Bill Otis, a former AUSA and now an adjunct at Georgetown Law, had a piece earlier this month in the Federalist Society’s magazine Engage titled “The Slow, Sad Swoon of the Sentencing Suggestions.” His article opens with the sentence “The Guidelines are a lost cause.” We were in total agreement so far. But by the next sentence, he’d lost us.
It’s a good article, don’t get us wrong, and well worth reading. But Prof. Otis’ main point is that the Guidelines stopped being useful after Booker made them optional. He’d prefer to completely do away with them, but only to replace them with more stringent rules that remove most of the discretion judges now have in sentencing. We cannot agree.
The Guidelines were enacted back in 1987 largely in response to a perception that sentencing was too unpredictable. For any given crime, Judge A might give three years in prison while Judge B might give only one. Or Defendant X might get prison while Defendant Y only got probation. The Guidelines corrected that by removing much of the discretion judges had. For a given offense, and a given criminal history, there was a range of permissible definite sentences that could be imposed. Some discretion was allowed for slight downward or upward departures to different ranges. Less discretion was allowed for variances, sentences that rejected the Guidelines as inappropriate. Needless to say, judges hated this loss of discretion from day one. The Guidelines were not mere guidelines, but strict rules. It stayed that way until the 2005 Booker decision restored them to the general rule-of-thumb they were meant to be.
Now, the Guidelines are still important at sentencing. Everyone uses them, everyone applies them. Now, however, once the appropriate Guideline range has been calculated, there is more room for advocacy to seek a different sentence, and judges are able to consider different sentences on a case-by-case basis.
Some, like Otis, decry this as a return to the unpredictable bad old days, where one’s sentence varied based on the “luck of the draw” of which judge one happened to have. Others praise it as a movement towards greater individual justice.
The division here is deep, a seemingly irreconcilable difference of core principles of what criminal justice is supposed to do.
On the one hand, you have those who want predictability, uniformity and consistency. If stealing $50,000 is worth five years (or whatever), then it’s worth five years. What’s important is the crime, not the criminal. If society knows that a given crime gets you a given sentence, then the law has a more deterrent effect. The penalty works to prevent more of the same crime, and society benefits. Taking into account such variables as the thief’s personal circumstances or the judge’s gut feeling that this wasn’t such a big deal — or conversely variables such as the relative harm suffered by the particular victim or the judge’s gut feeling that this was worse than usual — makes for an unpredictable world where nobody knows what a given crime is worth. Without predictability, the law loses its deterrent effect. Society suffers. The purposes of punishment that are most important to this group are retribution — a given crime is worth a given penalty — and general deterrence.
On the other hand, you have those who want individualized sentencing. Make the punishment fit the criminal, not the crime. Justice is not what happens on average, it is what happens to this individual standing right here right now. And even general deterrence is achieved not by specific sentences, but by the general awareness that some punishment is going to happen. The uncertainty of what that penalty might be doesn’t lessen the deterrent effect of this awareness. And the retributive aspect of punishment must be proportional to be just. A one-year sentence might be devastating to the life of a middle-class college grad whose career will be ended, whose reputation in his relevant community will be destroyed, and who will suffer the consequences deeply for the rest of his life. That same one-year sentence might be a walk in the park (or as one of our clients once put it, “a nice vacation”) with little or none of the devastation suffered by the other. Justice demands that individual differences be taken into account. And that demands that judges be given the discretion to do so.
These two positions — general justice vs. individual justice — are usually irreconcilable because they use the same words to mean different things. They can’t even begin a discussion because they’re arguing from core principles that don’t correspond.
But beyond that, those who value general consistency over individual appropriateness miss the entire point of our criminal justice system. The whole point is to ensure (more…)