Five years ago the Supreme Court struck down mandatory sentence guidelines (making them merely advisory) with predictable results. As revealed by a recent study of the Massachusetts federal courts, sentence disparities have increased
[The] effect of the judge on sentence length has doubled in strength. Some 'business as usual' judges continue to sentence below the guideline range at essentially the same rate ... while other 'free at last' judges now sentence below the guideline range at triple or quadruple their (2005) levels.
Reactions to these findings have been equally predictable. The sentence disparities are either defended as reflections of individualized sentencing for individual defendants, or assailed as markers of arbitrary, unequal justice. "[This] offends our notions of equality and consistency and the rule of law that an offender's sentence should depend on which judge happens to be assigned to the case," the study's author Ryan W. Scott told the Boston Globe. District Court Judge Nancy Gertner countered, "We could have uniformity in the district of Massachusetts if everyone got 10 years for everything. But everyone would understand that would not be a sentencing regime that took into account real, meaningful differences between offenders."
Judges have long chafed at mandatory sentence guidelines and mandatory minimum sentences, which were not effected by the Supreme Court's ruling on guidelines, for eliminating judicial sentencing discretion when justice requires it. Mandatory minimum sentences in drug cases are notoriously unjust: The laws "don't differentiate between the kingpin and the schnook," one federal judge remarked years ago (to the American Bar Association Journal), and they have filled our prisons with non-violent, low level drug offenders. Three strikes laws that mandate life imprisonment for anyone convicted of a third felony have resulted in life sentences for non-violent crimes -- sentences that the Supreme Court declined to strike down as cruel and unusual in a case involving a California man sentenced to life for stealing three golf clubs while on parole.
How did we get here? As I wrote in The Atlantic some 15 years ago, (and in It's All the Rage) sentencing guidelines were originally conceived as liberal reforms aimed at achieving equality or parity in sentencing. In 1972, Federal judge Marvin Frankel called for a sentence commission in an influential book, Criminal Sentences: Law Without Order, and Senator Kennedy introduced a sentencing commission bill in 1975. But when it finally passed, nearly ten years later, times had changed: sentence reform was "conceived by liberal reformers as an anti-imprisonment and antidiscrimination measure, but finally born as part of a more conservative law-and order crime control measure," Kate Stith and Steve Koh observed in a 1993 Wake Forest Law Review article. Harsh, rigid federal sentencing guidelines were supplemented in the 1980's and '90's by a rash of new mandatory minimum sentences, especially for drug offenses, which exacerbated racial disparities in sentencing. (Congress recently modified but did not eliminate gross differences in sentencing for offenses involving crack and powder cocaine that effectively discriminated against African Americans.)
Advocates for mandatory guidelines and mandatory minimum sentences still argue misleadingly that they limit arbitrariness and discretion in sentencing. They do not. They transfer sentencing discretion from judges to prosecutors: When legislatures dictate particular sentences for particular crimes, prosecutors are effectively empowered to decide how defendants will be sentenced when they choose the crimes with which defendants will be charged. This represents a dangerous concentration of power, and mandatory sentences are useful in coercing inappropriate plea bargains. (My friend Harvey Silverglate offers a detailed review of prosecutorial abuses in Three Felonies a Day.)
Discretion in the administration of justice simply can't be eliminated; but it should be de-centralized to minimize its abuses: apportioned out to police who make arrests, prosecutors who decide whether and how to charge, and judges who determine sentences. Lessen judicial discretion and you increase the discretion of prosecutors; lessen prosecutorial discretion and you'd increase the discretion of police. Isn't it obvious that justice, or some semblance of it, requires checks and balances? It's something of a zero sum game.
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