Driven by concerns of disparate treatment and undue leniency in punishment, Congress created an independent agency to formulate a new regime that would limit the discretion of federal judges. In producing detailed rules that act as federal law, however, the U.S. Sentencing Commission has become, in Justice Antonin Scalia’s words, a “junior varsity Congress.” This new regime not only disregards basic constitutional principles but also severs the typical lines of political accountability in American government.
With the Commission and its Guidelines, no democratically responsible body can be held to answer for the many failures in federal sentencing. This is compounded by the political character of the Commission, composed of party adherents and aspirants to higher office.
The Guidelines also undermine any number of individual rights. For instance, their provisions often require federal courts to impose punishment not just for the specific criminal conviction but also for alleged facts that played no part in the underlying prosecution. This so‐called “relevant conduct” need not be proven beyond a reasonable doubt as required by the Constitution. It can, in fact, be substantiated by evidence that is usually inadmissible in court, and can even be based on charges for which the defendant was acquitted at trial.
Beyond constitutional problems, the Guidelines have proven to be unfair and unworkable in practice. Justice in sentencing requires an individualized assessment of the offender and the offense, leading to a moral judgment imposed by judges with skill, experience and wisdom. Those decisions cannot be made by a distant bureaucracy that produces abstract laws which ignore important context. But that is what occurs in today’s federal courts: Individuals are sentenced under the Commission’s micro‐managed rules, which substantially limit the potential sentencing range and expressly forbid judges from considering personal characteristics like the defendant’s age, mental condition, family responsibilities and employment history. Frankly, it’s Orwellian “doublespeak” to call the present rules “guidelines,” as trial judges must follow these sentencing commandments or face reversal by appellate courts.
In turn, sentencing rigidity and the lack of judicial discretion have produced a type of systematic deception to avoid otherwise preordained sentences. Federal prosecutors and defense counsel often evade the Guidelines through the use of secret agreements on the facts to be presented in open court. This process of “fact bargaining” results in attorneys lying to the judge about the amount of drugs or monetary loss, the dates of crime, the existence of a firearm, and so on — all with the goal of skirting the federal rules. Likewise, some trial judges simply manipulate the actual facts of a case to reduce punishment calculations or instruct probation officers to modify their sentencing reports to be consistent with a predetermined outcome. The great irony is that the Commission was supposed to bring about “truth in sentencing.”
Admittedly, many will find it hard to sympathize with individuals sentenced under the Guidelines. The federal system tends to invoke images of convicted mobsters, drug kingpins, white‐collar scoundrels, and, most recently, anti‐American terrorists. But, in reality, federal penitentiaries are filled with low‐level offenders, most involved in drug crime, whose biggest mistake (other than committing the offense) was refusing to play ball with the prosecutors. They sit in prison not because their punishment is morally deserved or achieves some social goal like crime deterrence, but because the Guidelines have converted federal trial judges into rubber‐stamp bureaucrats rather than moral decision‐makers.
If the last 15 years have proven anything, it is that justice in sentencing cannot be served by the mechanical rules of a distant bureaucracy. Only judges can mete out punishment that fits both the offense and the offender, mindful of the deeply held notion that government must treat each individual as unique rather than just another object on the conveyor belt of sentencing.
Ultimately, the American people and their elected representatives in Congress must end the Guidelines era and begin anew, guaranteeing that the next decade and a half will not be like the last. It is time to scrap the Commission and its Guidelines, and to embark on a new age of federal sentencing.