Fear of Judging: Sentencing Guidelines in the Federal Courts.

• Author: Wright, Ronald F.
• Position: Review

Fear of Judging: Sentencing Guidelines in the Federal Courts. By Kate Stith(*) and Jose A. Cabranes.(**) Chicago: University of Chicago Press, 1998. Pp. 276. $44.00 (cloth), $17.00 (paper).

Federal sentencing experienced a revolution fifteen years ago, and many are now convinced that this revolution has become a Reign of Terror. The Thomas Paine of this sentencing revolution--the enthusiastic advocate of a revolution to replace traditional injustice with a new order based on human reason(1)--was a federal judge, Marvin Frankel. In his 1973 book, Criminal Sentences: Law Without Order,(2) Frankel delivered a persuasive indictment of criminal sentencing at that time, which gave great discretion to the sentencing judge: "[T]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law."(3) He argued instead that a "Commission on Sentencing" should pass rules to govern criminal sentences(4) and that judges should apply those rules just as they apply legal rules in all other contexts.(5) Judge Frankel's ideas became the basis for the Sentencing Reform Act of 1984,(6) which transformed federal sentencing and created the United States Sentencing Commission.

Now, over a decade after the creation of federal sentencing guidelines in 1987, a Yale law professor and a second federal judge, Kate Stith and Jose Cabranes, have taken the role of Edmund Burke in this revolution.(7) Their new book(8)surveys the excesses of the sentencing revolution and traces those excesses to a naive trust in human reason. The traditional function of the sentencing judge, they say, is incapable of reduction to rules drafted in the abstract. Stith and Cabranes have written a judicious book aiming to restore the judge to the center of criminal sentencing.

Like Frankel's book twenty-five years ago, this thoughtful book by Stith and Cabranes voices a prevalent view about sentencing and could become the catalyst for a "new cycle of reform."(9) The authors aim for a wide audience: They give enough background about the complicated federal sentencing system to engage readers who are not experts in the field. At the same time, they offer enough specific criticisms and concrete proposals for change to convince those who know the system well. Their proposals for change include some politically realistic amendments, along with more ambitious proposals for a redesign of federal sentences.

While Stith and Cabranes call for a return of sentencing discretion to federal judges, they insist that they do not envision a simple return to unreviewed judicial discretion as it operated before 1987. This is not, they say, a counter-revolution. And they are correct that the sentencing system they have in mind differs in major ways from pre-1987 federal sentencing. Stith and Cabranes would allow judges to sentence without "bureaucratic" rules.(10) They would scale back--indeed, almost eliminate--the influence of government officials other than judges in the design and operation of a federal sentencing system.

A system that gives judges nearly exclusive authority over sentencing, such as the one Stith and Cabranes propose, would fail just as completely as the current one already has. It would demand tasks of judges that they should not--and often cannot--perform. It is true that the current federal sentencing system has become intolerable, for the reasons that Stith and Cabranes ably identify. It is also true, as they argue, that the needed changes are not likely to come from the United States Sentencing Commission. But federal sentencing does not need its downtrodden judges to rise up and exile the other contributors to sentencing policy. Instead, it needs more interaction between judges and other sentencing institutions. Judges must find a place within an institutional fabric, a place that combines their case-specific insights with the system-wide perspectives of others.

In Part I of this Book Review, I summarize Stith and Cabranes's argument and highlight the role of tradition in their view of the current federal sentencing system. In Part II, I describe the almost-forgotten tradition of the sentencing jury in the United States. The historical practices of sentencing juries bring into focus exactly what individual judges contribute to sentencing. Sentencing juries remind us of the need to combine individualized judgments with coordination and planning for sentences in the aggregate. Judges can, under the right conditions, combine these functions in ways that sentencing juries do not. In Part III, I review the critical coordinating functions that individual sentencing judges cannot perform. The Review closes with a few ideas for integrating the wisdom of sentencing judges into a well-coordinated sentencing system.

1. A TRADITION OF JUDGING WITHOUT RULES

   The federal sentencing guidelines, according to Stith and Cabranes, were bound to fail because they contradict deep traditions in the federal system. With the advent of guidelines, they say, "two centuries of sentencing practice in the federal courts came to an abrupt end."(11) While they exaggerate the extent of judicial sentencing authority over the years, Stith and Cabranes do show that the 1987 sentencing guidelines changed federal sentencing practice far more than the Sentencing Commission has ever admitted.

   1. Two Centuries of Judicial Supremacy?

      In the standard rendition of sentencing history in the United States, legislatures dominated sentencing in the colonies. They passed laws linking crimes with specific punishments (such as fines, whippings, or execution) and judges merely imposed the designated sentence post-conviction.(12) Then, after the Revolutionary War, many states revised their criminal codes to provide more often for imprisonment rather than execution or corporal punishments.(13) For most of the nineteenth century, judges chose the length of prison sentences, staying within ranges that the legislature designated. No other institution adjusted that sentence.

      The conventional historical account identifies a major shift in sentencing practices by the end of the nineteenth century with the appearance of parole and probation. These practices, it is said, increased the importance of rehabilitation as a purpose of sentencing and decreased the overall sentencing power of the judge. Although judges still decided who would serve a prison term and who would be supervised while on probation, they lost much of their control over the length of prison terms. Parole boards could now release offenders well before the end of the prison term that the judge announced.(14)

      Stith and Cabranes track the common historical wisdom for the first half of the nation's history, but they put a new spin on the story for the twentieth century. Their reinterpretation of sentencing history enables them to portray the federal sentencing guidelines as a more complete break with the past.

      Stith and Cabranes trace the roots of judicial sentencing discretion back to the earliest federal criminal laws, which usually stated only a maximum term of years and a maximum fine. Eighteenth-century federal criminal statutes gave high maximum terms of imprisonment for a few crimes (such as treason or piracy), shorter maximum terms for other crimes, and allowed the judge to choose any term within the statutory range. Mandatory minimum penalties attached to only a few crimes, and the terms were not severe.(15)

      The authors find evidence that the rehabilitation of offenders was a major purpose of sentencing in the federal system from the beginning, but rehabilitation took different shapes over time. While the sentences that judges handed down in the first part of the nineteenth century were presumed to reform offenders through the atoning power of hard work, the concept changed by the end of the century. Rehabilitating an offender implied a need for ongoing evaluation of the person. Non-judge experts could best determine when an offender had improved enough to warrant release. As a result, in 1910 Congress established the federal parole system.(16)

      Stith and Cabranes argue, however, that parole only cut marginally into the traditional sentencing power of federal judges. They point out that federal judges retained influence over the length of a sentence served, even after parole appeared. Parole only applied to defendants sentenced to incarceration (about half of all federal cases between the 1950s and 1980s). Furthermore, the judge's nominal sentence set the maximum time that could be served, and the defendant was not eligible for parole until he or she had served at least one-third of the nominal sentence. Federal judges made parole available immediately in less than twenty-five percent of all prison cases.(17)

      In their effort to portray recent events as a break with a single continuous tradition, Stith and Cabranes have slighted federal parole. They are correct to point out that federal judges retained more sentencing power under the federal parole system than the sentencing judges in a few states, where the parole board could release offenders before they had served one-third of the judicially-imposed minimum sentence.(18) But federal parole mattered in the cases where the stakes were highest. The most serious crimes did result in active prison terms, and control over prison terms had the most severe consequences for the liberty of the offender and for the public resources devoted to corrections. For this most expensive and important class of cases, federal parole operated as a major constraint on judicial sentencing power.(19) The great majority of federal prisoners were eligible for parole before the end of their terms. Although Stith and Cabranes are correct that most federal prisoners were not immediately eligible for parole, the parole authority did start to matter before the end of most active prison terms...