Too Severe?: A Defense of the Federal Sentencing Guidelines (and a Critique of Federal Mandatory Minimums)

Article excerpt

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.

I. 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. …