Eight years ago, I wrote in this post:
The sentence a convicted defendant receives should depend on what he did and what he has done before, not which judge he draws. The Sentencing Reform Act of 1984 was the product of a rare bipartisan consensus on criminal law that judge-to-judge disparity had gone too far and needed to be reined in. The Supreme Court threw out the key element of that reform, mandatory sentencing guidelines, in the Booker case in 2005. We didn't need to be clairvoyant to predict what would happen.
The post reported on a study that sentences were indeed increasingly dependent on which judge was assigned to the case.
Today the United States Sentencing Commission issued a report titled Intra-City Differences in Federal Sentencing Practices. Among the key findings:
In most cities, the length of a defendant's sentence increasingly depends on which judge in the courthouse is assigned to his or her case.
This is outrageous, and it deserves a vigorous response. The correct response is to reinstate the system of mandatory guidelines. Congress got it right in 1984. To the extent that the system impinged on the right to jury trial, the answer was and is to tweak the system so that juries find the disputed facts that fall within the Sixth Amendment right. The Supreme Court in Booker used a meat-axe where a scalpel was called for, replacing the system Congress enacted with a different one. Congress needs to restore the original plan.
Some people are so obsessed with reducing prison population that they view everything on that scale and don't care about details like the basic fairness of treating similarly situated people the same. So here, once more with feeling, is an offer of compromise. In return for reinstating the mandatory system of guidelines, let us repeal all statutory mandatory minimums.
The guidelines, with appropriate appellate review of unwarranted downward departures, will substitute for the minimums. Because the Sentencing Commission will review and revise them from time to time, they will not suffer from the long-standing problem of a legislature enacting a harsh statute in response to a specific crime and then forgetting about it.
I would favor this "compromise" if and only when we also recalibrate many extent guidelines to be less severe. Indeed, doing that alone would likely reduce somewhat (perhaps a lot) these disparities without needing to make the guidelines mandatory.
As I read the USSC data, it seems that the vast majority of judges are now, on average, giving below-guideline sentences and the inter-judge variation turns largely on whether judges go just a little or a whole lot below the guidelines that they generally agree are too harsh in light of the instructions of 3553(a). (This dynamic seems especially in play in child porn, high-loss fraud and lower-level drug cases. Judge draw in these cases seem especially important.)
If the guidelines were calibrated better, they might earn more respect and be followed more closely by more judges. Notably, the crack guidelines were followed more after the Fair Sentencing Act led to a partial (but insufficient) reduction in sentence lengths.
In part because DOJ has always been resistant to having to prove all enhancements --- remember, DOJ sought the advisory guideline remedy in Booker and has never really pushed to make the guidelines mandatory again thereafter --- I doubt we will see your proposal become law anytime soon. But I sense Judge Pryor would like to see this happen, and maybe you could make a pitch to the next AG.
I don't know that "outrageous" is the adjective I would choose. "Troubling" is a better one.
What if a lenient judge is better at getting sentences "right" (whatever that means)? What if a "hang 'em high" judge does? I think the issue is less theoretical (I don't believe that criminals have the right to "cosmic fairness" in sentencing.) and more practical---judges have shown that they cannot be trusted with public safety.
The Mueller prosecutions are causing nuanced in my "cosmic fairness" view. Manafort, as slimy as he is, is only being prosecuted because of his political connections. That should be unacceptable in a free society.
federalist, I am eager to question your assertion that "judges have shown that they cannot be trusted with public safety" in this particular context.
Federal Judges have been imposing sentence under an advisory system for 13 years now, and the last dozen years have been safer than any period since the 1960s (and there is good reason to think even more crime was not reported back then). I am not asserting "good federal judicial advisory sentencing" accounts for us being so safe, but I am wondering the basis for your saying that the current federal judiciary cannot be trusted in this context.
I will stick with "outrageous." Congress passed a major reform to deal with problems in sentencing, and judge-to-judge variation was one of the principal problems addressed. The Supreme Court rewrote the law in a way that aggravates the very problem Congress sought to address.
Both the problem and the way the Supreme Court exceeded the proper bounds of its authority qualify as "outrageous" in my book.