
factors and ignore others, transforming ments made by counsel, facts presented at sen-
unique cases into uniform patterns more tencing hearings, pleas of victims and family
agreeable to conveyor-belt treatment. A far- members, and other information relevant to
off agency can no more judge specific crimi- the offender and offense. In a solemn ritual, the
nals than a blindfolded expert can appraise judge then looks a defendant in the eye and
the worth of unseen paintings. It is true, of pronounces sentence and the reasons for it,
course, that prosecutors are privy to the evi- with a gallery of interested parties bearing wit-
dence and present for the proceedings, but ness to the entire proceeding. The personal and
let’s be clear—government prosecutors are comprehensible nature of the process gives a
partisans in the criminal justice system. sentence credence, the offender having been
Although charged to “do justice,” they often judged as a unique individual and punished in
seem preoccupied with obtaining guilty ver- a fair and comprehensive resolution.
dicts in an occupation where job perfor- Unfortunately, this type of moral judg-
mance is typically evaluated by “conviction ment is largely precluded by the Guidelines.
rate.” That is not a slight against government For instance, the “real offense” approach
attorneys but is perhaps an unavoidable con- allows the court to factor in only aggravating
sequence of the prevailing “battle model” of behavior, provides no judicial discretion to
criminal litigation.73 Sometimes, the adver- temper the ultimate effect of such conduct
sarial nature of their position prevents prose- on sentencing, and rejects other moral con-
cutors from neutrally evaluating the evidence siderations such as previous acquittals. More
and assessing the defendant as an individual, generally, the punishment scheme promul-
rather than as a means to an end. gated by the commission and the aforemen-
Only a trial court—learned in the law, tioned shift in discretion away from the
guided by experience, and dispassionate in courts have reduced the authority and legiti-
decisionmaking—can morally judge a con- macy of federal sentencing.

11
The Inscrutable Guidelines plexed by the process and justification for a
The Guidelines subvert moral judgment in particular term of imprisonment. The
three interrelated ways. First, the current system Guidelines frequently recognize subtle differ-
is confusing or downright incomprehensible to ences that have little, if any, cognitive value,
practitioners and lay citizens alike, while the yet result in significant disparities in sen-
hypertechnical nature of sentencing variations tence length. Lines are drawn between
is hard to justify and only adds to the chaos. “minor” and “minimal” participation in a
The Guidelines “seem to sacrifice comprehensi- crime, for instance, and between “leadership”
bility and common sense on the altar of pseu- and “managerial” roles in the offense. As for-
do-scientific uniformity,” Professor Kate Stith mer commissioner, now justice, Stephen
and Judge José Cabranes write in their book, Breyer said in 1998, “Ranking offenders
Fear of Judging. The result has been sentencing through the use of fine distinctions is like
hearings “nearly unintelligible to victims, ranking colleges or the ‘liveableness’ of cities
defendants, and observers, and even to the very with numerical scores that reach ten places
lawyers and judges involved in the proceed- past a decimal point. The precision is false.”79
ing.”75 The sentencing rules are contained in Unfortunately, neither the language of
the Guidelines Manual, a document that has sentencing nor the Guidelines’ visual aid, the
The cases are swelled over the past 15 years to more than “Sentencing Table,” conveys to the common
legion of officials 1,000 pages of complex regulations variously citizen the process and basis for punishment
miscalculating described as “Guidelines,” “Policy Statements,” as a moral judgment. The federal criminal
and “Commentary,” and filled with amend- justice system now uses terms like “base lev-
sentence length, ments, cross-references, and examples. To els,” “categories,” “points,” “scores,” and
judges using many, the Guidelines make the federal tax code other jargon that sound more like a parlor
look like Reader’s Digest.76 game than the process for imposing sentence
wrong editions As might be expected, both federal judges on real human beings. The Sentencing Table
of the Guidelines and commentators have recognized a serious offers little help, with its complex matrix of
Manual, attorneys shortage of practitioners who truly understand offense levels and criminal history scores pro-
sentencing under the Guidelines. This general ducing a 258-box grid that only an econo-
failing to pick up illiteracy—effected by the labyrinthine quality of mist could love. Even an average person who
computation federal punishment and compounded by hun- comprehends the workings of the grid might
dreds of amendments and thousands of court still be left wondering what makes a level-10
errors, and so cases—has inspired a cottage industry that, in crime worse than a level-9 crime, for instance,
on, sometimes turn, produces reams of publications intended or why a level-15 crime receives about twice
resulting in to educate practitioners about the Guidelines. the sentence of a level-10 crime.
The commission and others have even set up The excessive complexity of the Guidelines
sentences that telephone hot lines to steer attorneys and pro- impedes understanding of the federal system in
are off by years. bation officers through the bewildering rules of general and a given sentence in particular, trans-
federal sentencing.77 But despite government forming a human event into a string of terms
and commercial assistance, the sheer complexi- and numbers. Consider the following sentenc-
ty of the system ensures a high error rate in tal- ing colloquy reported by the Washington Post:
lying federal sentences. The cases are legion of
officials miscalculating sentence length, judges The court finds that the base offense
using wrong editions of the Guidelines Manual, level is 20 . . . . Pursuant to Guideline
attorneys failing to pick up computation errors, 2K2.1(B)(4), the offense level is
and so on, sometimes resulting in sentences increased by two levels [to 22] . . . . The
that are off by years.78 court notes that the criminal convic-
Even when punishment is mathematically tions . . . result in a total criminal his-
accurate, those individuals directly affected tory category score of 18. At the time
by the sentence may leave the courtroom per- of the instant offense . . . the defen-

12
dant was serving a parole sentence in tunity for moral judgment in the sense of a
two causes of action. And pursuant to comprehensive and comprehendible reckon-
Sentencing Guidelines 4A1.1(D), 2 ing of the case. Instead, the commission is
points are therefore added. The total the puppet master pulling the strings of pun-
criminal history points is 20. And ishment, deciding what information is rele-
according to the sentencing guide- vant and how the ultimate sentence is to be
lines Chapter 5, Part A, 20 criminal reached. In turn, the defendant is stripped of
history points establish a criminal many individuating traits and circum-
history category of 6 . . . . [As a result] stances, then cast into an abstract mold that
the guideline range for imprisonment displays only those factors the commission
is 84 to 105 months.80 has deemed relevant.
Others have likened the Guidelines regime
Although the Sentencing Reform Act was to a “sentencing machine,” where the trial
supposed to provide “certainty about the sen- court enters the required data and out spits
tence and the reasons for it,” the theoretical the assigned punishment.82 As Stith and
and practical complexity of the Guidelines all Cabranes note, the mechanization of the fed-
but ensures that the defendant and the gener- eral system is consistent with the “juridifica-
al public will remain in the dark. And despite tion” of the law foretold by Max Weber, with
the fact that a main goal of the act was pro- sentencing subject to a defined set of rules
moting “respect for the law,” it seems hard to that produce an exact amount of punishment
argue that the convoluted federal scheme for a given case.83 Federal sentencing has
encourages popular compliance among the become, in Weber’s words, “a slot machine
people. Without expert assistance, average cit- into which one just drops the facts . . . in
izens have no way of understanding the body order for it to spew out the decision.”84
of federal crimes and their respective penalties. Still others, such as Judge Jack Weinstein,
see the Guidelines as fulfilling Jeremy
The Mechanical Nature of the Guidelines Bentham’s dream of “a fully rationalized alge-
The complex, hypertechnical nature of bra of criminology and penology” that has no
federal sentencing exacerbates a second prob- need for discretionary decisionmaking.85 But
lem undermining moral judgment: Under whether Weberian or Benthamite or both, fed-
the Guidelines, judges mechanically evaluate eral sentencing has purged much of the
defendants as inanimate objects or clumps of human element necessary for moral judg-
data rather than human beings. To some, the ment—a point that has not been lost on the
modern sentencing hearing has become a judiciary. One district court judge argued that Under the
marionette show, with the central figures in “human conduct just doesn’t fit into a grid,”86
the drama of punishment—judge and defen- while another judge assailed the Guidelines as Guidelines,
dant—transformed into wooden figures.81 a “wholly mechanical sentence computation judges mechani-
There was a time when a federal trial judge which desensitizes those associated with it, cally evaluate
would draw on all available information and and converts a sentencing proceeding, which
the full capacity of human reasoning, turn- might otherwise have some salutary effect on defendants as
ing the facts and law over and over in his the offender, to a mathematical and logistical inanimate objects
mind to achieve justice in a particular case. exercise.”87
Today’s federal trial judge is dominated by In many cases, the Guideline ranges are too
or clumps of data
the strictures of the Guidelines. Little if any narrow to adequately fit the variations among rather than
time is spent discussing the purposes of pun- crimes and criminals. Because a sentence must human beings.
ishment and how a given sentence would be within 25 percent of the maximum, judges
achieve such goals, and at best, a few are left with little room to accommodate either
moments are spent on the defendant’s gener- mitigating or aggravating circumstances not
al culpability. In the end, there is no oppor- already factored into the equation. Sometimes

13
The Guidelines the Guidelines set even tighter ranges than are • drug or alcohol dependence
remove morally required by statute. Consider, for instance, a • lack of guidance as a youth
first-time offender convicted of an (otherwise) • employment history
relevant factors unremarkable assault with a deadly weapon. In • family ties and responsibilities
from the sentenc- Utah, this defendant could receive probation or • community ties
ing process. serve up to five years in prison consistent with • military or public service
the state’s indeterminate sentencing proce- • charitable works95
dures.88 Under California’s determinate scheme,
the offender could be sentenced to as little as six In the past, judges would have considered
months in a local jail or as much as four years in most if not all of those factors during sen-
the state prison.89 Using federal statutes in the tencing. A young person who went astray
absence of the Guidelines, assault with a deadly without parental support, for example, but
weapon would result in a sentence of anywhere who possesses an education and employable
from probation to 10 years of imprisonment.90 skills, might deserve mercy based on our nat-
But under the Guidelines, this aggravated ural empathy for wayward youth and the
assault calls for a sentence of 27 to 33 offender’s potential for reform and eventual
months91—a mere six-month range (or 18 per- success in society. Likewise, a trial court
cent of the maximum) within which the judge might reduce a sentence because of the
must tailor a fair resolution. That tight spread defendant’s good employment record, strong
seems only marginally preferable to the com- ties to the community, responsibilities for
mission setting an exact sentence itself.92 underage dependents, and a history of phil-
The most troubling restrictions, however, anthropic contributions. In such a case, the
involve the use of relevant information and defendant has built up a reserve of goodwill
characteristics of the offender. “Traditional- that won’t necessarily be annulled by his
ly,” noted the Supreme Court in 1993, “sen- crime, while his record of employment and
tencing judges have considered a wide variety ties to family and community might suggest
of factors in addition to evidence bearing on a high probability of reform and successful
guilt in determining what sentence to reintegration into society. Such factors could
impose on a convicted defendant.”93 These point in the other direction as well—for
factors included any information that might instance, a defendant with a poor education-
explain the defendant’s behavior, provide al and employment record despite strong
insight into his potential for reform, or indi- adult guidance—possibly pushing the judge
cate significant effects on other parties as a toward a longer sentence. Nonetheless, the
consequence of the sentencing decision. By Guidelines remove these morally relevant fac-
statute, the Guidelines were required to be tors from the sentencing process.
“neutral” toward the offender’s race, sex, To be clear, the current federal regime may
national origin, and creed—a limitation that make sense for the hypothetical “average
comports with American conceptions of defendant”—for example, a person ordinary
equality and the major impetus for federal in all respects, without a criminal history and
sentencing reform.94 But the commission has individual traits that might aggravate or mit-
barred an array of seemingly relevant factors igate the sentence, who commits a generic
from being considered by trial courts, includ- assault with a firearm. A Guidelines sentence
ing the following: of 27–33 months might seem perfectly
appropriate for this undistinguished offend-
• age er and common crime. Consistent with the
• education goals of sentencing reform, this range of
• vocational skills punishment prevents judges from imposing
• mental and emotional condition an oppressive 10-year term of imprisonment
• physical condition or, conversely, a mere slap of probation. But

14
the Guidelines’ range may become unjust alike, and less on insuring the likeness of
when human factors are added to the hypo- those grouped together for similar treat-
thetical, converting this mythical average ment.”99
defendant into a real and unique person. The Consider Judge Pierre Leval’s hypothetical
young man with a strong record of education of two offenders who independently embez-
and employment, stable ties to family and zle $10,000 from a bank.100 They may receive
community, a wife and children, and a histo- the same sentence even if one defendant is
ry of volunteerism—who brandished a weapon in “universally known by coworkers, family and
a one-time, nonlethal street altercation—must friends as honest, hard-working, loving and
serve between two and three years in federal generous,” and stole the money “to buy
prison. In contrast, an older criminal with a expensive medications that might save her
spotty employment record, little education, child”—while the other defendant lived “a life
and no vocational skills, who lacks ties to of abused and wasted privilege,” “cheated and
family and community and has a history of deceived at every opportunity, [and] abandoned
being a drug abuser, dead-beat dad, grifter, his first wife and children after exhausting his
and drifter, will serve no more than 33 wife’s money.”101 In such circumstances, it is
months of imprisonment regardless of an difficult to argue that justice is done by doling
ignominious past and limited chance of per- out the same punishment to both defendants.
By privileging
sonal transformation. A comprehensive understanding of equali- certain facts, such
Of course, the Guidelines were supposed ty is also challenged by comparing the sen- as monetary loss
to end inconsistent treatment of offenders, a tences for different crimes. Whereas second-
worthy cause by all appearances. But as degree murder is a base level-33 offense under or drug quantity,
Albert Alschuler has quipped, “Some things the Guidelines, possessing 150 grams of crack while ignoring
are worse than sentencing disparity, and we cocaine with intent to sell is a level-34 offense.
have found them.”96 Whatever its effects on Given the large disparity of injury caused by
morally relevant
disparity, the current federal regime has pro- these two crimes, it seems hard to fathom a factors about the
duced excessive uniformity in punishment, moral system of sentencing that deems a drug offender, federal
with significantly different offenders and offender similar to, let alone worse than, a
offenses receiving similar sentences. murderer.102 sentencing cre-
This problem has been recognized and ates the illusion of
criticized not only by members of the judicia- An Open Secret: Routine Circumvention eliminating
ry and academic opponents of the Guidelines, and Nullification of the Guidelines
such as Alschuler and Michael Tonry,97 but also A third and largely unreported problem unwarranted dis-
by those who (cautiously) support the with federal sentencing involves the hidden parities.
Guidelines regime, such as Stephen Schulhofer.98 nullification of the Guidelines by criminal
By privileging certain facts, particularly quan- justice actors. In light of the problems dis-
tifiable details such as monetary loss or drug cussed earlier, it is little wonder that some
quantity, while ignoring morally relevant fac- judges, prosecutors, and defense attorneys
tors about the offender and his life, federal have circumvented the Guidelines’ strictures
sentencing creates the illusion of eliminating in order to achieve a just outcome in individ-
unwarranted disparities. Though the Guidelines ual cases. “There’s a certain fiction we all
ensure that those who steal the same amount of engage in if we want a certain result,” one
money or sell the same quantity of drugs defense attorney acknowledged.103 Trial
receive similar sentences, this “aggregation” judges bothered by a particularly onerous
of defendants in no way guarantees equality— punishment under the Guidelines, but
the like treatment of similarly situated unwilling to overtly disregard the rules, sim-
offenders who commit comparable crimes. ply manipulate the actual facts of a case to
As one former commissioner admitted, “The reduce sentence calculations. Some judges
emphasis was more on making sentences have even instructed probation officers to tai-

15
lor their reports (e.g., omit certain items) so as to If fact bargaining is acceptable, then
be consistent with a preordained outcome.104 the entire moral and intellectual
Federal prosecutors and defense attorneys basis for the Sentencing Guidelines
also engage in their own machinations to is rendered essentially meaningless.
evade the Guidelines through the use of If “facts” don’t really matter, neither
clandestine agreements on those facts to be does “judging” contribute anything
presented in open court. This process of “fact to a just sentence. . . . “Facts are like
bargaining” results in counsel lying to the flint,” judges say, and their proper
judge about, for instance, the amount of ascertainment is the crowning goal
drugs or monetary loss, the dates of crime, or of our entire adversary system. When
the existence of a firearm—all with the goal of parties can “make up” their own
skirting the federal rules and securing a lower facts with little fear of discovery and
sentence for the defendant.105 As one proba- no effective sanction, however,
tion officer notes, “The widespread use of courts no longer adjudicate actual
fact bargaining, and the lying to the court cases and controversies, as required
that is inevitable with the frequent use of by the Constitution. They simply rat-
such bargaining, is the dirty little secret in the ify the government’s secret bargains
prosecution of federal criminal cases.”106 In a with defendants, thus lending (and
1996 survey, less than one-fifth of probation dissipating) their moral authority as
officers reported that Guidelines calcula- an independent third branch of gov-
tions were factually accurate in most of the ernment.112
cases they had seen, while two-fifths of the
respondents reported that calculations were Fact bargaining is corrosive to the pursuit of
more likely than not to be incorrect.107 truth, literally turning the world of criminal
Moreover, Professor Schulhofer and former justice upside down. It is as though the Queen
commissioner Ilene Nagel have found that the of Hearts had designed the whole process—
Guidelines are circumvented in at least 20–35 sentence first, facts later—with the parties
percent of all cases resolved by guilty plea.108 negotiating punishment and then working
A recent appellate ruling detailed the backward to a fact pattern supporting the out-
plight of six defendants, all charged with come. Despite intentions to the contrary, the
conspiracy to distribute approximately 5,000 rigidity and excesses of the Guidelines have
grams of crack cocaine over a 36-week period. only encouraged dishonesty in service of other
Those who refused to cooperate with prose- goals, with a wink and a nod between litigants
Fact bargaining is cutors were liable for the full quantity of and the court. “That’s what makes it a sham,”
drugs, resulting in punishment of around 20 one defense attorney scoffed.113
corrosive to the years in prison. In contrast, the defendants But these sentencing shenanigans are
pursuit of truth, who played ball with the government were more than a sham—they conflict with the
literally turning held accountable for only a fraction of the idea of an open, representative democracy.
crack cocaine and therefore received sen- Guidelines circumvention is “hidden and
the world of tences of 5 years or less.109 On appeal, the unsystematic,” Schulhofer and Nagel sug-
criminal justice reviewing court admitted that the disparity gest, occurring “in a context that precludes
caused by fact bargaining “would strike oversight and obscures accountability.”114 As
upside down. many as unfair” and “exacts a high price a general rule, representative democracy
from those who exercise their constitutional requires accessibility of elected officials to the
rights to trial,” although it concluded that people, responsiveness of officials to popular
the resulting inequity was of no constitutional demands, and accountability of officials for
moment.110 A subsequent district court opin- their decisions. In turn, accessibility, respon-
ion, however, criticized the appellate decision as siveness, and accountability require honesty
representing “a sad epiphany.”111 and some minimal amount of openness or

16
“transparency” by the state. Without knowl- The Guidelines have thus created the worst The Guidelines
edge of the factual basis for official decisions, of all worlds: a formal system that prevents have created the
the public is unable to evaluate these judg- the court from considering a defendant’s
ments and therefore denied the opportunity humanity combined with an underground worst of all
to demand an accounting of the official’s process that secretly attempts to ameliorate worlds: a system
deeds and reasons. the system’s many failures.
If the nominal facts underlying Guideline
that prevents the
sentences are different from the actual facts The Perverse and Unjust Consequences court from con-
of the relevant cases, can the public correctly To be clear, many of the defendants serving sidering a defen-
evaluate the effectiveness of federal law time under the Guidelines are violent or seri-
enforcement, for instance, or assess the law- ous criminals. The defendant in the aforemen- dant’s humanity
and-order claims made by a local member of tioned Rodriguez case, for instance, will never combined with a
Congress? The answer must be “no” if be a candidate for sainthood.119 He had previ-
accountability is predicated on truthful ously been convicted of possessing heroin and
process that
information rather than fabrications. In the methaqualone, both with intent to distribute. attempts to
words of one disgruntled district court judge: In his latest conviction, the defendant alleged- ameliorate the
“The Guidelines . . . have made charlatans ly transported hundreds of pounds of mari-
and dissemblers of us all. We spend our time juana from Texas to Wisconsin. As such, system’s failures.
plotting and scheming, bending and twist- Rodriguez is a case unlikely to inspire empathy
ing, distorting and ignoring the law in an for the defendant and public outrage against
effort to achieve a just result. All under the the Guidelines. Yet under the American sys-
banner of ‘truth in sentencing’!”115 The dis- tem of law, even brazen criminals charged with
honesty spawned by the current regime may the most serious offenses are entitled to the
lead to cynicism and contempt of the full panoply of procedural protections guar-
Guidelines not only among practitioners and anteed by the Constitution. The very integrity
jurists, but also by the citizenry as it evaluates of the process is measured not by the rights
the legitimacy and trustworthiness of gov- accorded sympathetic defendants, but by the
ernment, and thus the basis for general com- treatment provided the worst offenders in the
pliance with the law.116 criminal justice system. If it is unfair to sen-
Ironically, the Guidelines’ anti-discretion tence the most pitiful defendant to an elon-
crusade to eliminate disparities in sentencing gated term based on, for instance, evidence
may have only exacerbated the problem. not presented to the jury and not found to be
Experience has shown that the federal true beyond a reasonable doubt, it must also
scheme has not prevented sentencing discre- be deemed unjust to do the same thing to an
tion but has merely driven it underground to unmitigated scoundrel.
the hidden realm of legal contortions and More importantly, the practical injustices
fact bargaining. Whatever the shortcomings produced by the Guidelines have not been lim-
of the prior regime, at least sentencing deter- ited to the procedural claims of rogues and vil-
minations and any resulting disparities were lains. There are countless horror stories of
made in the open. Now, much of the deci- low-level or minor offenders, with compelling
sionmaking takes place behind closed doors, arguments in mitigation of their crimes, who
with collusion among the parties and even nonetheless received oppressive sentences. For
the judge to circumvent the Guidelines, sub- example, Kemba Smith grew up in a loving
ject to none of the disinfectant that openness middle-class home, actively participating in
provides.117 The disparities in sentencing pro-social activities like Girl Scouts, gymnastics,
continue, with punishment depending on ballet, and the high school band.120 When she
the location of the crime, the temperament matriculated at Hampton University in
of the prosecutor, the competence of defense Virginia, Smith began to suffer from low self-
counsel, and the craftiness of the judge.118 esteem and doubts about her appearance and

17
popularity. That made her a perfect target for The story of Clarence Aaron is just as dis-
Peter Michael Hall, a flamboyant man eight turbing. Aaron grew up in a poor section of
years her elder, who spoke in a charming Mobile, Alabama, raised by his grandfather, a
Jamaican accent, drove fancy cars, wore expen- shipyard worker who made it his foremost
sive clothes, and was all the rage at Hampton— goal to ensure that his grandson received a
despite the fact that he was not a college stu- college education. Under his grandfather’s
dent. Instead, Hall was the kingpin of an east tutelage, Aaron was a successful high school
coast drug ring that moved millions of dollars athlete and student, and received an athletic
in cocaine during the 1980s and early 1990s. scholarship to college. He was the first mem-
After they began dating, Hall exerted ber of his family to attend a university, where
more and more control over Smith, beating he majored in marketing and participated in
her repeatedly, threatening her life, telling extracurricular activities. In the summer
her she couldn’t leave, and using her as a before his senior year, Aaron made the mis-
“mule” in his drug business. Smith was take of introducing two groups of drug deal-
caught in an abusive relationship and suf- ers, for which he was paid $1,500. Months
fered from all the symptoms of battered later, he was literally pulled out of class by
women’s syndrome, paralyzed by fear of FBI agents, arrested, and charged with con-
It didn’t matter physical violence and an overwhelming sense spiracy to distribute crack cocaine. Unknown
that Smith was a of helplessness. When Smith eventually sum- to Aaron, the major players in the drug ring
college student moned the strength to leave, she returned had already been arrested and were scheming
home to her parents, pregnant with Hall’s to lay all blame on the then 23-year-old col-
with a strong child, only to learn that she had been indict- lege athlete. But while the big fish in the drug
family back- ed for a variety of offenses, including con- ring were able to snitch out others down the
spiracy to distribute cocaine. Federal law proverbial food chain, Aaron had no infor-
ground, had no enforcement authorities told Smith that the mation to provide law enforcement. “The
prior record, had charges would be dropped if she would dis- only thing I did know was that I introduced
been abused by close the location of Hall, who was now on the two parties,” he lamented in a PBS inter-
the U.S. Marshal’s “15 Most-Wanted List.” view, “but that’s as far as I could give them. I
the chief culprit Unfortunately, Smith agreed to cooperate couldn’t give no name, no place, none of that
in the criminal with the government only after Hall had and so . . . what could I do?”121
been found dead in a Seattle apartment. At trial, Aaron’s former friends and even a
scheme, and was With nothing to offer in exchange for a plea cousin testified against him, claiming that he
the mother of an bargain, Smith pled guilty to a number of was the mastermind behind the drug ring. In
infant child. charges and hoped for mercy from the prose- return, prosecutors made “substantial assis-
cution or the court. None was forthcoming: tance” motions in their favor that resulted in
The government failed to ask for a downward drastically reduced sentences. But when
departure or some type of judicial leniency, Aaron was convicted, there was no motion
and the trial judge hammered Smith with a for a reduced sentence. Instead, prosecutors
staggering 294 month sentence. It didn’t argued that he was responsible for distribut-
matter that Smith was a college student with ing nine kilos of cocaine, which was subse-
a strong family background and promising quently converted into crack. The govern-
future, had no prior record and had never ment had no independent evidence on the
personally sold drugs, had been abused and amount of drugs distributed, with only the
threatened by the chief culprit in the criminal word of snitches supporting the quantity
scheme, and was the mother of an infant and attached punishment. “Nobody ever saw
child. Under the Guidelines, none of that any drugs,” Aaron’s attorney noted, “but
mattered: Smith would have to spend almost because of what [the snitches] said the quan-
a quarter-century in federal prison, and her tity was, and because of the Sentencing
child would grow up in a parentless home. Guidelines we have in this country today, the

18
sentencing judge had no alternative except to the crime of possessing a single bullet, with
sentence Clarence Aaron to life without neither a gun nor criminal intent.
parole.”122 So Aaron sits in a federal cell
today, a model prisoner, with no prior record
and only a year away from a college degree. Judge as Judge: Sentencing
He admits it was wrong to introduce the two beyond the Guidelines
groups of drug dealers, but some say his
biggest mistake was not playing ball with the As inequities under the Guidelines have
government and telling the prosecutors what become more apparent, plaguing nearly
they wanted to hear. “Either tell the truth, every federal courthouse, scholars, practi-
probably go to prison for the rest of your tioners, and the media have joined the major-
life—or lie, cooperate with the government, ity of federal trial judges in criticizing the
do whatever it takes to get a lesser sentence,” Guidelines.128 Even initial supporters of sen-
says Aaron in describing his Hobbesian tencing reform, such as Judge Jon Newman,
choice. “Which sounds better?”123 have concluded that “these guidelines go far
Finally, consider the recent case of 38-year- too far,” creating a surreal world “like ‘Alice
old Dale Yirkovsky. While helping to remodel in Wonderland.’”129 Unfortunately, many of
the home in which he was staying, Yirkovsky the most influential and eloquent critics
found a .22-caliber round and placed it in a seem to concede that the commission and its
small box in his room. Some time later, the Guidelines are here to stay. For instance,
police came to the home and asked to search Professor Stith and Judge Cabranes temper
Yirkovsky’s room after his ex-girlfriend their compelling arguments for change with
claimed that he still had some of her property. “a recognition that the Guidelines are likely
During the search, law enforcement turned up to remain substantially intact for some time
the single bullet, and Yirkovsky admitted to come.”130
“putting it in a safe place to keep it from being Admittedly, the resources and labor put
a public hazard.”124 According to the Des into the Guidelines, as well as the passage of
Moines Register, federal prosecutors “hoped to time since their creation, pose significant
squeeze information out of Yirkovsky about barriers to any large-scale reform efforts. But,
other crimes,” and although he pled guilty of course, the same could have been said
and cooperated, “the feds refused to reduce about the great liquor ban of the early 20th
the severity of the charge.”125 Based on his century. As one senator put it in 1930, “There
prior record, Yirkovsky was convicted in feder- is as much chance of repealing [Prohibition]
al court of being a felon in possession of as there is for a humming-bird to fly to the Dale Yirkovsky
ammunition and received an astonishing 15- planet Mars with the Washington Monu-
year sentence. The appellate court affirmed ment tied to its tail.”131 Yet just a few years will be impris-
the judgment, conceding that the prison term later, America’s ill-fated experiment in alco- oned for the next
was “an extreme penalty under the facts,” but hol criminalization was over. With nearly 15 decade and a half
ultimately concluding that “our hands are tied years of Guidelines sentencing under our col-
in this matter by the mandatory minimum lective belt, it seems high time to consider for the crime of
sentence which Congress established.”126 alternatives to the current regime. Tinkering possessing a sin-
Dissenting Judge Morris Arnold called the with the Guidelines will not do; in the words
punishment “draconian” and maintained that of one federal trial judge, the only remedy is
gle bullet, with
“the severity of sentences in general under the to “tear it down and start all over.”132 neither a gun nor
United States Sentencing Guidelines and To begin with, architects of a new federal criminal intent.
recent congressional enactments is, or ought system of criminal justice should revisit the
to be, a matter of great public concern to every wisdom imparted by the previous generation
citizen.”127 Nonetheless, Dale Yirkovsky will be of reformers but ignored by Congress and
imprisoned for the next decade and a half for the commission—namely, the demand for

19
An offense can no code reform in addition to sentencing reform.133 judgments include the legislature’s defini-
more be isolated As pointed out in a 1977 Senate report: tion of crime and possible punishment; law
enforcement’s decision to investigate and
from punishment The need for extensive reform of the arrest; the prosecutor’s determination to
than a story can Federal criminal laws is apparent. charge a defendant or add particular offens-
Present statutory criminal law on the es; the jury’s verdict and, sometimes, its sen-
be told without Federal level is often a hodgepodge tencing recommendation; the trial court’s
its conclusion. of conflicting, contradictory, and imposition of sentence; an appellate court’s
imprecise laws with little relevance to review of that sentence; and the parole
each other or to the state of criminal board’s consideration of early release.
law as a whole. It necessarily burdens With those considerations in mind, a
the responsibility of assuring every truly beneficial renovation of federal sentenc-
man of knowing what he may do and ing would examine the entire process from a
what he may not do.134 holistic perspective. As just suggested, it
would reevaluate the current potpourri of
Unfortunately, neither Congress nor the crimes in the federal code, with an eye toward
commission recognized that the concerns dri- organizing penal statutes into a compre-
ving the reform movement—unwarranted sen- hendible statement of federal offenses and
tencing disparities, for example, or general the principles of criminal liability. Successful
confusion on the purposes of punishment reform efforts might also examine the
and the justification for a particular sen- process of selecting the actors who wield dis-
tence—were not merely the function of inde- cretion, most notably Article III judges. The
terminate sentencing. Instead, various defects sentencing reform movement was driven by
in the federal sentencing system could be images of unduly lenient or severe jurists,
traced back to the disorganized and virtually mocked as either “turn ’em loose Bruce” or
incomprehensible set of crimes dispersed “hang ’em high Harry.”135 But such carica-
throughout the federal code. Whether appre- tures, fostered by media hype and political
ciated or not, defining crime and setting pun- opportunism, are belied by the reality of judi-
ishment work in unison, simultaneously cial appointments in the federal system.
describing banned conduct and calibrating its Article III judges are individually selected by
gravity. It is hard to imagine the crime of mur- the president, put through the rigmarole of
der, for instance, without also visualizing the Senate confirmation, and accorded life
penalty—death or life in prison. The punish- tenure and salary protection, all to ensure
ment is part of the crime’s definition, convey- qualified and independent judges on the fed-
ing the seriousness of killing others with mal- eral bench.136 Given the multiple layers of
ice aforethought. An offense can no more be investigation into their character and fitness,
isolated from punishment than a story can be the men and women of the federal judiciary
told without its conclusion. are probably the most qualified and trust-
Successful reform projects must also rec- worthy decisionmakers in national govern-
ognize that sentencing discretion is not an ment and the precise individuals that the
evil in itself. Instead, it is a tool that can be American public should entrust with the
used for positive goals, like creatively struc- most important judgments in the criminal
turing a sentence that fits both crime and process. So if the existence of skilled trial
criminal—or, conversely, for negative ends, courts is assumed—a justified premise,
such as secretly increasing punishment based extremist nonsense to the contrary, given the
on the offender’s race. Moreover, discre- current corps of district court judges137—sen-
tionary judgments that affect sentencing can tencing reform efforts might build upon the
be found throughout the criminal justice sys- following general ideas:
tem, not just in the judicial branch. Such Shared discretion. American constitutional

20
democracy demands that lawmakers define could provide standards for sentencing, such as
crime and potential punishment, juries the young, poor, and disadvantaged man who
decide guilt, and judges impose sentence. But becomes a small-time drug dealer. Real guide-
this separation of powers and labor does not lines would offer a presumptive punishment
require that each body be hermetically sealed and rationale for this paradigmatic case while
from the others. Instead, a healthy division empowering trial courts to set a different sen-
would encourage some sharing of authority tence based on facts that distinguish the pre-
while securing each body sufficient discre- sent case from the benchmark. A necessary con-
tion to adequately perform its tasks. So, for sequence of real guidelines would be the end of
instance, juries might continue service after a the 258-box federal sentencing grid and the low
determination of guilt, remaining for the comedy it produces. Derisively analogized to
sentencing hearing and then providing the the games Parcheesi and “GO,” the sentencing
judge with an advisory opinion on an appro- grid will not be missed by many.139
priate punishment. In turn, legislators could Written reasons, appellate review, and institu-
set broad boundaries of punishment that tional memory. A system of real guidelines
accommodate the variations in crime and might foster a common law of sentencing in
criminals, thereby ensuring trial judges suffi- federal courts, with the reasoned judgments of
cient discretion to render moral judgment past decisions helping trial judges decide The federal sen-
through sentencing. The federal sentencing today’s cases. At a minimum, the common law tencing ranges
ranges under the “25 percent rule” are simply model requires three ingredients for success. under the “25
too narrow to account for relevant differ- First, trial judges should provide written rea-
ences among cases. A better approach would sons for the sentences they pronounce, percent rule” are
create, with care and consideration, a suffi- explaining to the defendant and all others the simply too nar-
ciently low sentencing floor for the “good” exact justifications for a particular punish-
defendant and a sufficiently high ceiling for ment. Second, appellate courts should be able
row to account
the hard-core criminal, regardless of the span to review a sentence to ensure reasonable for relevant dif-
between the two.138 application of real guidelines, a justified devia- ferences among
Real guidelines. The Guidelines are in no way tion from the guidelines, and the absence of
“guidelines,” at least as the term is typically invidious discrimination against the defen- cases.
defined: a recommendation or general princi- dant. And third, the written reasons and rele-
ple for decisionmaking. Instead, the Guidelines vant appellate decisions should be part of an
have become obligatory on the courts, with the institutional memory for the federal judiciary,
commission even referring to their strictures as allowing future courts to use these judgments
mandatory. A better approach would establish as a database for their sentencing decisions. In
real guidelines for real judges, and once again, 1999, Professor Ronald Wright pointed out
much can be learned from the wisdom of legal that Scottish judges have computer access to
reformers from the recent past, such as key information about recent sentences:
Professor Kenneth Culp Davis. In his seminal “When the time arrives to impose a sentence,
book, Discretionary Justice, Professor Davis the judge asks the database to display infor-
emphasized that “discretionary power is a nec- mation about cases that resemble the case at
essary government tool but excessive discre- hand in all relevant ways . . . [and] the database
tionary power is dangerous and harmful.” then informs the judge about the sentences
Rather than seeking its elimination, Davis imposed in past cases with comparable fea-
argued that discretion should be confined, tures, including information about the distri-
structured, and checked. For federal sentenc- bution of the sentences imposed.”140 Quite
ing, this might suggest a system of benchmarks frankly, it is somewhat embarrassing that
that provide starting points for judicial deci- computer-savvy Americans were not the first
sionmaking. Professor Alschuler has proposed to consider this humane use of technology.
a set of “recurring paradigmatic cases” that Full transparency. Finally, whatever model

21
eventually replaces the Guidelines should gen- Charybdis of excessive uniformity under
erate an honest system of sentencing. The cur- today’s mandatory Guidelines.
rent process encourages judicial sleight of
hand and fact bargaining by the parties, result-
ing in “facts” that are not factual and legal rul- Conclusion
ings that push the envelope of reasonable
interpretation. To be sure, the outcome of an Kemba Smith—formerly federal inmate
individual case may be acceptable, avoiding No. 26370-083, serving a 24-year sentence
draconian punishment under the Guidelines. under the Guidelines—recently graduated
But collectively, this chicanery by judges and from Virginia Union University with a 3.1
attorneys only undermines the moral authori- grade point average. Since her release from
ty of law and calls into question a system that prison, Smith has reconnected with her now
tolerates systemic deception. “Our govern- seven-year-old son, completed her bachelor’s
ment is the potent, the omnipresent teacher,” degree, worked part-time as a legal assistant
Justice Louis Brandeis famously observed, and and social work intern, and recounted her
“if the government becomes a lawbreaker, it story at public forums and college campuses,
breeds contempt for law.”141 Unfortunately, warning other young people about the dan-
the Guidelines teach that circumventing the gers of drugs and drug dealers. She has now
law is acceptable, as long as it is done under set her sights on becoming a lawyer. “It just
the table and then masked above with pass- seems right for me to pursue law,” Smith
able lies. Needless to say, no legitimate form of says, “to have that title to go along with my
government would perform in such a manner. advocacy.”142 After six years in prison, she is
Together, shared discretion and real guide- now ready to follow her dreams and provide
lines coupled with written reasons, appellate for her family.
review, institutional memory, and full trans- But neither the Guidelines nor the com-
parency would help create a federal common mission set Smith free; no judge or prosecutor
law of sentencing that treats offenders as was able to undo the draconian sentence that
human beings—worthy of individualized had been levied against this first-time, low-
treatment and a comprehensible justification level offender. Instead, the 30-year-old mother,
for their fate—while limiting the potential for who had been caught in an abusive relation-
unwarranted disparities in punishment. The ship with a drug kingpin, received mercy from
discretion allowed under nonmandatory real a most unlikely source. At the end of his term,
guidelines would permit judges to tailor pun- President Bill Clinton included Smith on a
The Guidelines ishment to the unique characteristics of a much ridiculed list of offenders who received
given offender rather than cramming the executive pardons. Yet Smith’s case is the
teach that circum- offender into a sentencing pigeonhole based exception proving the rule—the futility of try-
venting the law is on a truncated list of factors. In turn, written ing to remedy excesses and injustices under
acceptable, as reasons, appellate review, and institutional the Guidelines without also changing the cur-
memory would ensure that punishment is not rent sentencing system itself. Only a tiny frac-
long as it is done determined by the courthouse door one enters tion of pardon applications actually receive
under the table but rather by a just assessment of the offense substantive review and an even smaller
and offender in light of punishment received amount are granted by the president.143 The
and then masked by similarly situated criminals. Finally, full number is likely to dwindle even further under
above with pass- transparency would guarantee the bona fides the Bush administration, with the pardon
able lies. of sentencing information and judgments, fiasco of fugitive financier Marc Rich still
both in the aggregate and for specific cases. In fresh in the mind of the electorate.
this way, a new system of sentencing could More importantly, an infrequently used,
navigate between the Scylla of arbitrariness in postconviction approach cannot even start to
the indeterminate sentencing era and the ameliorate the harsh punishment demanded

22
by the Guidelines. As suggested by the head of tion of the Guidelines, tinkering with case American con-
the NAACP’s criminal justice project, “Kemba facts, for instance, in order to reach an agree- cepts of justice
is . . . just the tip of the iceberg.”144 Clarence able sentence. Although this nullification may
Aaron and Dale Yirkovsky will remain in fed- lead to just outcomes in particular cases, the demand that the
eral lock-up, as will countless other low level process of fact bargaining engages the parties Guidelines be
and first-time offenders who received cruel in blatant dishonesty, unbecoming to officers
sentences under the Guidelines. They were of the court. This corruption not only subverts
scrapped and the
punished not by the respective trial courts, but the moral authority of the federal system, but commission dis-
by a dehumanizing process that prevents also conflicts with the democratic prerequi- banded.
moral judgment. Absent a repeal of the sites of open and accountable government. As
Guidelines, many more defendants will follow a result, many practitioners, jurists, and even
them into prison, fodder for the thoughtless average citizens have come to view the
machine that is federal sentencing.145 Guidelines with cynicism and contempt.
American conceptions of justice demand There are many possible paths to positive
that the Guidelines be scrapped and the com- change, all leading to the dissolution of the
mission disbanded. Congress created an commission and the repeal of its Guidelines.
unconstitutional “fourth branch” of govern- Brave members of Congress might step up to
ment, with the commission assuming the the plate of their own accord, recognizing the
power to make law but lacking any type of injustice of the current system and instigat-
political accountability. Moreover, the com- ing a new era of sentencing reform. A blue-
mission has usurped much of the judiciary’s ribbon commission, representing all parties
traditional authority over sentencing through with a stake in federal sentencing, could be
its enactment of mandatory Guidelines that impaneled and empowered to design an
all but eliminate the capacity of trial courts to approach to punishment that avoids the
mete out individualized punishment. In turn, Guidelines’ many vices. It even seems possi-
the current system has drastically expanded ble that the citizenry itself might grow weary
the power of federal prosecutors, giving them of the enormous financial and human costs,
yet another tool with which to squeeze out placing pressure on Congress to scrap the
information and guilty pleas from defendants Guidelines and start again. But, however
while encouraging law enforcement to play prompted, the American public and its elect-
fast-and-loose with the rules of evidence. ed officials will eventually have to face a fun-
The Guidelines have also undermined the damental choice: Is the sentencing process
legitimacy of sentencing law, diluting and one of man or machine? In a recent speech,
obscuring moral judgment. The complexity of Judge Bruce Jenkins compared federal sen-
the current system generates confusion tencing to speaking with a computer chip:
among both criminal justice actors and lay cit-
izens, while the hypertechnical character of We forget that the computer is just a
the Guidelines produces sentencing variations tool. It is supposed to help, not sub-
that are nearly impossible to justify. The stitute for thought. It is completely
Guidelines also dehumanize the process of indifferent to compassion. It has no
punishment by deeming relevant only certain moral sense. It has no sense of fair-
factors about the offense or offender and ness. It can add up figures, but can’t
ignoring all others, mechanically plugging evaluate the assumptions for which
into the sentencing equation those privileged the figures stand. Its judgment is no
characteristics and then spitting out the bot- judgment at all. There is no algo-
tom line of punishment. rithm for human judgment.146
To temper the severity of federal sentenc-
ing, prosecutors, defense attorneys, and even In the end, the American people must
judges have engaged in the hidden nullifica- decide whether defendants should be sen-

23
tenced by the complex, hypertechnical rules of of the stiffest punishment in the federal system—
on average, more than six years imprisonment for
a mechanical process—or, instead, by an entity all drug crime and about ten years for crack
capable of individualized decisions made pur- cocaine offenses—resulting in a federal prison
suant to wisdom and experience. If the last 15 population of 60% drug offenders.”
years have proven anything, it is that justice in
4. See 1999 Sourcebook, p. 526.
sentencing cannot be served by the convoluted
rules of a distant bureaucracy. Only trial 5. Ibid., p. 442.
judges can mete out punishment that fits
both the offense and the offender, mindful of 6. See, for example, Paul D. Borman, “The Federal
Sentencing Guidelines,” Thomas M. Cooley Law
the deeply held notion that people must be Review 16 (1999): 4.
treated as unique beings worthy of individual-
ized treatment and not as undifferentiated 7. 21 U.S.C. § 844 (2000). Congress has enacted a
objects on the conveyor belt of sentencing. “safety valve” provision that allows certain first-
time, nonviolent drug offenders to escape manda-
Ultimately, Congress must end the Guidelines tory minimum sentences. See 18 U.S.C. 3553(f)
era and begin anew, guaranteeing that the (2000).
next 15 years of federal punishment will not
be like the last. It is time to scrap the commis- 8. U.S. Sentencing Commission, Special Report to
If the last 15 years sion and its Guidelines, and to embark on a
the Congress: Mandatory Minimum Penalties in the
Federal Criminal Justice System (Washington: U.S.
have proven any- new age of moral judgment in sentencing. Sentencing Commission, 1991), pp. ii–iv.
thing, it is that 9. See Michael Tonry, Sentencing Matters (New
justice in York: Oxford University Press, 1996), p. 83. In the
Notes words of Professor Nancy King, the Guidelines
sentencing can- 1. Michael Tonry, “Sentencing Commissions and have created “a super-complex set of mandatory
Their Guidelines,” in Crime and Justice: An Annual minimums.” Quoted in David E. Rovella, “A
not be served by Review of Research, ed. Michael Tonry (Chicago: Looming ‘Apprendi’ Tsunami? Experts Predict
Acceleration of Court Sentencing Reform,”
the convoluted University of Chicago Press, 1993), vol. 17 p. 138.
National Law Journal, January 8, 2001, p. A1.
rules of a distant 2. See Bureau of Justice Statistics, 1999 Sourcebook
of Criminal Justice Statistics, (Washington, Govern- 10. Tonry, Sentencing Matters, p. 83. See also Michael
bureaucracy. ment Printing Office: Department of Justice, Tonry, “Mandatory Minimum Penalties and the
2000), p. 500. U.S. Sentencing Commission’s ‘Mandatory
Guidelines,’” Federal Sentencing Reporter 4 (1991): 129.
3. See Erik Luna, “Drug Exceptionalism,”
Villanova Law Review 47 (2002):770. “On the pros- 11. See Special Report, p. ii; U.S. Sentencing
ecution side, nearly one-third of all criminal mat- Commission, Annual Report—1990 (Washington: U.S.
ters investigated by U.S. Attorneys are for suspect- Sentencing Commission, 1991), p. 1.
ed drug offenses, almost double the percentage
from the early 1980s. In turn, drug offenders were 12. José A. Cabranes, “Sentencing Guidelines: A
more likely than others to be prosecuted in feder- Dismal Failure,” New York Law Journal, February
al court. In 1981, drug defendants accounted for 11, 1992, p. 2; United States v. Harrington, 947 F.2d
less than one-fifth of all federal prosecutions, but 956, 964 (1991) (Edwards, J., concurring); and
comprised 37% of prosecutions in 1999. From the Lawrence Karlton, “Commentary,” Federal
judicial perspective, the number of drug cases per Sentencing Reporter 4 (November/December 1991):
federal trial judge more than tripled since the 186.
early 1980s,while the number of drug defendants
in federal court more than quadrupled over the 13. G. Thomas Esele, “The Sentencing Guidelines
past two decades. As could be expected in light of System? No. Sentencing Guidelines? Yes.” Federal
these numbers, there are more drug cases and Probation (December 1991): 20.
convictions in the federal system than for any
other offense, constituting more than 35% of all 14. Ibid., p. 21 (quoting Judge Donald Lay).
convicted defendants in federal court. . . . In 1999,
92% of those convicted of federal drug crimes 15. Federal Courts Study Committee, Report of the
received prison time, and of those who were incar- Federal Courts Study Committee (Washington:
cerated, 61% were subject to mandatory mini- Administrative Office of the U.S. Courts, 1990),
mum sentences. Drug defendants received some pp. 133–44.

24
16. Federal Judicial Center, The United States the Wake of Guidelines: Unacceptable Limits on
Sentencing Guidelines: Results of the Federal Judicial the Discretion of Sentencers,” Yale Law Journal
Center’s 1996 Survey (Washington: Federal Judicial 101 (1992): 1688–89; José A. Cabranes, “A Failed
Center, 1997); Federal Judicial Center, Planning for the Utopian Experiment,” National Law Journal, July
Future: Results of a 1992 Federal Judicial Center Survey of 27, 1992, p. 17.
United States Judges (Washington: Federal Judicial
Center, 1994). See also Don J. DeBenedictis, “The 23. See, for example, Stith and Cabranes, Fear of
Verdict Is In,” American Bar Association Journal 79 Judging, pp. 106–12.
(1993): 78.
24. Frankel, Criminal Sentences, p. 49.
17. For brief historical reviews of federal sentenc-
ing, see Kate Stith and José A. Cabranes, Fear of 25. Ibid., p. 5.
Judging: Sentencing Guidelines in the Federal Courts
(Chicago: University of Chicago Press, 1998), pp. 26. Ibid., pp.118–24.
9–22; Douglas A. Berman, “Balanced and
Purposeful Departures: Fixing a Jurisprudence 27. Ibid., p. 114.
That Undermines the Federal Sentencing
Guidelines,” Notre Dame Law Review 76 (2000): 28. Ibid., p. 113.
25–30; Kate Stith and José A. Cabranes, “Judging
under the Federal Sentencing Guidelines,” 29. Ibid., p. 115.
Northwestern University Law Review 91 (1997):
1248–54; and William J. Powell and Michael T. 30. See Mary Pat Flaherty and Joan Biskupic,
Cimino, “Prosecutorial Discretion under the “Despite Overhaul, Federal Sentencing Still
Federal Sentencing Guidelines: Is the Fox Misfires,” Washington Post, October 6, 1996.
Guarding the Hen House?” West Virginia Law
Review 97 (1995): 374–379. 31. Statement of Sen. Kennedy, Congressional
Record (September 30, 1982)128, p. S12,784.
18. See Anthony Partridge and William B.
Eldridge, The Second Circuit Sentencing Study: A 32. See Stith and Cabranes, Fear of Judging, pp. 43–47;
Report to the Judges of the Second Circuit (Washington: Ogletree, p. 1944 n.35.
Federal Judicial Center, 1974).
33. See Stith and Cabranes, Fear of Judging, pp. 47–48;
19. Ibid., pp. 1–3, 9. Congress subsequently relied Flaherty and Biskupic, “Despite Overhaul, Federal
on the Second Circuit Sentencing Study in enact- Sentencing Still Misfires,” Washington Post, October 6,
ing the Sentencing Reform Act and creating the 1996.”
U.S. Sentencing Commission. See Senate
Committee on the Judiciary, Comprehensive 34. See 18 U.S.C. § 3553 (a) (2000); Senate Committee
Crime Control Act of 1983, 98th Cong. 1st sess., on the Judiciary, Comprehensive Crime Control Act of
1983, S. Rept. No. 225, 1, 39, reprinted in 1984 1983, 98th Cong. 1st sess., 1983, S. Rept. No. 225, 1, 39,
U.S.C.C.A.N. 3182, 3224–27. reprinted in 1984 U.S.C.C.A.N. 3182, 3222.

20. See, for example, Marvin E. Frankel, Criminal 35. 28 U.S.C. § 991 (2000).
Sentences: Law without Order (New York: Hill and
Wang, 1973); Marvin E. Frankel, “Lawlessness in 36. 28 U.S.C.A. § 994(b)(2) (2000).
Sentencing,” University of Cincinnati Law Review 41
(1972): 1; Marvin E. Frankel, “Sentencing 37. 28 U.S.C.A. § 994(d) (2000).
Guidelines: A Need for Creative Collaboration,”
38. 28 U.S.C. § 991(a) (2000).
Yale Law Journal 101 (1992): 2043.
39. Mistretta v. United States, 488 U.S. 361 (1989).
21. See Stith and Cabranes, Fear of Judging, pp. 30–31;
Michael Tonry, “Twenty Years of Sentencing
40. Ibid., p. 427 (Scalia, J., dissenting).
Reform: Steps Forward, Steps Backward,”
Judicature 78 (1995): 170. 41. Ibid.
22. See Stith and Cabranes, Fear of Judging, p. 31; 42. Ibid., pp. 414–15.
Berman, pp. 26–28; Powell and Cimino, p. 379;
Frankel, “Sentencing Guidelines,” pp. 2044–45; 43. U.S. Constitution, art. I, sec. 1.
Charles J. Ogletree Jr., “The Death of Discretion?
Reflections on the Federal Sentencing 44. See 28 U.S.C. § 994(p) (2000).
Guidelines,” Harvard Law Review 101 (1988):
1942–44; Daniel J. Freed, “Federal Sentencing in 45. See S. Rept. 225, pp. 3363–64; United States v.

25
Lopez, 938 F.2d 1293, 1297 (1991); Stith and Cabranes, Fear of Judging, p. 63. Much of the
Cabranes, Fear of Judging, pp. 40, 56–57, 95; Stith increase in average sentences can be traced to the
and Cabranes, “Judging Under,” pp. 1271–72. elimination of parole, restrictions on probation,
and the enactment of mandatory minimum sen-
46. U.S. Sentencing Commission, Supplementary tences, particularly for drug crimes.
Report on the Initial Sentencing Guidelines and Policy
Statements (Washington: U.S. Sentencing Com- 52. See, for example, Elizabeth T. Lear, “Is
mission, 1987), p. 19. Conviction Irrelevant?” UCLA Law Review 40
(1993): 1179; Kevin R. Reitz, “Sentencing Facts:
47. Mistretta, at 396. Travesties of Real-Offense Sentencing,” Stanford
Law Review 45 (1993): 523; and David Yellen,
48. See, for example, Stith and Cabranes, Fear of “Illusion, Illogic, and Injustice: Real Offense
Judging, p. 48; Tonry, Sentencing Matters, p. 84; Sentencing and the Federal Sentencing Guide-
Ogletree, p. 1948; and Jeffrey S. Parker and Michael lines,” Minnesota Law Review 78 (1993): 403.
K. Block, “The Limits of Federal Criminal
Sentencing Policy; Or Confessions of Two 53. See Frank J. Murray, “Court Revisits ‘Apprendi’
Reformed Reformers,” George Mason Law Review 9 Precedent,” Washington Times, April 23, 2002, p. A6;
(2001): 1019. Vivian Berger, “Will ‘Apprendi’ Live On?” National
Law Journal, April 8, 2002, p. A17; and Linda
49. Although rehabilitation was included as a sen- Greenhouse, “Court to Weigh Criminal Sentenc-
tencing goal, see 18 U.S.C. § 3553(a)(2)(D) (2000), ing,” New York Times, December 11, 2001.
the Sentencing Reform Act also notes “the inap-
propriateness of imposing a sentence to a term of 54. 530 U.S. 466, 490 (2000). See also Ring v.
imprisonment for the purpose of rehabilitating Arizona, 122 S.Ct. 2428 (2002) (requiring that
the defendant or providing the defendant with juries determine sentence of death).
needed educational or vocational training, med-
ical care, or other correctional treatment.” 28 55. See, for example, Harris v. United States, 122
U.S.C. § 994(k) (2000). S.Ct. 2406 (2002) (attempting to articulate a dis-
tinction between sentencing factors and elements
50. A few commentators have suggested that the of crime).
Guidelines’ commitment to incremental harm was
the vestige of a preliminary draft by Commissioner 56. See, for example, Stith and Cabranes, Fear of
Paul Robinson, a distinguished scholar and “just Judging, p. 48 (arguing that “the U.S. Sentencing
deserts” theorist. Although Robinson later Commission from its inception has been highly
resigned over the commission’s failings, his draft visible to bar and bench, acutely sensitive to the
was the only fully developed sentencing model political environment in which it operates, and
with time running out, and according to some controversial”); Tonry, Sentencing Matters, p. 84
commentators, it served as the model for the final (noting that the Commission’s “work was highly
Guidelines. See Stith and Cabranes, Fear of Judging, politicized from the outset, and it was riven by
pp. 53–55; Tonry, Sentencing Matters, pp. 86–89; and ideological factionalism and political intrigue.”)
“Conference on the Federal Sentencing Guidelines:
Summary of Proceedings,” Yale Law Journal 101 57. Parker and Block, p. 1019. Michael Block “was
(1992): 2073 (comments of Judge Jon Newman). In an initial member of the Commission, serving
my conversations with Professor Robinson, howev- from its inception in 1985 until 1989.” Ibid., p.
er, he suggests that any credible punishment 1003 n.13.
scheme would necessarily take into account result-
ing harm, at least to the extent that such harm can 58. Stith and Cabranes, Fear of Judging, p. 95.
be traced to the defendant’s culpability. Moreover,
Robinson issued a scathing dissent from the final 59. See Parker and Block, pp. 1022–25.
Guidelines, dispelling any claims that his position
on sentencing supports the current federal system. 60. Albert W. Alschuler, “The Failure of Sentenc-
See Paul H. Robinson, “Dissent from the United ing Guidelines: A Plea for Less Aggregation,”
States Sentencing Commission’s Proposed University of Chicago Law Review 58 (1991): 926.
Guidelines,” Journal of Criminal Law and Criminology
77 (1986): 1112. 61. Ibid.

51. According to one estimate, average nominal 62. Robert F. Howe, “Drug Sentencing Faulted;
sentences increased nearly 80 percent under the Benefits for Snitches Leave Some Out in Cold,”
Guidelines (from 28 months to 50 months) while Washington Post, February 25, 1991.
actual time served ballooned by 230 percent
(from 13 months to 43 months). Stith and 63. Quoted in ibid. See also Mary Pat Flaherty and

26
Joan Biskupic, “Prosecutors Can Stack the Deck; Pennsylvania Law Review 142 (1993): 513.
Sentencing Powers Shift from Judges,” Washington
Post, October 7, 1996 (discussing sentencing dis- 75. Stith and Cabranes, Fear of Judging, p. 5.
parity between two brothers based on coopera-
tion with prosecutors); and United States v. Ives, 984 76. After poring over “page after page of amend-
F.2d 649 (1993) (same). ments, examples, and references to other sec-
tions” in the Manual, Judge John Rhodes argues
64. U.S. Sentencing Guidelines Manual § 1B1.3(a)(2) that “one will be left with the distinct impression
(2000). that confusions reign and further amendments
are on the way.” Mary Pat Flaherty, “Innocent
65. The results can be stunning and disconcerting, Errors Add Years to Terms of Guilty Parties,”
with undercover agents encouraging suspects to act in Washington Post, October 6, 1996, p. A21.
ways that increase their own punishment through a
process of “sentence entrapment” or “sentence manip- 77. See, for example, Flaherty and Biskupic,
ulation.” Federal officials are particularly notorious for “Despite Overhaul.”
structuring arrests to maximize the number of guns or
drugs that can be pinned on a suspect. See Flaherty 78. Mary Pat Flaherty, “Innocent Errors” (quoting
and Biskupic, “Prosecutors Can Stack the Deck,” p. Judge John Rhodes); Tonry, Sentencing Matters, pp.
A1. One agent even persuaded a drug defendant to 98–99.
convert her cocaine from powder to crack, upping her
sentence exponentially. See United States v. Shepherd, 857 79. Stephen Breyer, “Federal Sentencing
F.Supp. 105 (D.D.C. 1994), vacated by 102 F.3d 558 Guidelines Revisited,” Federal Sentencing Reporter
(D.C. Cir. 1996). 11 (1999): 180. Some lines that have been drawn
by the Guidelines “seem crazy” and “loony,” such
66. See United States v. Watts, 519 U.S. 148 (1997). as counting the weight of the carrier medium
impregnated with LSD in determining the sen-
67. Stith and Cabranes, Fear of Judging, p. 140, cit- tencing range. United States v. Marshall, 908 F.2d
ing Brief of Appellee, pp.17–18, United States v. 1312, 1332, 1333 (7th Cir. 1990) (Posner, J., dis-
Fulton, No. 96–1029 (1996). See United States v. senting). Under the initial Guidelines, a first-time
Fulton, 173 F.3d 847, 1999 WL 132172 (upholding offender caught selling 100 doses of LSD in sugar
upward departure based on proof of murder). cubes would receive a sentence of between 188
and 235 months. But if he had sold his stash on
68. United States v. Tejada, 956 F.2d 1256 (1992). blotter paper, his punishment would decrease to
63–78 months; if he sold the LSD in gelatin cap-
69. See, for example, United States v. Ebbole, 917 sules, his sentence would have been 27–33
F.2d 1495, 1495–96 (1990) (increase from one months; and if he sold the drug in pure form, he
gram to 1.7 kilograms of cocaine). would have received a term of just 10–16 months.
See Chapman v. United States, 500 U.S. 453, 458 n.2
70. 67 F.3d 1312 (1995). (1991). In each scenario, the amount of intoxicant
peddled remains the same, only the length of
71. On the third day of deliberations, “the jury sent a imprisonment changes. Although the Supreme
note to the court: ‘Honorable Judge Curran, the jury is Court somehow found this scheme “rational”
unable to reach a unanimous verdict, in spite of (ibid., pp. 465–66), the commission eventually
intense discussion and all of the information provided changed the Guidelines to limit the carrier medi-
by the court. How do we proceed?’” Ibid., at. 1318. um’s effect on sentences for LSD-related crimes.
According to reviewing judge Richard Posner, “the U.S. Sentencing Guidelines Manual § 2D1.1; ibid.,
jurors were actually rather troubled by the issue of App. C. Nonetheless, LSD offenders continue to
guilt—enough so that the judge had to give [a special receive lengthy sentences, based in part on the car-
instruction] to blast a verdict out of them.” United States rier medium, with little chance of mercy. See
v. Rodriguez, 73 F.3d 161, 162 (1996) (Posner, J., dis- United States v. Camacho, 261 F.3d 1071 (11th Cir.
senting). 2001) (LSD offender resentenced under amended
Guidelines); United States v. Sia, 104 F.3d 348, 1996
72. 73 F.3d at 162. WL 728191 (1st Cir.) (same).
73. John Griffiths, “Ideology in Criminal 80. Flaherty and Biskupic, “Despite Overhaul”
Procedure or ‘A Third Model’ of the Criminal (quoting Judge Samuel Kent).
Process,” Yale Law Journal 79 (1970): 359 (describ-
ing the “Battle Model” of the criminal process). 81. See Stith and Cabranes, Fear of Judging, p. 84
(arguing that “the Guidelines threaten to trans-
74. Guido Calabresi, “What Makes a Judge Great: form the venerable ritual of sentencing into a
To A. Leon Higginbotham, Jr.,” University of puppet theater”).

27
82. Tonry, Sentencing Matters, p. 98, quoting Alfred 91. U.S. Sentencing Guidelines Manual 2A2.2(b)(2)(C).
Blumstein et al., Research on Sentencing: The Search
for Reform (Washington: National Academy Press, 92. The Guidelines’ limited leeway might be more
1983), p. 159. palatable if trial judges had ample means to
depart from the initial sentencing range, but
83. Stith and Cabranes, Fear of Judging, pp. 6, 30. commission interpretations and appellate rulings
have confined departures to two circumstances.
84. Max Weber, Economy and Society (Berkeley: First, prosecutors can request a downward depar-
University of California Press, 1978), p. 886, quot- ture from the sentencing range based on the
ed in Stith and Cabranes, ibid., p. 30. defendant’s substantial assistance. The decision
to seek this type of departure rests solely with the
85. Jack B. Weinstein, “A Trial Judge’s Second government, however, and provides no indepen-
Impression of the Federal Sentencing Guidelines,” dent discretionary authority for the district court.
Southern California Law Review 66 (1992): 366. The second basis for departure is where the judge
finds a factor “not adequately taken into consid-
86. Joan Biskupic and Mary Pat Flaherty, “Loss of eration” by the commission, requiring a sentence
Discretion Fuels Frustration on Federal Bench; different from that prescribed by the Guidelines,
Most District Judges Want Shift in Sentencing 18 U.S.C. § 3553(b) (2000). The relevant statutory
Rules,” Washington Post, October 8, 1996 (quoting provision was intended to provide a type of safety
Judge Judith Keep). valve for the courts to deal with unique situations
that fall outside the “heartland” of cases
87. Remarks of Hon. Morris E. Lasker, U.S. amenable to a given sentencing range. See U.S.
District Judge for the Southern District of New Sentencing Guidelines Manual § 1A4.b (“The
York, before the Symposium on Sentencing Commission intends the sentencing courts to
Guidelines, September 9, 1997, www.november. treat each guideline as carving out a ‘heartland,’ a
org/dissentingopinions/Lasker.html. The Guide- set of typical cases embodying the conduct that
line’s “mechanical jurisprudence” or “sentencing each guideline describes. . . . When a court finds
by the numbers,” as some jurists have called it, an atypical case, one to which a particular guide-
converts a judge as moral actor into an “automa- line linguistically applies but where the conduct
ton,” “rubber-stamp bureaucrat,” “notary public,” significantly differs from the norm, the court may
or “accountant.” See “Summary of Proceedings,” consider whether a departure is warranted.”).
p. 2054 (comments of Judge Edward Becker); Unfortunately, the commission has determined
Cabranes, “Failed Utopian Experiment,” p. 17; that departures from the heartland should be
Stith and Cabranes, Fear of Judging, p. 169; “rare,” in large part because most circumstances
Weinstein, p. 364; Frank S. Gilbert, “The have already been considered and either incorpo-
Probation Officer’s Perception of the Allocation rated into the Guidelines or expressly rejected.
of Discretion,” Federal Sentencing Reporter 4 (1991): Wary of this alleged preemption, the federal
109; and Ellsworth A.Van Graafeiland, “Some appellate courts have been downright miserly in
Thoughts on the Sentencing Reform Act of foreclosing heartland-based departures. See
1984,” Villanova Law Review 31 (1986): 1293–94. United States v. Weinberger, 91 F.3d 642, 644 (4th
See also United States v. Russell, 685 F.Supp. 1245, Cir. 1996) (“Given the comprehensive sentencing
1249 (N.D. Ga. 1988) (“[The Guidelines] reduce structure embodied in the guidelines, ‘[o]nly
the role of the sentencing judge to filling in the rarely will we conclude that a factor was not ade-
blanks and applying a rigid, mechanical formu- quately taken into consideration by the
la.”); United States v. Justice, 877 F.2d 664, 666 (8th Commission.’”).
Cir. 1989) (“sentencing has been relegated to a
somewhat mechanical process”); United States v. 93. Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993).
Bogle, 689 F.Supp. 1121, 1163 (S.D. Fla. 1988)
(Aronovitz, J., concurring) (describing federal sen- 94. 28 U.S.C. § 994(d) (2000).
tencing as a “mechanistic administrative formu-
la”). In the end, laments Judge Weinstein, the 95. U.S. Sentencing Guidelines Manual § 5H1.1 (age); §
Guidelines “tend to deaden the sense that a judge 5H1.2 (education and vocational skills); § 5H1.3
must treat each defendant as a unique human (mental and emotional conditions); § 5H1.4 (phys-
being.” Weinstein, p. 366. ical condition, including drug or alcohol depen-
dence or abuse); § 5H1.5 (employment record); §
88. Utah Code Annotated, (Lexis Law Publishing, 5H1.6 (family ties and responsibilities, and com-
1982), secs. 76-5-103, 76-3-203. munity ties); § 5H1.11 (prior good works, includ-
ing military, civic, charitable, or public service); §
89. Cal. Penal Code, sec. 245(a)(2). 5H1.12 (lack of guidance as a youth).
90. 18 U.S.C. § 111(b) (2000). 96. Alschuler, p. 902.

28
97. See Tonry, Sentencing Matters, pp. 11, 72–99. University Law Review 91 (1997): 1284; Ilene H. Nagel
and Stephen J. Schulhofer, “A Tale of Three Cities: An
98. See Stephen J. Schulhofer, “Assessing the Empirical Study of Charging and Bargaining Practices
Federal Sentencing Process: The Problem Is under the Federal Sentencing Guidelines,” Southern
Uniformity, Not Disparity,” American Criminal California Law Review 66 (1992): 501.
Law Review 29 (1992): 835, 851–70.
109. United States v. Rodriguez, 162 F.3d 135, 150–52
99. Ilene H. Nagel, “Foreword: Structuring (1998).
Sentencing Discretion: The New Federal
Sentencing Guidelines,” Journal of Criminal Law 110. Ibid., at 152.
and Criminology 80 (1990): 883, 934.
111. Berthoff v. United States, 140 F.Supp.2d 50, 66
100. See United States v. Rodriguez, 724 F.Supp. (D.Mass. 2001) (discussing Rodriguez).
1118, 1122 (1989).
112. Ibid., pp. 66, 90–91.
101. Ibid.
113. Flaherty and Biskupic, “Prosecutors Can
102. See Biskupic and Flaherty, “Loss of Discretion,” Stack the Deck” (quoting Larry Silverman).
p. A1 (comparing sentences for drug offender and
murderer). But see Erik Luna, “The Prohibition 114. Schulhofer and Nagel, “Guideline
Apocalypse,” DePaul Law Review 46 (1997): 485 Circumvention,” p. 1312.
(“Former ‘drug czar’ William Bennett would behead
drug dealers. Nancy Reagan branded casual users 115. Weinstein, p. 365 (quoting anonymous fed-
‘accomplice[s] to murder,’ and the erstwhile police eral judge).
chief of Los Angeles, Daryl Gates, opined that even
occasional drug users should be ‘taken out and 116. See Erik Luna, “Transparent Policing,” Iowa
shot.’”). Law Review 85 (2000): 1154–63 (discussing trust
of government, perceived legitimacy, and compli-
103. Flaherty and Biskupic, “Prosecutors Can ance with the law).
Stack the Deck,” (quoting James Druker).
117. See generally Louis D. Brandeis, Other People’s
104. See, for example, Catherine M. Goodwin, Money (1933): 62 (“Publicity is justly commended
“The Independent Role of the Probation Officer as a remedy for social and industrial disease . . . .
at Sentencing and in Applying Koon v. United Sunlight is said to be the best of disinfectants; elec-
States,” Federal Probation, September 1996, p. 71. tric light the most efficient policeman.”)

105. Flaherty and Biskupic, “Prosecutors Can 118. See, for example, Stith and Cabranes, Fear of
Stack the Deck.” Judging, pp. 7, 104–142; Berman, pp. 61–65; Frank O.
Bowman and Michael Heise, “Quiet Rebellion II: An
106. Tony Garoppolo, “Fact Bargaining: What the Empirical Analysis of Declining Federal Drug
Sentencing Commission Hath Wrought,” BNA Sentences Including Data from the District Level,”
Criminal Practice Manual 10 (1996): 405. See also Iowa Law Review 87 (2002): 477; Frank O. Bowman
Eugene D. Natali, “The Probation Officer, Bean and Michael Heise, “Quiet Rebellion? Explaining
Counting and Truth in Sentencing,” Federal Nearly a Decade of Declining Federal Drug
Sentencing Reporter 4 (1991): 103 (“Subtle and cre- Sentences,” Iowa Law Review 86 (2001): 1054; John S.
ative forces began to short-circuit the whole Martin Jr., “The Role of the Departure Power in
process of guideline sentencing. Attorneys for the Reducing Injustice and Unwarranted Disparity
defense and the government found new ways to under the Sentencing Guidelines,” Brooklyn Law
ply their old trade with plea bargains . . . in all Review 66 (2000): 259; James Anderson, Jeffrey Kling,
shapes and sizes . . . stipulations seemed to be fic- and Kate Stith, “Measuring Interjudge Sentencing
tion writings, when compared with the known Disparity: Before and After the Federal Sentencing
facts of the cases they attempted to address.”). Guidelines,” Journal of Law and Economics 42 (1999):
271; Schulhofer and Nagel, “Guideline
107. Probation Officers Advisory Group, Circumvention,” p. 1284; Nagel and Schulhofer, “A
“Probation Officers Advisory Group Survey,” Tale of Three Cities,” p. 501; Gerald W. Heaney, “The
Federal Sentencing Reporter 8 (1996): 303. Reality of Guidelines Sentencing: No End to
Disparity,” American Criminal Law Review 28 (1991):
108. See Stephen J. Schulhofer and Ilene H. Nagel, 161; and Stephen J. Schulhofer and Ilene H. Nagel,
“Plea Negotiations under the Federal Sentencing “Negotiated Pleas under the Federal Sentencing
Guidelines: Guideline Circumvention and Its Guidelines: The First Fifteen Months,” American
Dynamics in the Post-Mistretta Period,” Northwestern Criminal Law Review 27 (1989): 231.

29
119. For purposes of clarification, I should make Dangerfield of federal agencies: it ‘don’t get no
clear my own opinion on drugs and drug crime. respect.’ Despised by judges, sneered at by schol-
As a civil libertarian on issues of criminal justice, ars, ignored by the Justice Department, its guide-
I oppose prohibition as being immoral in theory, lines circumvented by practitioners and routinely
racist and classist in practice, and ultimately des- lambasted in the press, the Commission has,
tined for failure in a free society. But being a civil most alarmingly, fallen out of favor with the
libertarian doesn’t demand sympathy or even tol- Congress that created it.” Ronald Welch, “The
erance for drug criminals such as defendant Battle against Mandatory Minimums: A Report
Rodriguez. Here is an individual who violates from the Front Lines,” Federal Sentencing Reporter 9
drug laws not for his own consumption or addic- (1996): 97.
tion. Rodriguez is not distributing marijuana to
ease the pain of those who suffer from debilitat- 129. Biskupic and Flaherty, “Loss of Discretion.”
ing diseases like cancer and glaucoma. Nor is he a See also United States v. Galloway, 976 F.2d 414, 438
street-level drug offender who engages in crime as (1992) (Bright, J., dissenting) (“Only in the world
part of the reality of being a poor, young, minori- of Alice in Wonderland, in which up is down and
ty male in today’s inner cities. Instead, Rodriguez down is up, and words lose their real meaning,
is the heir to gangster rumrunners like Al Capone, does such a sentence comply with the
becoming rich through a failed government poli- Constitution.”).
cy and demonstrating only indifference to the
larger consequences of his criminality. In all like- 130. Stith and Cabranes, Fear of Judging, p. xi. This
lihood, the identity of the contraband—whether it resignation to the current scheme is evidenced by,
be booze or drugs or guns or whatever—is irrele- among other things, the modest nature of pro-
vant to organized criminals such as Capone and posed congressional reforms. One bill (S. 1834)
Rodriguez. If the national ban on narcotics were attempts to alleviate the grave sentencing dispari-
lifted, such entrepreneurs would find another ty between crack and powder cocaine, increasing
way to partake in the heightened financial mar- the amount of crack while simultaneously
gins of illegal commerce. So just as those who decreasing the quantity of powder cocaine that
opposed alcohol prohibition in the early 20th trigger mandatory minimum sentences. Another
century were not chums of Capone, modern-day bill (H.R. 1978) would simply eliminate mandato-
civil libertarians need not befriend Rodriguez. ry minimums for most drug crime. Both propos-
als offer improvements over the current approach
120. For descriptions of the Smith case, see Libby to narcotics offenses, a major source of discon-
Copeland, “Kemba Smith’s Hard Time,” tent in federal sentencing. But neither bill con-
Washington Post, February 13, 2000; Reginald templates a change to the basic Guidelines
Stuart, “Justice Denied: Kemba’s Nightmare scheme and its impediments to moral judgment
Continues,” Emerge, May 31, 2000, p. 41; and by trial judges.
Reginald Stuart, “Kemba’s Nightmare,” Emerge,
May 31, 1996, p. 28. 131. Luna, “The Prohibition Apocalypse,” p. 564
(quoting Texas Senator Morris Shepard).
121. PBS, “Snitch,” Frontline special, www.pbs.org/
wgbh/frontline/shows/snitch/cases/aaron.html. 132. Flaherty, “Innocent Errors” (quoting Judge
John Rhodes).
122. “Time to Rethink the War on Drugs?” Cato
Institute Policy Forum, May 22, 2001, p. 11 (quot- 133. See, for example, Frank J. Remington, “The
ing criminal defense attorney Dennis Knizely). Federal Sentencing Guidelines as a Criminal Code:
Why the Model Penal Code Approach Is
123. PBS. Preferable,” Federal Sentencing Reporter 7 (1994): 116.

124. Dale Yirkovsky, “Letters to the Editor,” Des 134. Criminal Code Reform Act of 1977, 95th
Moines Register, February 11, 2002. Cong., 1st sess., 1977, S. Rept. 95–605, p. 3.

125. Register Editorial Board, “One Bullet, 15 135. See Powell and Cimino, p. 379.
Years,” Des Moines Register, January 21, 2002.
136. See United States v. Boshell, 728 F.Supp. 632, 637
126 United States v. Yirkovsky, 259 F.3d 704, 707 n.4 (1990): “Regardless of which political party holds
(2001). sway, the process for selecting federal judges is
much the same. Nominees are hung out like fresh
127. United States v. Yirkovsky, 276 F.3d 384, 385 meat to be poked, prodded and examined in
(2001) (Morris, J., dissenting). minute detail as to every aspect of their personal
and professional lives. The first step is to gain the
128. “The Commission has been the Rodney confidence of a nominating senator who will con-

30
duct such investigation as he deems appropriate. Bush to Pardon Drug Dealer,” Associated Press,
Then the FBI, Department of Justice, the American January 9, 2002; Deborah Alexander, “Ruling
Bar Association, and the Judiciary Committee get Forces Judge to Impose Longer Sentence,” Omaha
into the act. Only after surviving scrutiny that far World-Herald, January 9, 2002, p. B4; Deborah
will the Senate consider granting its stamp of Alexander, “Court May Review Dealer’s Sentence,”
approval.” Omaha World-Herald, September 4, 2001, p. B4;
“Man Sentenced in Meth Case,” Tulsa World, June
137. See ibid. “Judges may . . . occasionally ascend 2, 1998, p. 5; Editorial, “Judge Not,” Tulsa World,
the bench without the basic qualifications to January 17, 1998, p. 16; Doug PGrow, “Woman Is
serve, but when the system fails in that manner, it a Footnote in U.S. War on Drugs,” Minneapolis-St.
is aberrational in the extreme.” Paul Star Tribune, April 25, 2001, p. B2; Paul
Gustafson, “First-time Offender Pleads to Lesser
138. Ronald F. Wright, “Rules for Sentencing Offense, Gets 8 Years,” Minneapolis-St. Paul Star
Revolutions,” Yale Law Journal 108 (1999): 1372–79 Tribune, April 25, 2001, p. B2; “Judge Quits Case
(discussing jury sentencing). over Federal Sentencing Guidelines,” Associated
Press, January 20, 2001.
139. Kenneth Culp Davis, Discretionary Justice: A
Preliminary Inquiry (Baton Rouge: Louisiana State 143. See, for example, 1999 Sourcebook, p. 475.
University Press, 1969), p. 27; See Alschuler, pp.
939–49; Biskupic and Flaherty, “Loss of 144. Quoted in Stuart, “Kemba’s Nightmare
Discretion” (quoting Judge Bruce Selya: “People Continues.”
think of it as a game, like Parcheesi.”); Marc
Miller, “True Grid: Revealing Sentencing Policy,” 145. Quoted in “Graduation puts ‘Kemba’s
U.C. Davis Law Review 25 (1992): 588 n. 4 (“The Nightmare’ Further in the Past,” Associated Press,
table looks like the board for the game of ‘GO.’”). May 10, 2002; and Michael Paul Williams,
“Nightmare Shaped a Dream,” Richmond Times-
140. Wright, p. 1386. Dispatch, May 10, 2002.

141. Olmstead v. United States, 277 U.S. 438, 485 146. Bruce S. Jenkins, “The Federal Court System:
(1928) (Brandeis, J., dissenting). for Thinking Press 1, for Compassion Press 2, For
Judgement Press 3,” Vital Speeches of the Day 68
142. See Kevin O’Hanlon, “Judge to Ask President (January 15, 2002): 198.

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