Misguided Guidelines: A Critique of Federal Sentencing

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Fifteen years ago, the federal justice systemunderwent a revolutionary but massively flawedrevision of its approach to sentencing criminaldefendants. Driven by concerns of disparatetreatment and undue leniency in punishment,Congress created an independent agency, theU.S. Sentencing Commission, to formulate anew sentencing regime that would drasticallylimit the discretion of federal judges. The resultingbody of law, known as the SentencingGuidelines, has both perverted constitutionalprinciples and produced grave injustices.

In promulgating detailed sentencing rulesthat bind federal courts and individual parties,the commission is making law through anunconstitutional delegation of legislativeauthority. This practice not only violates theconstitutional principle of separation of powers,but also severs the typical lines of politicalaccountability in American democracy. Moreover,the Guidelines themselves violate a numberof constitutional rights by, among other things,punishing defendants for uncharged or acquittedconduct.

Beyond constitutional infirmities, theGuidelines have proven to be unfair and unworkablein practice. Justice in sentencing requires anindividualized assessment of the offender andthe offense, leading to a moral judgmentimposed by judges with skill, experience, and wisdom.Those judgments cannot be made by a distantbureaucracy pursuant to abstract rules thatdisregard important context. Yet that is preciselywhat occurs in today's federal courts: Individualsare sentenced under the commission's micromanagedrules, which expressly forbid judgesfrom considering personal characteristics likethe defendant's age and family responsibilities.That rigidity in sentencing has led to intentionaldeception among judges, prosecutors, anddefense attorneys attempting to avoid the prescribedconsequences of the Guidelines. Suchdishonesty is flatly inconsistent with the commission'sstated goal of "truth in sentencing."

Erik Luna

Erik Luna, formerly a state prosecutor and Fulbright scholar on sentencing alternatives, is associate professor of law at the University of Utah.