When the punishment doesn't fit the crime: "... federal penitentiaries are filled with relatively minor offenders ... [who] sit in prison, not because their punishment is morally deserved or achieves some social goal like crime deterrence, but because the guidelines have shifted punishment authority to prosecutors and have converted federal trial judges into rubber-stamp bureaucrats.".

• Author: Luna, Erik
• Position: Law & Justice

IN APRIL, CONGRESS passed an amendment to the U.S. Sentencing Guidelines embedded within the "AMBER Alert" legislation. Although the larger bill was heralded for its provisions protecting kidnapped children through nationwide warnings, the sentencing amendment is likely to have the greatest impact on the Federal justice system, attempting to eliminate the last bit of discretion vested in trial judges when sentencing criminal defendants. Despite the fact that the amendment, in the words of Chief Justice William Rehnquist, "would seriously impair the ability of courts to impose just and reasonable sentences," the bill was enacted with no significant debate or public deliberation. In fact, the entire process seemed little more than a Trojan-horse approach to penal lawmaking, with a troubling change in sentencing law lodged within a larger, virtually unassailable bill. After all, what politician in his or her right mind would dare oppose legislation that protects children?

In its final form, the amendment overturns a Supreme Court case that granted deference to a trial court's decisions, forbids reductions in punishment not considered in the original sentencing hearing, and requires that any downward departures be reported to Congress, creating a de facto "black list" for sentencing judges. If American representatives really were serious about ensuring justice, they would not be adding to the already suspect edifice of punishment--they would be knocking it down. Nonetheless, this most recent congressional twist offers another misstep in Federal sentencing and further reason to rethink the current structure.

The U.S. Sentencing Guidelines refer to the legal framework of rules for sentencing convicted Federal defendants. Once an offender has been investigated by law enforcement, indicted by grand jury, and found guilty at trial or through a plea bargain, the trial judge must determine an appropriate punishment under the statutes. Given the crime of conviction and the defendant's criminal record, a Federal judge typically will sentence the offender to a term of imprisonment and possibly a criminal fine. In reality, however, it is almost Orwellian doublespeak to call the present dictums guidelines, given that judges must follow these sentencing roles or face reversal by appellate courts. The current system attempts to purge sentencing discretion in Federal trial courts--mandating punishment, not guiding it--thus preventing any deviations from the Guidelines' strictures.

Some commentators try to distinguish the Guidelines from another Federal sentencing phenomenon: mandatory minimum terms. These punishment schemes set an absolute floor for sentencing particular offenders. In most cases, for instance, a conviction for possessing five grams of crack cocaine results in an automatic five-year sentence. Like mandatory minimums, the Guidelines set strict parameters for punishment (including a lower limit) absent some basis to depart from the proscribed range. When Congress enacts a mandatory minimum, the relevant range merely shifts upward to meet the legislative mandate. As such, both the Guidelines and statutory minimums are manifestations of the same trend--mandatory or "determinate" sentencing. Far from being alternatives, these two schemes feed off of each other in the caging of judicial discretion.

To be fair, the Guidelines were not the product of hate-mongers or political hacks, but instead stemmed from a grand folly in Federal reform. The current punishment regime was a response to claims of arbitrary and capricious sentencing in the justice system that culminated in the 1970s and early 1980s. For most of American history, primary control over this function was vested in the district court, the trial court of the Federal system. With few exceptions, Congress merely provided maximum terms of incarceration for Federal crimes, allowing trial judges unbounded discretion to sentence offenders short of the upper limit, including no prison time at all (probation). Under a favorable interpretation, Federal trial judges were part social worker, part soothsayer--gauging the length of sentence based on an unguided evaluation of the necessary conditions for rehabilitation and indoctrination of prosocial behavior. In practice, however, the previous establishment suffered serious defects, including dictatorial decisionmaking by censuring judges. The district court was not required to provide justification for any particular punishment, and so long as the term was within the broad statutory boundaries, the edict was not subject to review on appeal. Federal sentencing thus lacked any mechanism to ensure a degree of intercase equity in punishment.

Legal scholars and practitioners came to regard this as fundamentally unfair and "lawless," spurring a somewhat remarkable confluence of critics, each apparently agreeing that unlimited judicial discretion, without written justifications and appellate review, tended to produce intolerable sentencing discrepancies between similarly situated offenders. In particular, an interesting political coalition--including Senators Orrin Hatch (R.-Utah), Ted Kennedy (D.-Mass.), Joe Biden (D.-Del.), and the late Strom Thurmond (R.-S.C.)--led the fight to pass the Sentencing Reform Act in 1984. This revolutionary piece of legislation ended...