Too severe?: a defense of the federal sentencing guidelines (and a critique of federal mandatory minimums).

• Author: Cassell, Paul G.

INTRODUCTION I. THE ATTACK ON THE GUIDELINES AS "TOO SEVERE" II. THE GUIDELINES HAVE NOT BEEN PROVEN TO BE TOO SEVERE A. Just Deserts 1. Social norms as a measure of just deserts 2. Foreign sentencing practices as a measure of just deserts B. Crime Control 1. The costs of crime 2. Preventing crime through criminal punishment 3. The experience in other countries 4. Benefit-cost analysis of prison sentences 5. Benefit-cost analysis of federal sentences 6. The special problem of drug trafficking crimes III. TOUGH GUIDELINES MAKE MANDATORY MINIMUM SENTENCES SUPERFLUOUS CONCLUSION INTRODUCTION

Are the federal sentencing practices too tough? This Article reviews the severity of the federal sentencing guidelines and related mandatory minimum sentences. In brief, I do not believe that a case has been made that the Guidelines are too severe. The statutes establishing mandatory minimum sentences, however, are redundant to the Guidelines and their usefulness should be reconsidered.

With respect to the severity of the Guidelines, we need to consider the purposes of criminal sentencing. Federal sentencing has two primary aims: just punishment and crime control. The Guidelines appear to satisfy both of these goals. On the dimension of just punishment, the Guidelines generally track social norms (for example, public opinion) by providing prison sentences that are consistent with the public's view of appropriate punishment. On the dimension of crime control, the Guidelines create significant incapacitative and deterrence benefits by prescribing substantial penalties for serious federal crimes with high costs to victims. The Guidelines thus have strong potential for being cost-effective crime control measures. Accordingly, assessed against either purpose of criminal sentencing, it is hard to understand how the Guidelines can be deemed too severe.

The situation is somewhat more complex with respect to the federal statutes prescribing mandatory minimum sentences. In light of the Guidelines, the mandatory minimum sentences are largely redundant. Their only effect is to prevent downward departures from the Guidelines in unusual cases. This "no escape" feature of the mandatory minimums can lead to possible injustices in particular cases. These apparent injustices may undercut support for the entire federal guidelines structure. The mandatory minimums should be reconsidered.

1. THE ATTACK ON THE GUIDELINES AS "TOO SEVERE"

   On August 9, 2003, Justice Anthony Kennedy spoke at the American Bar Association's annual meeting. In his widely-noted address, Justice Kennedy called for a general, across-the-board reduction in the sentences dictated by federal sentencing guidelines, arguing:

   It requires one with more expertise in the area than I possess to offer a complete analysis, but it does seem justified to say this: Our resources are misspent, our punishments too severe, our sentences too long. In the federal system the sentencing guidelines are responsible in part for the increase in prison terms. In my view the guidelines were, and are, necessary. Before they were in place, a wide disparity existed among the sentences given by different judges, and even among sentences given by a single judge.... [H]owever, the compromise that led to the guidelines led also to an increase in the length of prison terms. We should revisit this compromise. The Federal Sentencing Guidelines should be revised downward. (1) Justice Kennedy's thoughtful remarks have prompted a nationwide discussion on the severity of the federal sentencing guidelines. Such a review is appropriate. The imposition of criminal sentences must never be taken lightly. Prison sentences remove an offender from society. They deprive the prisoner of freedom to pursue his (2) livelihood and to interact with his family and friends. The conditions in prison can be harsh. For all these reasons, the men and women who serve on the federal bench imprison offenders with no sense of joy.

   In federal courts today, the Guidelines prescribe with some precision the sentences for most criminal cases. The aim of this Article is to assess the global question of whether the Guidelines generally impose sentences that are too harsh. This is a broad-gauge review that will not inquire into specific guidelines. This disclaimer is important because particular sentencing ranges are, no doubt, out of kilter. For example, my own view is that the guidelines for immigration offenses are quite often too high. No doubt, too, there are various cases in which the Guideline sentence turns out to be inappropriate. Of course, the Guidelines may permit departures for such unusual situations. (3) But the focus here is the forest, not the trees. In my view, the sweeping claim that the Guidelines need an across-the-board reduction remains to be proven.

   One clarification may be helpful at the outset. Because the focus of this Article is average guidelines sentences, it does not fully analyze the separate issue of sentencing discretion. It may be the case that judges need more discretion at sentencing, as some thoughtful commentators have argued. (4) This Article takes no position on such issues (other than to suggest that the mandatory minimums conflict with the Guidelines). But it does seem fair to say that some calls for more "discretion" are, in truth, calls for lower sentences. Whether such arguments are sound is the larger issue that this Article considers. (5)

2. THE GUIDELINES HAVE NOT BEEN PROVEN TO BE TOO SEVERE

   To conclude that the Guidelines are too harsh requires some metric for assessment. The severity of sentences should be considered in relation to the goals criminal sentences are to achieve. In the Guidelines themselves, the Sentencing Commission articulates two primary purposes oSf sentencing: (1) "just deserts," in other words, scaling punishment according to the offender's culpability and resulting harms, and (2) "crime control," in other words, preventing future crime, either by incapacitating the defendant or deterring others. (6) In considering these purposes, the Sentencing Commission concluded that it was unnecessary to determine which of these two purposes should have primacy "because in most sentencing decisions, the application of either philosophy will produce the same or similar results." (7) The failure of the Commission to pick between deserts and crime control has been critiqued by judges (8) and commentators. (9) But, at the risk of some over-simplification, (10) it is enough to note for present purposes that these two sentencing goals appear to cover the relevant universe of standards by which to assess the Guidelines. The one other possible candidate--rehabilitation of offenders--is surely an additional aim of criminal sentencing. But the determinate sentencing structure of the federal system implicitly rejects the idea that rehabilitation should determine the length of sentences. In view of this fact, rehabilitation need not be extensively considered here.

   Before turning to the specifics of the argument, a brief overview of my conclusions may be helpful. First, assessed against the standard of just deserts, the Guidelines have not been proven to be too harsh. The most straightforward way to determine the just deserts for a particular crime is to determine the public views about the subject. A comprehensive comparison of the Guidelines to such social norms found little variance. While the Guidelines may be tough, they merely impose the kind of punishment that society expects for serious federal offenses.

   Second, assessed against the standard of crime control, the Guidelines have not been proven to be inappropriate. Federal criminal sentences appear to have significant deterrent and incapacitative effects. While federal prison space is expensive, the costs of crime are high as well. So far as can be determined from the available literature on the subject, the Guidelines seem to generate positive benefit-to-cost ratios. In short, the Guidelines "pay" by creating the significant social benefit of reducing dangerous crimes.

   1. Just Deserts

      Just deserts is the first purpose of punishment that should be considered. Sometimes labeled "retribution" (or, less charitably, "revenge"), this theory of punishment contends that criminal sentences are imposed to give an offender his just deserts. In short, "[t]he offender may justly be subjected to certain deprivations because he deserves it; and he deserves it because he has engaged in wrongful conduct--conduct that does or threatens injury and that is prohibited by law." (11) Just punishment is a justification that is anchored in the past. As articulated by two leading proponents, a just punishment "gives an offender what he or she deserves for a past crimes [as] a valuable end in itself and needs no further justification." (12) Congress has specifically articulated just punishment as a legitimate purpose of a federal criminal sentence. (13)

      Against the backdrop of a just punishment rationale, we can consider the claim that the Guideline sentences are too severe. In his speech to the ABA, Justice Kennedy provided one specific illustration of the way in which federal sentences were too harsh:

      Consider this case: A young man with no previous serious offense is stopped on the George Washington Memorial Parkway near Washington, D.C., by United States Park Police.... A search of the car follows and leads to the discovery of just over 5 grams of crack cocaine in the trunk. The young man is indicted in federal court. He faces a mandatory minimum sentence of five years. If he had taken an exit and left the federal road, his sentence likely would have been measured in terms of months, not years. (14) Let us set aside the fact that this illustration seems directed at federal mandatory minimum sentences, rather than the Guidelines themselves. (Mandatory minimum sentences are discussed at greater length below.) The example Justice Kennedy picked is...