Reprieve on Sentencing Guidelines?

Article excerpt


Last Monday, the Supreme Court agreed to hear two cases that may well decide the future of the U.S. government's punishment scheme, a.k.a. the federal sentencing guidelines.

The justices' grant of review was all but guaranteed by another sentencing case decided by the Supreme Court in June. That opinion's aftermath provoked members of Congress and commentators alike to describe the state of federal sentencing in apocalyptic terms - "chaos," "crisis," "siege," and so on.

Even Justice Sandra Day O'Connor chimed in recently. She characterized the decision as "a No. 10 earthquake" and said she was "disgusted in how we dealt with it."

In fact, my home state is an epicenter for handwringers, as four different federal trial judges in Utah have produced four different approaches to sentencing in less than a month.

But with these dire predictions about an impending collapse of the sentencing guidelines scheme, I can't help but hum the refrain from R.E.M.'s 1987 rock ditty: "It's the end of the world as we know it, and I feel fine." Punishment in U.S. courts has run amok since federal lawmakers launched the current system in the 1980s, and the Supreme Court's ruling could provide the impetus to raze this regime - and not a minute too soon.

The case that incited legal and political uproar and motivated the court's action last week, Blakely vs. Washington, would seem to affect only one aspect of federal sentencing. In Blakely, the Supreme Court invalidated a state scheme that permitted increased punishment based on factors neither admitted by the defendant nor proven to a jury.

Although the opinion refused to address the federal sentencing guidelines, the inevitable consequences appear obvious given that the invalidated state approach and that of the federal regime are virtually identical.

The court's holding also undermines some of its most constitutionally obnoxious rulings in the recent past, including cases that approved drastically increased punishment based on conduct that was never charged or, even worse, alleged crimes for which the defendant was actually acquitted at trial. Hopefully, federal prosecutors will now be bound to some semblance of truth-in-charging, and once again a "not guilty" verdict will mean what it says.

But the decision does not touch any number of perversions and injustices under the sentencing guidelines. Unknown to most Americans, punishment in federal courts is set not by elected lawmakers but by an administrative agency, the U.S. Sentencing Commission, fittingly described by Justice Antonin Scalia in 1989 as "a sort of junior-varsity Congress" in contravention of the constitutional design.

The commission is largely free of the typical limitations of other administrative bodies, such as detailed explanations for its rulings and court review for arbitrary and capricious action. It should come as no surprise, then, that the agency's work-product - a 1,500-page tome that makes the federal tax code look like Reader's Digest - exemplifies the mischief of politically unaccountable authority lacking the constraints of outside input and detached evaluation. …