Douglas Berman at the Sentencing Law and Policy blog has some excellent commentary and links on the Supreme Court’s decision in Booker, which struck down the mandatory use of the federal sentencing guidelines. Berman’s work provides another example of the blogosphere’s ability to provide top-quality analysis on specialized issues in a way the MSM can’t match.
I haven’t had the opportunity to analyze Booker in depth, nor am I a criminal lawyer. The decision strikes me, though, as a bit of a travesty. As I understand them, the federal sentencing guidelines are designed to make sure that there are no large differences in the sentences of federal offenders who commit the same crime and are similarly situated. I don’t think that leaving the guidelines in place and applying them as they are applied today (through findings by judges) would have been a bad outcome. Alternatively, the approach that Justices Scalia and Stevens called for — continuing with binding guidelines but having juries find the facts necessary to apply them — would have been a good result.
Instead, thanks to Justice Ginsburg, the guidelines are no longer binding, but judges can choose to apply them the way they do now (i.e. without jury involvement in the relevant fact-finding). This means, I think, that many liberal judges will ignore the guidelines and sentence leniently, while some conservative justices will apply the guidelines and sentence harshly. Thus, criminal sentencing will join the growing list of legal issues in which luck of the judicial draw, from a political standpoint, will determine the outcome. Maybe Justice Ginsburg thought this is how it’s done in Europe.
A good sign that the Court has fouled the thing up appeared in the Boston Globe (print edition) headline, “Boston judges praise ruling.” According to the Globe, one Boston judge singing the praises is Nancy Gertner, a former plaintiffs’ lawyer and liberal activist. Judge Gertner, on behalf of federal judges everywhere, assures us that “we will be reasonable,” adding that this, after all, “is what they put us on the bench for.”
To me, Gertner’s statement sounds more like what psychologists call projection than a description of why judges actually are put on the bench. Many people strive to become judges so they can exercise pure reason in Solomonic fashion to serve humanity. Unfortunately, my experience in federal court is that, while most judges are quite able, there are no Solomons among them, and (as in all walks of life) few who are nearly as wise as they think they are.
Nowadays, moreover, the tendency is to put judges on the bench at least in part to judge conservatively or liberally. As discussed above, threin lies much of Booker’s mischief. But even in a less politicized context it would be wrong to think of judges as selected “to be reasonable.” Judges should exercise reason, of course, but within the constraints of rules designed to make sure, so far as possible, that people in like circumstances are treated alike. The Booker decision ensures that, absent Congressional intervention, such fair treatment will not be the rule in federal criminal sentencing.
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