FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS by Kate Stith and Jose A. Cabranes. The University of Chicago Press, 1998. 265 pages. Paper $17.00. ISBN 0-226-77486-4.

Reviewed by Don Crowley, Department of Political Science, The University of Idaho. Email: crowley@uidaho.edu.

In 1984 Congress overwhelmingly passed the Sentencing Reform Act as part of a more comprehensive crime control bill. The Act successfully blended liberal concerns with excessive discretion exercised by federal judges with the desire of conservatives to get tough on crime. Strongly endorsed by the Reagan Administration, the Act promised a new era for sentencing in federal courts. Essentially, the Sentencing Reform Act delegated to a newly created U.S. Sentencing Commission the power to establish sentencing guidelines for all federal crimes. The Sentencing Commission would consist of seven members, including three sitting federal judges, appointed by the President and confirmed by the Senate.

In 1987 the Commission completed its initial task by promulgating a comprehensive and complex set of Guidelines. The Guidelines sought to constrain the discretion of federal judges by requiring them to impose sentences within the narrow ranges established by the Commission. As soon as the Guidelines went into effect their constitutionality was immediately challenged as a violation of separation of powers as well as constituting an excessive delegation of congressional power. In Mistretta v United States (1989) eight Supreme Court Justices upheld the Act stating that it violated neither of these principles. Justice Scalia filed the lone dissent noting that the Commission was granted the power to make law and was in essence "a sort of junior-varsity Congress."

This brief overview, I admit, is about as far as I usually get in discussing this important piece of legislation in any of my courses. Anyone wishing to go farther would be well advised to read Stith and Cabranes’ provocative challenge to the new sentencing regime brought about by the Sentencing Reform Act. Written by a law professor who was a federal prosecutor (Stith), and a current federal appeals court judge (Cabranes), the book is an insightful analysis of the changes brought about by the Sentencing Commission. Their argument is not constitutionally based, since their analysis is not directed at questions of delegation of power or separation of powers. Rather their concerns are addressed at what the Sentencing Commission sought to do, and what, in fact, they have accomplished.

Stith and Cabranes argue that the Sentencing Reform Act was based in large part on mistaken premises. Not only did the original Commissioners lack experience with criminal sentencing but they proceeded from the assumption, apparently shared by Congress, that excessive judicial discretion led to unwarranted disparity in sentencing. From this assumption the Commission proceeded to develop a highly complex 6 X 43 matrix within which a sentencing judge is supposed to locate the allowable range of the sentence. The top end of each sentence never exceeds the minimum by more than 25%. By locking judges into a rigid structure the Commission sought to curtail judicial discretion and sentencing disparity.

To the authors, the Commission’s work has been dramatically flawed. They argue that the Guidelines articulate no coherent sentencing philosophy and the Commission never sought to specify a rationale for the system ultimately adopted. Thus, "the Commission was left without a basis for deciding what sentences would be most appropriate for particular crimes. It should therefore come as no surprise that the Commission has never presented empirical evidence or substantial argument to support the proposition that its rules achieve, even imperfectly, any of the four well-established possible objectives of criminal sentencing: retribution, deterrence, incapacitation, or rehabilitation." (53).

Beyond the lack of coherent principles, the authors assert that the Commission, driven by the punitive forces of crime control, would inevitable increase the severity of the sentencing structure. Despite the fact that the Commission claimed to base its approach on a review of past sentencing practices, the authors provide convincing evidence demonstrating that the Guidelines have drastically increased the actual time served across the entire range of federal crimes. This resulted partly from abolishing parole and partly from dramatically reducing the number of people who receive probation. Of course the argument could be made that this is precisely what at least conservative members of Congress hoped to accomplish with this reform law. Still, the authors share the complaint of one of the original Commissioners who noted that the new world of higher sentences was being driven by something other than a coherent philosophy relating to punishment and had failed to provide empirical data to support the sentence structure they adopted.

While clearly concerned about such effects, the core of Stith and Cabranes’ criticism relates to what the Guidelines have done to the nature of judging. The Guidelines tried to replace "the traditional judicial role of deliberation and moral judgment (inherently imperfect) with complex quantitative calculations that convey the impression of scientific precision and objectivity."(82). By replacing "human judgment with a mechanical calculus, we do not judge better or more objectively, nor do we judge worse. Instead we cease to judge at all." (82) To the authors the new sentencing Guidelines changed the role of the Judge from someone who considers the circumstances of the crime and the characteristics of the defendant to largely an administrative function where formal findings of fact are translated into the abstract categories found in the sentencing matrix. As Stith and Cabranes see it, the most important role that judges played in criminal sentencing was the "ability to pronounce moral judgment that takes into account all aspects of the crime and the offender." (147). Instead the Guidelines turn them into accountants.

In theory the judge might depart from the Guidelines but even this step turns out to be problematic. A judge may only depart from the Guidelines in ways authorized by the Guidelines themselves. To do otherwise invites being overturned on appeal. Thus judges are likely to depart from the Guidelines only in those cases where the parties to the case have jointly agreed on a sentencing range. This at least insulates the judge from being reversed on appeal. As social scientists have often noted with other attempts at mandatory sentences, removing discretion from the judge doesn’t get rid of all discretion. While the Guidelines constrain the judge’s ability to adjust sentencing to fit their view of the crime, prosecutors certainly retain the ability to affect sentencing. Prosecutors can affect the sentence not only through the charges filed and the use of plea-bargaining, but also through motions to depart from the Guidelines in return for "substantial assistance." The latter seems to be the only important mechanism for reducing a sentence recognized by the Sentencing Commission.

Stith and Cabranes argue that the Guidelines do a much better job of constraining the discretion of judges than they do in constraining prosecutors. This is, at least in part, because the legislation and the Commission start from the premise that judicial discretion was the problem. While making a convincing case against these developments, the authors are not sanguine about the likelihood of reversing this trend in the near future. They would like to see the Guidelines amended to give judges fewer mandates and more choices. Indeed, restoring the notion of judgment to the judge is their central theme. The Guidelines violate this goal by mandating what weight can be given to most factors and excluding judges from even considering other factors.

Fear of Judging provides a wealth of insights into the dangers of trying to contain discretion by creating rigid rules. The book is fairly short (177 pages of text) and reasonably accessible to students with at least some knowledge of the judicial system. For my taste the book might have concentrated more on examining how the Guidelines have altered the interactions between key actors in the system, but this seems like a minor quibble. While a relaxation of the drive towards mandatory sentencing would seem to be in order, the reaction leading to the use of such mechanisms will appear anytime the public and politicians become convinced that discretion equals leniency. Until this equation is altered the argument made in Fear of Judging is likely to go unnoticed.

MISTRETTA V. UNITED STATES, 488 U.S. 361 (1989)

Copyright 1995