The Fallacy of Sentencing Deference (Update)

For those whose fond law school memories have yet to fade completely, you may still have some tiny recollection of admin law’s peculiar crutch called Chevron deference.  The notion is that if Congress hasn’t spoken directly to an issue, the courts will defer judgment to that of an administrative agency because they have magical voodoo powers.

It’s one of those legal fictions where the courts presume the agency to know how to administer its law because of its specialized knowledge, as opposed to its members being appointed because they shared a dorm room with a politician when both were back at Rosemary Hall.  It relieves a judge of the responsibility to think, to rule and to be responsible for his decision, by allowing the judge to shirk responsibility and shift the blame to the agency.

Such an animal exists within the federal criminal law sphere as well, called the United States Sentencing Guidelines Commission. No, it’s not quite a perfect analogue to an administrative agency, nor does anyone mention Chevron deference, but there is the same awed expectation of voodoo, the facile presumption of mad skilz, that allows judges to pass the buck.

For those defendants sentenced between Mistretta (1989) and Booker (2005), during which time the United States Supreme Court forgot to mention that the Sentencing Guidelines were only advisory and not mandatory (oops, sorry guys), a group of mavens usurped the role of sentencing judge by reducing one of the most difficult, fact-specific duties of a judge to a few lists and a grid.

By pretending there was something empirical about it, even though it has since been exposed by Judge John Gleeson as premised on a monumental fraud following the Len Bias hysteria, judges wrapped themselves in the warmth of knowing that the insanely harsh sentences they imposed weren’t their fault, but their deference to the Guidelines Commission.  After all, they had magic voodoo to know how every defendant in the nation should be sentenced based on a handful of factors.

The only way out was to argue that a case fell outside the “heartland” of the guidelines, which was like asking a judge to call their beloved Guidelines Commissioners incompetent buffoons.  Of course they knew about your specific defendant when they crafted a three-sentence advisory note. They know everything. They’re magic.  And besides, Congress enacted mandatory minimums, and the Guidelines mesh perfectly around them and only go up, up, up from there. If that ain’t empiricism, I don’t know what is.

From the heartland, Judge Richard Kopf has had a change of mind about the propriety of mandatory minimums. Much as he admires the signatories to the latest letter to the Senate, the arguments therein, and harbors unkind feelings toward those accused of drug crimes, his thoughts have evolved.

I agree with much of what is contained in the letter.  In particular, and despite weak liberal reasoning to the contrary, harsh federal drug sentences have undoubtedly reduced federal crime rates for drug offenses to record lows. Mandatory minimum sentenced undoubtedly help prosecutors squeeze lesser drug dealers so that the prosecutors can get at bigger fish. To say that the federal prisons are largely comprised of “non-violent” drug dealers defies the reality of the terribly vicious and violent drug business. Twenty two years of imposing federal sentences for drug offenses, including imposing mandatory life terms on blacks and Hispanics, convince me that mandatory minimum statutory sentences are perhaps the most powerful of all the tools a federal drug prosecutor possesses.

But I have come to the conclusion after these twenty two years that mandatory minimum sentences for drug offenders should be totally eliminated or at least scaled back such that they play no part in most federal drug cases.

Judge Kopf offers his reasoning for his remarkable embrace of a new religion, but if I may be so bold as to sum it up, it’s because of Chevron deference, Guidelines style.  The Sentencing Guidelines Commission, hardly “soft on crime,” doesn’t need no stinkin’ mandatory minimums:

It makes no sense to give the Commission the power to build a rational and empirically driven sentencing scheme and then instruct the Commission that no matter how rational and data-driven that scheme might be the design must be arbitrarily altered by fixed numbers.  If we are to have a panel of thoughtful sentencing experts backed up social scientists of high repute (the Commission) Congress must set the Commission free.

After all, social science, especially by guys of “high repute” and not those crappy ignoramus social scientists, is almost the exact same thing as arithmetic, and that can’t possibly be wrong.  Plus, if it’s called empirical and data-driven, the scent of voodoo is almost undetectable.

Of course, there is no sound basis for the fact that the Guidelines were crafted at the outset around mandatory minimums, skewing from the outset the perception of proper sentencing and thereafter producing a generation of absurdly severe sentences to form a data set of normalcy for imposing life plus cancer on defendants.

So who needs mandatory minimums anymore? They served their purpose, as new federal judges never practiced law a day in their lives when sentencing took into account the hunger in a child’s stomach compelling a mother to carry a bag with ten kilos of heroin across a border, who think a sentence of 121 months was handed down to Moses on Mt. Sinai.

But for judges with 22 years experience molding the lives of children of uneducated parents with little expectation of feeding them because IBM wasn’t hiring minorities from Fort Washington that day for executive vice president positions, falling back on the magical voodoo of the commission made it perfectly acceptable to impose sentences of decades, lifetimes, for hard, bad choices, for the frail-minded, for the traumatic brain-injured from a few clubs to the head during their youth, for the angry, the miserable, the hopeless, the cynical.  After all, the Sentencing Commission said this was the correct sentence, and they must know best.

Thus, the court defers.  And loses no sleep at night knowing that the magical voodoo of the United States Sentencing Commission is right and just.

Update:  I have been duly chastised by no less a character than Smokey the Bandit Bear for not seeing the raging forest fire through the trees.  Judge Kopf and I agree, wholeheartedly, that mandatory minimums must die a horrible flaming death.

We can discuss the charred remains afterward, so my harping on our point of disagreement should not distract from our concurrence in the main point. It’s time to end mandatory minimums.

4 thoughts on “The Fallacy of Sentencing Deference (Update)

  1. ExCop-LawStudent

    The Hon. R. Kopf is correct, but only partially. We not only need to get rid of the minimum sentences, we need to revise the entire drug “war.”

    We need to surrender and start over. All the war has done is create a path to wealth via criminality (ala Al Capone and Prohibition) and to militarize the police to the detriment of that public service.

    One of the first exercises in the war on drugs was a methadone treatment program in an eastern city. Burglary dropped 40%. But of course, since the program didn’t focus on incarceration, it was dropped.

    Another was the commission formed when President Nixon announced the war on drugs. They recommended that marijuana be legalized – and were ignored.

    What we need to do is try and find something that works. It’s clear that what we are doing now doesn’t meet that criteria.


    1. SHG Post author

      This is a post about the Sentencing Guidelines, not the drug war. Since you’re an ECLS, you’re forgiven, but don’t let it happen again.

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