Why Congress Can’t Spell Parsimony

Until the day courts realized that the Supreme Court meant what it said in Booker, and that the guidelines really, really weren’t mandatory anymore, nobody gave a damn about 18 U.S.C. §3553(a). It was an orphan statute, rendered superfluous by Mistretta, and the annual tweaks by the unelected commissioners who magically caused huge sentencing swings for reasons that evaded empirical explanation. But that was then, this is now.

In the post-Booker world, there is nothing more critical to sentencing than 3553(a). Until you read it.  Section 3553(a) is best understood as two separate parts, the parsimony clause and the considerations.  First is a clear, and critical statement:

The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.

The key phrase is “not greater than necessary,” the admonition that no judge is empowered to imprison a person for a day, a minute, longer than necessary.  The problem is, obviously, necessary to do what?  And so we come to the second part, the considerations:

The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

This isn’t statutory drafting at its best.  Paragraph 1 is filled to overflowing with various, undifferentiated but crucial elements, while paragraph 2 is a curiosity.  Consider it this way, the traditional five goals of sentencing are:

  • Retribution (punishment)
  • General Deterrence
  • Specific Deterrence
  • Incapacitation
  • Rehabilitation

So why didn’t Congress just say that in 3553(a), rather than a bunch of confusing, perhaps conflicting, vague and overheated rhetoric?  Apparently, Judge Richard Kopf at Hercules and the Umpire wonders about that too.  Judge Kopf says it’s time to junk 18 U.S.C. §3553(a).

If you read these goals and try to apply them seriously you will end up insane. They are inherently contradictory. They provide no meaningful guidance to the sentencing judge.If  you believe that federal judges are like Platonic guardians imbued with the powers that only the elite can possess, these goals are perfect. Essentially, the federal judge is told to do the right thing. The Supreme Court’s line of cases (e.g., Booker) punctuates that point by making the Guidelines irrelevant for the sentencing judge inclined to sentence without meaningful external constraint. On the other hand, if you believe, as I do, that federal sentencing judges require specific direction from Congress because (1) that is the democratic way and (2) federal judges are no more smarter when it comes to sentencing than the reasonably well-informed lay person, then it is clear that we must junk or rewrite section 3553(a).

My view is that either the judge is being deliberately hyperbolic in his second point, or he hangs out with a better class of reasonably well-informed lay person than I do, but to the extent he’s suggesting that our platonic guardians have no special magic that informs them what to consider and how to balance it, then yeah, I’m with you, Judge.

Then again, what could Congress have said that would have helped?  You can believe in the democratic process all you want, but sentencing is, and always has been, a toxic mix of bias, assumption and voodoo.

In sum, I don’t care whether section 3553(a) is rewritten or junked entirely. If Congress elects to rewrite the statute, so long as the statute sets consistent sentencing goals, I don’t care what goals Congress picks. If Congress junks the statute (or leaves it unchanged), and, by so doing, proclaims that we federal judges are to pick the goals that we think best, then that’s fine too. I just want to know what I am supposed to do at sentencing. Is that too much to ask?

In the comments, Doug Berman offers his answer:

That these sentencing instructions are challenging, multi-dimensional and lack any clear answers in most cases, Judge, does not mean they provide “no meaningful guidance.” Moreover and most importantly, 3553(a) provides a template for the parties to make focused arguments to you based on case-specific facts that must be tethered to traditional sentencing goals and considerations. And the parsimony/goldilocks requirement of the preamble, as well as separate “give reasons” requirement, should help ensure that you are always striving to decide and explain to the parties why you think a particular chosen sentence is “just right.”

I don’t think I can ever call it the parsimony clause again after reading this.

I read this post as a variation of shooting the messenger given that most everyone agrees that sentencing is very hard, and rarely will one “right” sentence be obvious in any case. Congress in 3553(a) sets out a reasonable list of what hard sentencing issues it wants to make sure you judges (and the lawyers before you) discuss and consider each time you bring state power to bear — and you them complain Congress is not making your (for-life) job easier by providing a more simple (dare, I say, too simplistic) sentencing script to follow so that you do not have to think quite so hard about all the hard issues set out in 3553(a).

Ouch. I could feel that slap all the way on the coast.  And Judge Mark W. Bennett (or, “the other Bennett,” as he’s called around here) gets in his licks:

Sentencing requires us to weigh that whcih cannot be measured. I am comfortable with that.

Judge Kopf replies in kind:

Let’s be honest then and declare that sentencing is entirely a matter of discretion so long as the sentence is within the punishment range set forth in the statute that defines the offense of conviction.

And the bottom line is reached, which is probably the most true and significant bit of information anyone can learn about sentencing.  There’s no magic to it.

No one can honestly say that 135 months is justified by 3553(a) but 127 months isn’t sufficient. Sentencing is reduced to a gut feeling, which is then bolstered by the best references to 3553(a) a judge can muster.

So why did Congress make such a mess out of the language of 3553(a), to obfuscate rather than illuminate, to toss around a bunch of vague, maybe even meaningless, words that convey an impression of significance that doesn’t bear up to scrutiny?  Because it wouldn’t have mattered what 3553(a) said, except the part about “not greater than necessary,” and, fortunately, that part is absolutely clear.


11 thoughts on “Why Congress Can’t Spell Parsimony

  1. Richard G. Kopf


    “The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” Note that the parsimony provision is explicitly linked to paragraph 2 of section 3553(a). The “purposes set forth in paragraph (2)” are these:

    (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

    (B) to afford adequate deterrence to criminal conduct;

    (C) to protect the public from further crimes of the defendant; and

    (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner . . .

    Now, I never thought the “not greater than necessary” language standing alone had any practical meaning for the sentencing judge since no judge that I know of imposes a sentence that he or she believes is unnecessary. It’s little more than saying, “Don’t be stupid.” But, even if that incantation had independent meaning, when Congress tied those words it to the broad language of paragraph 2 any such meaning disappears entirely.

    Let’s be candid. Berman, et al., want to go back to the days before the Sentencing Reform Act became law while not admitting that such is their desire. That’s OK with me, but let’s drop the BS and, when we do, let’s make public each judge’s sentencing statistics.

    All the best.


    1. SHG Post author

      I understand and appreciate your point on the “not greater than” language, but given the vagaries of sentencing, it’s a point that I’ve successfully driven home over and over. What will 135 months accomplish that 121 won’t? What is gained by a 14 month increase? Will 135 months deter, but 121 won’t? Is 10 years inadequate punishment, but 11.25 perfect? How could that possibly be?

      In tandem with emphasizing the absurdly long sentences suggested by the guidelines, cutting that last year or two off the back end is where we earn our fee.

      When put that way, few judges can offer any credible explanation as to the difference. And as we all know, there isn’t any actual justification to be had.

    1. SHG Post author

      You scare me. As much as this is all about sentencing being voodoo, it remains the least worst of all possibilities. Automation would be the worst.

      1. Jake DiMare

        I assume in those unfortunate circumstances when a criminal defense attorney is unsuccessful in proving the innocence of their client, they are then afforded the opportunity to persuade a judge and/or jury that their client is worthy of a lighter sentence, for a variety of mitigating factors?

        As the resident SJ squeaking wheel of a folksy layperson’s perspective on the law, representing the ignorant masses, I can see where this would frighten a criminal defense attorney, if my assumption is correct. And I assume it is.

        However, I can tell you those of us in the tech field are programming computers to do some pretty fantastic things in the pursuit of deeply personalized experiences…And there will come a time when somebody has created the sentence-o-matic 1000…Even capable of accepting and calculating the value of mitigating circumstances.

        As a representative of the ignorant masses, I find comfort in the notion that everyone would be given sentences using the same criteria, and never again subjected to the whimsy of some of the judges I’ve read about on this blog.

        1. SHG Post author

          My first impulse was to trash this comment, as being off topic. But since you’re one of my favorite folksy laypersons, I decided to post it anyway.

          To explain the many levels of wrong would require a great deal of time. You are deeply outside your depth here, and I’m not in the mood to start explaining all the facts of life from the beginning of time to the present. I’m sure there will be a sentence-o-matic 1000 some day. It will be the worst thing that has ever happened.

  2. Doug Berman

    You are so very wrong, Judge Kopf, that I want a return to pre-SRA with no sentencing law, and your misunderstanding of 3553(a)’s import and my affinity for 3553(a) suggests yet again that you fail to see the value and virtues of defined (but general) sentencing standards and aspirations in statutes that lawyers and judges must persistently refer to and reference. I sense you think any/all list of broad sentencing standards/considerations will tend to be meaningless, and that only rigid sentencing rules would be truly meaningful. But I think even vague legal standards can be meaningful for litigants and judges, especially as a common-law gloss develops, and the history of 4th Amendment doctrine and other like broad constitutional standards reinforce my faith in judicial ability to give useful content to vague terms

    What you might be fairly claiming Judge Kopf is that, in the hands of nimble judges with their own (conscious or unconscious) agenda, 3553(a) can be turned into BS pablum in service to any goal a particular judge wants to achieve. I am not sure this is true, but even if it is 3553(a) still plays a role in requiring judges to package their BS in certain ways with certain kids of legal language. I think the rule of law in sentencing is very important, and thus having even vague law in place is, in my view, far superior to telling judges they can do anything/nothing at sentencing.

    1. SHG Post author

      I don’t read Judge Kopf as saying that “any/all list of broad sentencing standards/considerations will tend to be meaningless,” but I agree that he seems to want concrete rather than theoretical rules. That said, 3553(a) isn’t a model of clarity.

  3. PaulaMarie Susi

    I dunno. I read this ( U.S.C. §3553(a) )as allowing the judges to do what they thought was fair, given the specific facts of the case. Each case is different, and one hopes the sentencing judge knows that. At least in the EDNY we do. WTF does Congress know? I certainly don’t want them tying our hands again.

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