Yesterday, I had the opportunity to testify before the Crime and Terrorism Subcommittee of the House Judiciary Committee. The subject was "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker."
The central issue, as I see it, is whether we are going to continue to have luck-of-the-draw sentencing in federal court, or whether we are ready to restore the worthy goals of the Sentencing Reform Act of 1984 as Congress wrote it. That would mean a return to mandatory, rather than advisory, guidelines.
My written testimony is here, (you have to scroll down a couple of inches to where it starts). It largely tracks two articles I wrote for the Federal Sentencing Reporter and for Engage magazine, a publication of the Federalist Society. The five-minute summary I gave orally yesterday follows the break.
More and more people have come to realize that what we are doing now isn't working, and invites random, and sometimes discriminatory, sentencing. Change of some sort is coming. In my view, the looming battle will involve whether we restore the law-oriented system we had, or whether the criminal defense bar and its allies in Congress and on the Sentencing Commission will succeed in creating a half-baked system of "presumptive" guidelines. This will be advertised as more forceful than advisory guidelines but not as "rigid" as the mandatory version. What it will really be -- and what it's intended to be -- is the advisory guidelines pig wearing lipstick.
Thank you Chairman Sensenbrenner and Ranking Member Scott.
Let's say you're in court suing the fellow who rammed your car. He wants to introduce hearsay statements. You object, citing the rule against them. But Judge Jones, who's hearing the case, says, "The Supreme Court has made the hearsay rule merely advisory, and admonished that I, as a trial judge, can't even presume it's reasonable. I get to do what I think best. Objection overruled."
You respond, "But Judge Smith down the hall doesn't allow hearsay statements." To which the court replies, "That's true, and he can do that, but you're not before Judge Smith. You're before me, and I think differently."
The motto inscribed above the Supreme Court is: "Equal Justice Under Law." Is that what anyone would think you had just received?
Not exactly. But that's the system we have today in federal sentencing.
We pride ourselves on being a government of law, not of men. The whole purpose of law is to provide consistent and predictable rules to protect litigants from the idiosyncacies of judges -- who, like all human beings, are subject to the temptations of ideology, temperament and taste. But sentencing now is the opposite of law: It's a lottery.
It wasn't always this way. In 1984, Congress adopted the Sentencing Reform Act. The principal aim of the Act, and the signal purpose of the Sentencing Commission it created, was to rein in irrational disparity in sentencing by establishing mandatory Guidelines.
It did and they succeeded. In the early years, judges followed them more than 75% of the time. But when the Supreme Court decided Booker, it declared that the Guidelines were to be viewed as "advisory only." The result has been predictable. Within-guidelines sentences are now given a bit more than half the time. In three years, at the present rate of decay, the majority of sentences will be outside the guidelines range.
And -- and this is something the public should know -- Guideline departures are anything but evenhanded. Downward departures -- those favoring the criminal -- outnumber upward departures by more than 20 to 1. Many such departures are sought by the government, true, but even discounting for that, departures remain almost exclusively the defendant's playground.
It doesn't need to be like this. The Supreme Court all but said in Booker that Congress could re-design the sentencing system to restore its mandatory character, and Justice Souter recommended exactly that in his concurring opinion in Gall. Congress could act this afternoon to restore mandatory guidelines and the rule of law in sentencing. But it won't, because the Sentencing Commission has given it no guidance. Instead, for more than six years, while sentencing has increasingly slouched back toward luck-of-the-draw disparity, the Commission has ignored the principal purpose for which Congress created it. But it has not been idle. It has compounded the problem by encouraging sentencing courts to consider dubious offender characteristics like voluntary drug use that, precisely to avoid disparity, every previous Commission had discouraged or forbidden. It has also used its time to urge Congress to lower crack cocaine sentences to equal those given for using a less dangerous drug, powder cocaine -- a proposal so radical that the most liberal Congress in decades overwhelmingly rejected it.
No one has argued, or plausibly could argue, that the Commission would have been created to begin with if it were going so steadfastly to ignore its central purpose -- establishing mandatory guidelines -- and so breezily to accept a system as random and watered down as it is now. As the Supreme Court reminded us in Nelson, it has come to the point that trial judges can no longer presume a sentence suggested under the Commission's guidelines is even reasonable, much less correct. It's simply incomprehensible that the taxpayers should continue to provide millions for the promulgation of mere sentencing suggestions the High Court itself views with such skepticism. The Commission should either return to its main job or give the taxpayers a refund.