Sentencing lessons.

• Author: Weisberg, Robert

INTRODUCTION I. MODESTY A. Multiple Purposes B. Institutional Realism C. Our Federal System * Note on states as the source of lessons II. SIMPLICITY III. RESPECT A. A Commission B. Judges 1. The risks of global judicial repairs 2. The role of sentencing judges 3. Appellate judges and sentencing review C. Lawyers IV. TRANSPARENCY * Note on transparency and mandatory sentences CONCLUSION INTRODUCTION

In 1984 the Sentencing Reform Act (SRA) was adopted after years of proposed legislation and hearings in both houses. (1) The SRA established Congress as a national leader in modern sentencing reform--one of the great criminal justice reform movements of the past century. At a time when both liberals and conservatives believed the classic American indeterminate sentencing model had failed, Congress constructively undertook, and, after a long and dogged effort, made great progress in meeting, the challenge of developing a new model of more principled sentencing.

Such a statement of praise will, of course, sound surprising to many criminal justice leaders, since the years have not been kind to the Federal Sentencing Guidelines. They have been the subject of sustained criticism from judges, lawyers, scholars, and members of Congress, and a wide consensus has emerged that the Federal Guidelines have in many ways failed. But some historical perspective reminds us that the new system created by the SRA was a dramatic step toward achieving the goals that both liberals and conservatives continue to invoke: proportionality between crime and sanction, a reasonable balance between uniformity and individualization, due process protections and appellate review, attention to the informed wisdom of sentencing experts, and balanced allocation of power and responsibility among the branches and agencies of government.

Two decades later we are much wiser about the nature and operation of sentencing guidelines systems than we could have been in 1984, especially now that about half of the states have themselves developed modern sentencing systems. (2) And from that historical perspective, we can see the dramatic decisions in Blakely v. Washington (3) and Booker v. United States (4) neither as damaging blows to the system nor even as confirmations of egregious flaws in the system. Rather, they are stages in an inevitable fit-and-start evolution of the system, and they offer a rare opportunity for reassessing and recommitting to the good principles and bipartisan spirit that shaped the SRA. Congress can learn from years of experience and commentary on the Federal Guidelines system and from guidelines systems in many states that have been much more successful.

Blakely and Booker have required legal changes and induced new reflection and reform in sentencing for many states. But the nature of the structured systems in most states has eased the burden of adjusting these systems to the new constitutional mandates. (5) By contrast, the challenge to the Federal Guidelines system is far more foundational and one that the judiciary probably cannot meet by itself. Of course, if we see Blakely as the shock to the federal system, then Booker itself is the Supreme Court's remedy for that shock. But the judiciary as a whole has far less power and discretion to shape the best remedies, and the most thoughtful response to the continuing problems and critiques will require, at some point, the remedial hand of Congress itself.

While Congress has regularly modified the Federal Guidelines system in small ways, it has not before faced an occasion for systematic review. As Congress turned its attention to a legislative response to Booker, the editors of the Stanford Law Review recognized the value of assembling the insights of the nation's leading scholars in the field of sentencing into a current, synthetic statement about the state of sentencing knowledge after twenty-five years of federal and state guidelines reforms. (6)

Sentencing has become a complex and varied field, and the world of sentencing law--indeed much of legal world--looks very different in 2005 than it did thirty years ago before the first modern structured-sentencing system was created. The Stanford Law Review editors believed that leading sentencing scholars could articulate the key lessons from all modern sentencing reforms and offer their knowledge in the form of collective and structured scholarly testimony to Congress. While Congress and the federal system are the principal audience for this Issue, we believe the insights in these chapters have much to offer judges, scholars, policymakers, and lawyers at both the state and federal levels.

Produced in conjunction with the new Stanford Criminal Justice Center, (7) this Issue reflects such an effort to restate the major lessons about sentencing reform from the past twenty-five years, and to do so in a manner that will assist further efforts at reform. (8) Authors were invited to address specific topics so that the entire Issue would encompass the core philosophical, structural, policy, and practical lessons and challenges in designing a successful sentencing system. The chapters in this Issue address the various purposes of sentencing, the special role of federal criminal justice in our federal system, the institutions and actors at the rulemaking and adjudicative stages (including Congress, the Commission, trial and appellate judges, and advocates), and the basic substantive and structural elements of sentencing systems.

In conceiving this Issue, our goal was to provide an overview of knowledge about all essential aspects of the federal system. Each author was invited to summarize learning on a specific topic and to express his or her own views about the implications of that knowledge for further reform. Our goal was not to create consensus among all authors on any one topic or on any general theme. But we did cautiously expect, and now have seen, a substantial (if rough) consensus about the principles and operational goals Congress ought to bear in mind. In this Introduction, we try to capture that consensus, but with a substantial caveat: all the authors speak in their own voices, and the rough collective views we report here are those we derive from the articles themselves, not a formal reflection of any group vote or process. The insights in this Issue are both fresh and accessible, and we believe anyone interested in modern sentencing reform, and especially federal sentencing reform, must read each piece in its own light.

We offer this Issue in the hope that Congress will look seriously at revising the federal system in light of Blakely and Booker and that, in the spirit of the SRA, Congress will want to draw on contemporary expertise and the evolving "intellectual history" of sentencing knowledge in further reforming the federal sentencing system.

1. MODESTY

   The first lesson of sentencing reform is about a necessary dual cast of mind that we might call "substantive modesty moderated by institutional realism." Sentencing is a necessary component of criminal justice; it is a crucial means by which governments implement their criminal laws. But sentencing is not itself criminal law, nor should lawmakers be addressing the larger foundational goals of the criminal law when they devise or reform sentencing systems. To move a level down, Congress (and other actors) should also avoid the mistake of trying to deploy or change sentencing law to solve all the problems or correct all the distortions that plague substantive criminal codes or criminal justice systems. Efforts to do so more often lead to dislocation and distrust than to any real remedy of the problem targeted. More subtly, lawmakers must acknowledge the very limited extent to which the full range of sentencing purposes can be achieved through sentencing, including traditional desert and utilitarian justifications for punishment, the goal of reducing disparity, and communicative and social-norming functions.

   In the years leading up to the SRA, Congress contemplated wholesale revision of the federal criminal code. (9) Indeed, Congress probably realized that bringing coherence to more than 200 years' worth of new and amended crimes--typically without removing older offenses--would, in effect, make the vast collection of federal criminal offenses into a "code" for the first time. But Congress ultimately substituted sentencing reform for code reform, and other actors have followed suit, relying on sentencing rules and individualized sentences to respond to the problems of our substantive federal criminal law, including overlapping and conflicting offenses, perceived disproportionate crimes and sanctions, and perceived excessive severity.

   1. Multiple Purposes

      Sometimes the risk of asking too much from a sentencing system arises from the otherwise valuable notion that sentencing reformers should be steeped in and remain critically mindful of the classical purposes of punishment. In this Issue, Professor Richard Frase offers an elegantly comprehensive and thorough reappraisal of the basic utilitarian and retributivist justifications and goals of criminal punishment. (10) But as Professor Frase implicitly reminds us, the relevant lesson of such a review and reappraisal is not that the sentencing reformer should first attempt to resolve any abstract philosophical debates about the relative priority of these principles. No sentencing reformer can or should revisit the implicit choices inherent in the modern American criminal justice system to blend, compromise, and finesse the conflicts among these purposes. Indeed, the sentencing reformer should not even think too abstractly about the proper synthesis of these purposes because that is the task of criminal codemakers. (11)

      Rather, the lesson is that the sentencing reformer should be admonished to acknowledge, as Professor Frase shows, that our criminal justice system acts on a consensus principle of "limiting retributivism."...