The Promise of Trailing-edge Sentencing Guidelines

• Jurisdiction: United States,Federal
• Citation: Vol. 14 No. 2012
• Publication year: 2012

NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY VOLUME 14, ISSUE 1: FALL 2012

THE PROMISE OF TRAILING-EDGE SENTENCING GUIDELINES TO RESOLVE THE CONFLICT

BETWEEN UNIFORMITY AND JUDICIAL DISCRETION

Mark Osler*

Until the mid-1980’s, federal judges had broad discretion in sentencing defendants. However, this created disparities in sentencing from one judge to another, and this in turn created a desire for much greater uniformity. The drive for uniformity resulted in a number of strict legislative measures, including mandatory minimum sentences and mandatory sentencing guidelines. Over time, the judiciary branch grabbed back some discretion (largely through the Supreme Court’s Booker decision in 2005, which made the sentencing guidelines advisory rather than mandatory), but this has resulted in a return to disparities.

The underlying problem is a view of sentencing that sees a zero-sum equation between judicial discretion and uniformity— that is, the belief that uniformity must be established by curtailing judicial discretion. This Article argues for a different model: sentencing guidelines that use peer effects and modern technology to directly use judicial discretion to create uniformity. Instead of mandated, arbitrary guidelines, a computer-based sentencing information system would require a sentencing judge to review and consider all the other sentences chosen by judges in similar situations, and this body of experience would functionally become the guidelines. A judge who strays too far from the norm would have to justify that choice based on unusual and compelling circumstances. Such a system would harness discretion as the engine towards uniformity, and discard the false dichotomy between the two that has created so much discord.

• Professor of Law, University of St. Thomas (MN).

  
  

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  1. INTRODUCTION

     Choosing between a positive value and a negative one, between good and evil, is easy: It hardly invites controversy to say that individuals should work hard rather than steal things. What is difficult, though, is to elect just one of two positive values that seem to be in opposition. For example, peace and justice are both good things, but sometimes it may feel necessary to breach the peace in order to pursue justice. Which should one choose: peace or justice?

     This Article looks at one such societal dilemma—the seemingly necessary choice between judicial discretion and uniformity in criminal sentencing, a choice that is often made (via mandatory minimums and sentencing guidelines) in favor of uniformity at the expense of discretion. As the costs of that choice become increasingly clear, it is time to consider a different resolution that honors both values by using the discretionary choices of judges, in the aggregate, to serve as guideline measures which then create uniformity through peer effects. In other words, judges’ collective decisions at sentencing should literally become the guidelines through the use of a computer-based sentencing information system.

     The challenge considered here is not unique. Perceived trade- offs between positive attributes are a common problem in many fields. For example, for decades automotive engineers struggled with a fundamental dilemma in developing car engines. There was a strict trade-off between three attributes that those engineers wanted to attain: power, gas mileage, and pollution control. Fast cars got bad mileage and polluted the air. Cleaner cars got good mileage but did not have much pep. Finally, developing technology provided an answer—the hybrid car. By adding an electric motor to run in tandem with a gasoline engine, engineers could design and build a car that was much cleaner and got far better mileage, while providing as much or more power. No longer were mileage, pollution, and performance in opposition, and the only losers were those who did not take advantage of this new ability.

     While automotive engineers struggled with the competing

     
     

     values of mileage, pollution, and performance, those in the field of sentencing have long struggled with the tension between judicial discretion and the uniformity of sentences. In short, it is the use of discretion by judges that is most often blamed for sentencing disparities—judges often use their freedom, it seems, in disparate ways.1 As with cars, the solution lies in technology: The technologic key proposed here is a computer-driven sentencing information system which would gather and display real-time information about federal sentencing and direct judges in making sentencing decisions.

     The modern debate over sentencing generally assumes that discretion is the enemy of uniformity.2 This oppositional construct became firm in 1984. With the passage of the Sentencing Reform Act that year,3 Congress made a striking choice to pit these two interests against one another. By imposing mandatory sentencing guidelines, judicial discretion was strikingly reduced to ensure uniformity.4 This choice resolved a dilemma discussed for years:

     
     

     1. Other factors, such as prosecutorial practices, also act to create disparities, but are not addressed here.

     2. See infra Part III.A. Few would disagree with the claim that both judicial discretion and uniformity are good things, however. The discernment of

     carefully chosen and experienced judges to distinguish one case from another is

     a good thing. In fact, it is precisely this type of discretion society looks for in choosing experienced attorneys to become judges, and it is to protect the free and proper use of such discretion that the U.S. Constitution grants those judges a life-long appointment and bars any attempt to lower their pay while in office.

     U.S. CONST. art. III, § 1. Similarly, most would concur that uniformity in sentencing is also a good thing—that a defendant sentenced by one judge should get about the same sentence that she would receive from the judge in the next courtroom. Yet, the current sentencing debate continually views these two positive values as being in zero-sum opposition; to value one is to take away from the other.

     3 18 U.S.C. §§ 3551–3586 (1985).

     1. At the same time, discretion was also taken away from the parole board as the institution of parole was extinguished in the federal system. Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 235, 98 Stat. 2031 (1984) (codified as amended in scattered sections of 18 U.S.C.). The simultaneous

        limitation of judges’ discretion in sentencing and the elimination of parole had the net effect of shifting power from the judicial and executive branches to the

        legislative branch and the newly-formed U.S. Sentencing Commission. Erik

        
        

        how to cabin judicial discretion and get rid of differential sentencing that seemed to be based more on the judge assigned than any other factor.5 After all, went the reasoning, it was the judges’ very employment of their discretion that caused disparities in sentences.

        That choice, to sacrifice the public employment of discretion in the pursuit of uniformity,6 led to decades of turmoil in federal sentencing as the values of discretion and uniformity were set in opposition. In today’s federal courts, the costs of this turmoil include increasing disparities,7 continuing instability in the sentencing system,8 and a disconnect between judges’ decisions and the evolution of the sentencing guidelines.9

        In federal sentencing today, even with advisory rather than mandatory guidelines,10 there remains a strong tension between uniformity (ensuring that similar defendants get similar sentences) and judicial discretion (which allows for judges to come to different results in similar cases). The trade-off exists because the

        
        

        
        

        Luna, Gridland: An Allegorical Critique of Federal Sentencing, 96 J. CRIM. L.

        & CRIMINOLOGY 25, 98–99 (2005) (“[T]he real sentencers in the federal system were the Commission from afar and the prosecutor in the case at bar. The judicial function at sentencing often was nothing more than ceremonial . . . . The judge, in other words, had lost the independence and no longer ensured that justice was done in individual cases.”).

     2. Judges were acutely aware of the fact that their discretion was being limited. Perhaps the best articulation of judges’ objections to this is found in Kate Stith and Jose Cabranes’ FEAR OF JUDGING: SENTENCING GUIDELINES IN FEDERAL

        COURT (1998).

     3. Some, including myself, have argued that judges continued to exercise considerable discretion in ways that often were not reflected in the public record. See, e.g., Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 STAN. L. REV. 85 (2005); Mark Osler, Seeking Justice Below the Guidelines: Sentencing as an Expression of Natural

        Law, 8 GEO. J. L. & PUB. POL’Y 167 (2010).

     4. See infra Part III.B.1. 8 See infra Part III.B.2. 9 See infra Part III.B.3.

     1. In 2005, the Supreme Court held that mandatory guidelines violated the

        Sixth Amendment, and imposed as a remedy the requirement that the federal sentencing guidelines be advisory rather than mandatory. United States v. Booker, 543 U.S. 220, 222 (2005).

        
        

        advisory federal sentencing guidelines try to create uniformity at the direct expense of the sentencing judge’s discretion—the U.S. Sentencing Commission (“the Sentencing Commission” or “the Commission”) directs an appropriate sentence, which then shapes an outcome, and a judge risks reversal if she strays from that guideline.11

        Like the hybrid car, the solution advanced in this Article relies on newly developed technology. Trailing-edge guidelines are simply this: Before sentencing a defendant, a judge enters aggravating and mitigating factors along with criminal history into a computer program, which then shows her an array of data points representing the sentences that similar defendants have received. Clicking on any one of the data points would open a pop-up window with additional data about that individual case.

        This Article calls such guidelines “trailing-edge” because they follow judges’ practices, instead of leading them. A

        ...