Commentary

Let Judges Use Judgment

This article originally appeared in the Washington Times on January 23, 2005.
In the long-awaited Booker decision, the Supreme Court ruled federal judges no longer have to follow the rigid sentencing “guidelines” first adopted in 1987.

The court’s bold decision was promptly derided by those inclined to equate justice with unbridled prosecutorial power and endless prison sentences.

A Wall Street Journal editorial, “Sentenced to confusion,” imagined “the guidelines deserve at least part of the credit for the lower crime rate the country is currently enjoying.” Accompanying charts purported to relate the nation’s rising prison population with the decline in violent crime.

The trouble with trying to link sentencing guidelines to the total prison population, however, is that federal guidelines only apply to federal sentences. Of the 2.2 million Americans in prison or jail at the end of 2003, only 7.8 percent were in federal prisons.

The trouble with trying to relate federal guidelines to violent crime is that the federal government rarely has jurisdiction over such crimes. Former federal prosecutor Bruce Fein has written that “countless murders have been avoided, endless rapes prevented [and] innumerable robberies thwarted” due to federal sentencing rules. But it is local cops, not federal agents, who police our streets and arrest those guilty of violent crimes. The feds are rarely involved except when national banks are robbed or the crimes occurred on federal property or crossed state lines.

Homicide, aggravated assault and kidnapping accounted for only 3.3 percent of the 180,318 in federal prisons at last count. Robbery (of banks) accounted for only 2.6 percent of federal cases sentenced in 2002. The fact so few federal prisoners were involved in violent crimes explains why 58 percent of federal offenders can be safely kept in minimum-security or low-security facilities. About a fifth of federal sentencing involves immigration violations, and another fifth is white-collar crime, but federal sentencing is overwhelmingly about illicit drugs.

The percentage of federal prisoners incarcerated for drug offenses jumped from 27.6 percent in 1984 to 60.7 percent by 1995, partly because the guidelines mandated long prison sentences. In a recent marijuana case in Utah, a first-time offender trapped in a federal sting was sentenced to a mandatory 55 years because he refused a plea bargain and was therefore hit with 20 counts. The guidelines pretend a gram of heroin is equivalent to a kilo of marijuana, so heroin (which is easier to flush) accounted for only 7.1 percent of federal drug busts in 2002, compared with 28.9 percent for marijuana.

Gene Healy’s new book, Go Directly to Jail: The Criminalization of Almost Everything, notes there are now more than 4,000 federal offenses on the statute books, up from 3,000 a decade ago, and “thousands more buried in the Code of Federal Regulations.” Despite this rush to federalize state crimes, and to criminalize torts and regulatory infractions, drug offenders nonetheless still account for more than 54 percent of federal prisoners.

The 1,823-page Federal Sentencing Guidelines Manual sets “base offense levels,” for everything from tax evasion to possessing an eavesdropping device. The higher the number, the more time in prison. Rolling back the mileage on a car’s odometer is only a Level 6 offense (no more than 18 months). Mishandling pesticides is Level 8 but jumps to Level 24 if “knowing endangerment” was involved. “Engaging in a gambling business” is a Level 12 offense, unless done by a state government or Indian tribe. “Making an obscene phone for commercial purposes” (phone sex) is a Level 12 offense but Level 16 (up to 57 months) if the call was between 6 a.m. and 11 p.m. Drug charges can reach Level 38 — 20 years to life.

Before these supposedly brilliant guidelines existed, the Wall Street Journal complains, there were “disparities” in sentences. But offenses and offenders are never exactly the same, which is why we should let judges be judges. If we just wanted to eliminate disparities, everyone found guilty of any victimless nonviolent crime could simply be sentenced to 55 years.

The Journal thinks Congress may see the Supreme Court ruling as “a power grab by the judiciary.” Most federal judges saw sentencing guidelines as a power grab by the legislative branch. As former Attorney General Ed Meese explained, “A major cause of the federalization of criminal law is the desire of some members of Congress to appear tough on crime, though they know well that crime is fought most effectively at the local level.”

Delegating formidable authority to a new Sentencing Commission allowed federal politicians to politicize the sentencing process by calling on the commission, through legislation or jawboning, to impose longer and longer sentences for more and more federal offenses. Conservative members of Congress could more easily attract publicity and votes by demanding longer sentences for obscenity or drugs. Liberals could demand longer sentences for antitrust violations or despoiling the environment.

In the process, any right to a trial where defendants may confront accusers and must be proven guilty beyond reasonable doubt has almost vanished at the federal level.

The percentage of federal cases going to trial fell from 14.6 percent in 1991 to 2.9 percent in 2002. All but a handful of federal cases are now settled with a plea bargain and sentenced on the basis of a probation officer’s report.

Strict bureaucratic sentencing rules, combined with vague federal laws and regulations, are a key reason federal prosecutors no longer have to bother proving their cases to a jury. Federal prosecutors have been able to coerce pleas by threatening that if the case goes to trial they will charge numerous vaguely defined offenses and, in many cases, “forfeit” the accused person’s house, car and bank account while waiting for a trial. With the risk of facing multiple counts adding up to decades of mandatory prison time, defendants with any sense of the way this game is played have no practical choice but to plead guilty to a greatly reduced charge with a reduced sentence for “cooperation.”

If a misleading letter went through the mail, for example, that could mean 30 years for “mail fraud.” If hearsay evidence showed two people were involved in something (which need not be a crime), such a “conspiracy” could add five more years. Accusations of being a “racketeering influenced corrupt organization” (RICO) have been applied to everything from anti-abortion groups to a chicken company.

“Obstruction of justice” is a favorite catch-all, since any remarks short of a full confession might qualify. Section 1001 of the U.S. Code says any person otherwise innocent of any crime can be sent to federal prison for up to five years for concealing a “material fact” or making a “fraudulent” statement in a conversation with any federal official or congressional staffer investigating anything, even though the accused was not under oath and not read his or her rights. Section 1001 is one of dozens of accusations that can trigger asset forfeiture (homelessness and poverty) without trial or admission of guilt.

As Heritage fellow Paul Rosenzweig explained, “Broad and overlapping statutes with minimum obstacles to criminalization and harsh penalties… induce guilty pleas and produce high conviction rates, minimizing the costs of the cumbersome jury system…. And in the absence of any judicial check on this legislative trend, the result is a wholesale transfer of power from elected legislative officials to prosecutors who, in many instances, are unelected and not responsible to the public.”

The righteous Supreme Court decision to curb the politicization of federal sentencing, moderate prosecutorial immoderation and restore judicial wisdom to the federal bench was recently described by the Boston Globe as “a defeat for the U.S. Justice Department.” But it was a magnificent victory for justice.

Alan Reynolds is a senior fellow with the Cato Institute and is a nationally syndicated columnist.