Laser Beam or Blunderbuss? Evaluating the Usefulness of Determinate Sentencing for Military Commissions and International Criminal Law

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Over the last thirty years, federal sentencing reform has meant one thing: more determinate sentencing. The federal government has steadily moved away from a scheme in which judges choose sentences case by case and toward one more tightly controlled by Congress and the President. Although recent Supreme Court decisions, along with many observers' growing dismay at the results of these reforms, have dampened this trend, sentencing guidelines and mandatory minimum sentences continue to play primary roles in determining who goes to prison and for how long. Yet two new criminal tribunals--one international and one within the U.S. military--depart sharply from the determinate sentencing model prevalent in U.S. federal courts. At first glance, these tribunals appear susceptible to the same critiques applied years ago to the federal system: that without guidelines, punishment will end up too arbitrary or too lenient. However, when the goals of the new tribunals are examined, strictly determinate sentencing appears inappropriate. A better solution is "bounded discretion"--a middle ground between determinate and indeterminate sentencing.

Both tribunals examined in this Note are essentially experimental: The International Criminal Court (ICC) was created by a multilateral treaty, the Rome Statute, (1) in July 2002 and only recently confirmed charges against its first defendant. (2) The U.S. military commissions, established last autumn by the Military Commissions Act of 2006 (3) (MCA), have so far reached a disposition in only one case. (4) Both tribunals face major hurdles in achieving long-term success. The legitimacy of the ICC has been weakened by the noninvolvement of the United States (5) as well as by inherent limits on its power as a nonsovereign, international body. (6) The MCA, meanwhile, may ultimately fail under constitutional scrutiny, given the abbreviated due process and denial of habeas corpus it imposes on defendants. Moreover, Congress may yet overhaul the MCA. (7) But this Note looks beyond these important, ideologically charged battles to the questions of punishment and, more specifically, the questions of how and by whom individual sentences should be determined.

In contrast to U.S. domestic sentencing policy, both the ICC and the military commissions provide for primarily court-determined sentences, with only minimal guidance offered by statutes or court rules. Importing determinate sentencing might improve the legitimacy of both tribunals by making their punishments appear more consistent and appropriately severe. But detailed guidelines would also impose serious costs. At the ICC, the institutional barriers to formulating such guidelines would be high, and the loss of flexibility in sentencing could hamper the court's efforts to promote social healing and national reconciliation in delicate political circumstances. Although creating guidelines for U.S. military commissions would involve fewer institutional hurdles, political involvement in sentencing would likely produce more harshness than justice, ultimately undermining the credibility of the tribunal. In both cases, the failure of the Federal Sentencing Guidelines to create an equitable and humane sentencing regime should caution against any model that is too closely managed by political actors.

This Note proceeds in several parts. Part II explores the Federal Sentencing Guidelines and the existing sentencing rules governing the ICC and U.S. military commissions. Part III examines the goals of determinate sentencing and compares them to the goals of the ICC and the military commissions. Part IV looks at the challenges that each institution would face in implementing guidelines and concludes that the balance already struck by the U.S. military commissions--"bounded discretion"--is preferable for both courts. Under this framework, sentencing is largely discretionary within broad codified boundaries. These boundaries can both prevent outlier sentences and serve as expressions of certain values held by the court. …


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