The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.
Unsurprisingly, defendants have been raising Judge Gleeson’s argument since for the proposition that courts should categorically reject the drug guidelines and depart downward. Vastly downward, as far as 18 U.S.C. §3553(a) will take them.
At the WaPo Conspiracy, former federal judge cum victim’s rights advocate, Paul Cassell, who lost little sleep imposing guidelines sentences upon individuals who failed to meet his personal definition of victimhood, notes a decision out of the District of New Mexico. In United States v. Reyes, a 73-page opinion, Judge James Browning goes mano a mano with Judge Gleeson.
The Court does not share Judge Gleeson’s policy disagreement with the drug trafficking Guideline ranges. Given the importance of this issue in the nation’s ongoing debate about drug policy and the importance of the issue to the defense bar generally, the Court will explain at some length why it does not share Judge Gleeson’s views. Most importantly for Reyes, because Court lacks a Kimbrough v. United States disagreement with the Commission’s Guideline ranges for drug trafficking offenses, although the Court varies, it does so for reasons tied to the § 3553(a) factors and not to a policy disagreement with the Guideline ranges.
The “why” is both easily stated and nearly impossible to decipher at the same time. At its core, Judge Browning’s view is reminiscent of Justice Robert Jackson’s quote from Brown v. Allen, “We are not final because we are infallible, but we are infallible only because we are final.”
The Court’s fundamental disagreement with Judge Gleeson is his repeated assertion that Congress “made a mistake.” In the first place, unless the mistake is of constitutional dimension, i.e., the statute is inconsistent with the Constitution, it is hard for a Court to say that Congress, the elected branch of our government, ever makes a “mistake.” Judges used to be more charitable to Congress and say that Congress acted such a way “in its infinite wisdom.” The Court does not presume to tell Congress that it made a “mistake”; on an issue of how long a sentence should be, it is hard for a judge to say that another judge’s sentence is a “mistake.” It seems particularly hard for a judge to say, with any sound footing, that Congress made a mistake.
If Congress said so, so it must be. It would reflect an inexplicably breathtaking view of deference toward Congress, but for the fact that he, like Cassell, doesn’t view the guidelines as “unduly harsh.” They are, apparently, just the right amount of harsh for Judge Browning.
Contrary to Judge Gleeson’s contention that the mandatory minimums, to which the guidelines sentences are tethered, were intended to apply to the “few” who met the rhetoric that was used to justify the lengthy sentences, Judge Browning argues that Congress intended to imprison as many people as possible for as long as possible.
First, the statute’s language neither expressly or otherwise says it should apply only to a “few,” which inquiry normally ends a federal court’s statutory construction. Second, the legislative history does not univocally suggest that Congress intended the mandatory minimums to apply only to a “few.” Third, there is the difficult problem of defining the “few.” Fourth, there are sound reasons not to restrict the mandatory minimum to a “few.” Fifth, the mandatory minimum is, in the real world, applied to only a very “few.”
Apparently, the New Mexico experience differs from experience elsewhere, or the phrase “very few” doesn’t mean what he thinks it means. Yet, Judge Browning finds the solution not in judicial rejection of legislative intrusion into the judicial function, but rather executive intrusion:
That difference does not, however, show that mandatory minimums are, themselves, the problem — the problem is overly aggressive charging decisions. The optimal solution to that problem may not be taking away mandatory minimums entirely, but less aggressive charging decisions, like those that the Holder Memorandum embodies.
He not only defers to Congress, but now defers to the charging decisions of the prosecution, which will fix whatever ails the guidelines.
In the end, the Court believes that the other two branches are fully equipped to deal with any problems that the ADAA’s mandatory minimums impose, either by legislation or by changing charging decisions.
By this reasoning, the judicial branch is reduced to the ministerial task of doing the other branch’s bidding. After all, it is the least dangerous branch. But how does he so easily forsake the role of exercising the discretion of his function as an Article III judge?
Federal judges’ voices in that debate are valuable, because those who work in the criminal justice system will have more contact with the defendants who go through that system than those who work outside of it will. Federal judges’ perceptions of individual culpability are not, however, the only perceptions that matter, or that matter the most; the public’s perceptions, as filtered through their elected representatives, matter more.
Essentially, Judge Browning’s view is predicated upon a political and philosophical perspective that defers to the will of the people, as reflected through their elected representatives. The people want unduly harsh sentencing, and who is a federal judge to disagree?
Notably, Judge Browning concedes that it is the proper role of the judiciary to step in when the conduct of the other branches violates the Constitution, though that appears to be the only limitation he acknowledges.
And yet, nowhere in his opinion does he consider the issues of separation of powers, the usurpation of the judiciary’s authority to sentence, the arbitrariness of the guidelines, which are untethered to the empirical analysis upon which they were sold when Congress approved the guidelines, or the fundamental justification for the exercise of fiat by the government against the individual, culpability.
While Judge Browning’s opinion is lengthy and repetitive, it is largely a political manifesto that defers to the “will of the people” through their elected representatives.
The public wanted what Judge Gleeson called “onerous” penalties. To be sure, in a day when presidential candidates used hard drugs, see Barack Obama, Dreams From my Father 138 (2d ed. 2004), presidential candidates push for drug legalization, see Mike Riggs, reason.com, Gary Johnson on “Defanging the DEA, Pardoning Marijuana Offenders, and Standing with Occupy Wall Street (Oct. 19, 2011, 2:17 PM), http://reason.com/blog/2011/10/19/gary-johnson-ondefanging- the, and the DOJ refuses to enforce federal marijuana law in states whose laws regulate rather than outlaw marijuana, it may be hard for current lawyers to remember the public outcry that erupted after Bias’ death. But that outcry was real, and Congress responded in a way that, it thought, reflected the public’s view of individual culpability — not those of an enlightened legal elite.
So the townsfolk may be storming the castle, pitchforks in hand and torches blazing, and it’s the role of judge to make sure no one stops the majority from their tyranny. Just as the times may change to embrace lenity, with a pot-smoking president and Wall Street being occupied, much to the consternation of those who would prefer to shave the heads of hippies, the guidelines were the product of a day when America was in a moral panic over the drug death of Len Bias (and, as Judge Browning notes, as we are again over the death of Philip Seymour Hoffman, as demonstrated by the need for that liberal icon and thought leader, Alan Dershowtiz [see footnote 17] to calm down the angry townsfolk).
Ultimately, Judge Browning is of the view that America can be as harsh as it wants to be, and it wants to be very harsh. And that’s just fine with him.