Federal sentencing guidelines were set in the 1980s, recalls the Baltimores Sun, when analysts found that in one courtroom, a judge handed out a sentence of 10 years and in another, someone charged with the same crime got two years. “The feeling was judges simply had too much discretion,” says Erik Luna of the University of Utah College of Law. “You had ‘Hang ’em High Harry’ and “Set ’em Loose Bruce.'”
Two decades later, many think the guidelines are not working. In a minirevolt against the guidelines in New York, one judge cited them as a reason for his early retirement, another was removed from a drug case because of his criticism of the guidelines, and another sought to block a law that gives Congress access to certain court records. Says Frederic N. Smalkin, a semiretired judge in the U.S. District Court in Baltimore:
“One law Congress can’t change is the law of unintended consequences.”
Critics say that in trying to make the punishment fit the crime, guidelines do not make it fit the criminal; the rules jam federal prisons with people who shouldn’t be there; and that they rob judges of the ability to exercise discretion.
Political support for the guidelines seems to get stronger. Last year, Congress put an amendment on the popular Amber Alert law aimed at tracking down kidnapped children that requires the Justice Department to keep a list of judges who squeeze through one of the guidelines’ small loopholes and give out sentences that are below those mandated.
James Whitman, a professor at Yale Law School, expects such criticism to fall on deaf ears. “It is very easy to run on a tough-on-crime platform. Those platforms always take as their target the criminal defendant in the abstract,” says Whitman, author of Harsh Justice: Criminal Punishment and the Widening Gap between America and Europe. “That’s how you stir up voters. It is very hard to feel sympathy for the criminal in the abstract, but when you actually see the individual offender before your eyes, as judges do, you often have a very different reaction.”
“What is fundamentally horrible about the guidelines is that we appoint these highly educated judges, give them a lifetime appointment so they can be insulated from the political process and make the right decisions, and then we handcuff them and keep them from doing that,” says Justin Brooks of the Institute for Criminal Defense Advocacy at the California Western School of Law in San Diego.