Time to Lose the Guidelines?

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 individual justice, while protecting the individual from the overwhelming might of the government.  It’s inefficient as hell, but on purpose.  Efficiencies and averages and consistency are bright lines that do not, cannot, take into consideration the details of this particular case, this particular person.  Rules that work fine for most people will always have individuals here and there who suffer unfairly.  Those who say this is a necessary sacrifice to the greater good simply miss the whole point of what our system’s been trying to accomplish since the Middle Ages.


In a phone conference today, Prof. Otis made some more points in favor of abolishing the current federal sentencing system, and replacing it with mandatory, quasi-determinate sentencing.  There should be mandatory minimums for a given crime.  There should not be a mandatory maximum, however (what he refers to as “topless” sentencing).  He calls this a return to the Rule of Law, restoring the rule of law to sentencing.

He’s right to say that the whole point of the Rule of Law is to constrain the discretion of the mighty.  But how he says it shows that he misses the point entirely.  The point of the Rule of Law is to protect the individual by ensuring that those with power, including the government, are subject to the same law.  But Otis perverts this into an idea of protecting the government (or its stand-in “society”) from the whims of judges with the power to impose lighter sentences than those the government would prefer.  It sounds good when he says that the point of the Rule of Law is to constrain the discretion of the powerful, and replace their whims with written rules that even the powerful must follow.  But he’s not talking about protecting the individual from the might of the state.  He’s talking about protecting the state against judges who would otherwise protect individuals from the state.

It’s almost Orwellian.


In his remarks today, Prof. Otis decried the fact that judges like to depart downward from the Guidelines.  Before Booker, they were followed 80% of the time, but now they’re only followed 63% of the time, and at the present rate of decline the Guidelines will be disregarded in a majority of cases within three years.  “Sentencing,” he says, “is now the defendant’s playground.”  Downward departures outnumber upward departures by 20 to 1.  Individual judges are deciding that the Guideline ranges for certain cases (notably white-collar defendants and child porn possessors) are out of whack, and are imposing sentences they believe to be more fair.

He says this like it’s a bad thing.

Of course, what’s really going on here is judges are trying to do the right thing.  They’re trying to work out individual justice for the case in front of them, instead of trying to manage some technocratic generalized ideal.  Sentences for many cases are too high.  The Guidelines for many cases are unfair.  Judges get it.

The solution isn’t to do away with judges’ power to do the right thing on a case-by-case basis.  The solution is to make sure they can do the right thing.

The Guidelines are not the way to do it.  Even if they continue to be perceived as a mere rule-of-thumb that applies to most — but not all — cases, the Guidelines are still insane.  Even with the latest corrective measures, cocaine as used by inner-city black folks is penalized several times more harshly than no-less-harmful cocaine in the form as ingested by upper-class whites.  Possessing (admittedly awful) pornography is still penalized far worse than the actual molestation of an actual child.  And sentences for the crime-du-jour only ever ratchet upwards.  Sentences only get more and more disproportionate to the underlying harm, as time goes on.

The way to do it is to restore discretion to the judges, to put people away for the appropriate amount of time considering not only what they did but who they are.

Prof. Otis himself almost made this point today.  He mentioned that the ever-longer sentences imposed under the Guidelines share some of the responsibility for the huge drop in crime since they were imposed, if for no other reason than they are keeping off the streets the very people who otherwise would have committed crimes had they gotten out sooner.

Exactly.  That’s a characteristic of the individual that is meaningful.  If someone is likely to be a threat, then it might make sense to keep him off the streets a bit.  But if someone is never going to be a threat again, maybe it makes just as much sense to not lock him up for quite so long — or even at all.  Prof. Otis is willing to consider the first option, but isn’t willing to let judges consider the second.

And that’s just not right.

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