Most lawyers won’t be able to say they know what it was like to appear before former SDNY Judge Shira Scheindlin for sentence. Consequently, her Washington Post op-ed may come off somewhat disingenuous.
Every first-year law student learns that sentencing has four goals: retribution, incapacitation, deterrence and rehabilitation. Yet thanks mostly to the Sentencing Reform Act of 1984 and the Anti-Drug Abuse Act of 1986, I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge. And I was not alone. Over the years, many of my colleagues on the federal bench felt the same frustrations.
There are some quibbles with this paragraph. Some would argue that there are two separate deterrence goals, general and individual. Some would argue that to blame the Sentencing Reform Act of 1984, but not the Supreme Court’s decision in Mistretta v. United States, misdirects blame for the mandatory guidelines, which was just as responsible, if not more so, as mandatory minimums for unduly harsh sentences. But these are quibbles.
What may strike people as hardest to swallow is that a federal judge complains about being powerless to exercise judgment, forced to play bean counter rather than judge. If not a federal judge, then who?
He could look at defendants during their sentencing hearings and give them the dignity of saying exactly what he thought.
“Congress has tied my hands,” he told one defendant now.
“We are just going to be warehousing you,” he told another.
“I have to uphold the law whether I agree with it or not,” he said a few minutes later.
It makes your head hurt. Judge Bennett has been arguing about the impact of implicit bias, the “in-group” effect of sentencing people who look like the judge. A more useful description might be people with whom the judge can relate, whose life and experiences are sufficiently similar to a judge that he can understand the confluence of influences that landed the guy in the well. Judge Scheindlin does so as well.
As early as the 1970s, federal trial judges — including Marvin Frankel, the intellectual father of the Sentencing Commission — noted that judges tended to impose lighter sentences on defendants who looked like them and harsher sentences on those who did not: minorities, undocumented immigrants and drug addicts who appeared in court looking poor and ragged. Unfortunately, the new rules codified some of these disparities: At one time, defendants received five years in prison for possessing five grams of crack, while it took 500 grams of powder cocaine to warrant the same sentence. This 100-to-1 asymmetry was reduced to 20-to-1 in 2010.
The crack sentencing disparity has long been a core issue for the argument that the legal system is infected with racism. When crack was invented, a myth immediately grew that it was far more dangerous, far different, than powdered cocaine. There was a crack epidemic, and so Congress hopped on the savior train, beat the law and order drums, and after creating the problem of fear of crazed violent crackheads, fixed the problem at a 100 to 1 ratio.
It was nonsense, of course. And the 20 to 1 ratio is still nonsense, though the myth is so unshakable that even today a disparity exists. The only real difference between crack and powdered coke is who prefers which delivery method, and how much it costs to get a decent high. It’s like saying Mad Dog 20/20 is a different “drug” than Cristal because of its price point
But this was raised with federal judges way back when. And they laughed it off. They shrugged. They blamed Congress for pandering to the public’s demands for blood, even as Congress and law enforcement was largely responsible for that demand. And federal judges loved them their special agents, who never lied and never made a mistake.
In fairness to Judge Scheindlin, getting wheeled out to her was like winning the criminal justice lottery. Not because she was a “defense judge,” as many have argued. She could be pretty darn stern on the bench. But because Judge Scheindlin would listen to arguments when other judges wouldn’t. If you made a sound argument at sentence, Judge Scheindlin was the judge who would grant a heartland departure, who would accept the premise that a defendant’s criminal history of 17 minor busts for possession of a joint was a reflection of life on the streets of uptown Manhattan or the South Bronx, where cops could always find some black kid to roust.
Having made that argument to Judge Scheindlin, I can tell you that she’s the real deal. She accepted it, departed and sentenced accordingly. Judge Scheindlin didn’t come upon her epiphany after she hung up the robe. This is what she actually did in the courtroom.
So now that Booker has “corrected” the error of Mistretta, are mandatory minimums the only remaining problem that frustrates federal judges and reflects the implicit bias of this racist system? Not quite, and this is where the complaints fall short.
What about suppression hearings? Now that we have video conclusively proving that law enforcement isn’t the credible angels they portrayed themselves to be, how often does a federal judge find the agent credible despite his far-fetched story or the defendant’s testimony at the hearing, at the risk of adding an obstruction charge to the mix, challenging the fortuitous and absurd claims of the government? Almost never. Federal judges still love their agents.
And what about the phantom drug quantities, or the phantom fraud losses, that grossly inflate the guidelines, as well as the mandatory minimums? How does a guy with no money have the magical ability to possess a million dollars’ worth of drugs, just because the agent said that’s what he offered to sell?
It’s not that Judge Scheindlin’s reflections on being reduced to a sentencing bean counter are wrong. It’s not that Judge Bennett’s point about implicit bias is false, although why it’s implicit rather than obvious has never been clear to me. But the frustration of having one’s hands tied by Congress would be far more sympathetic if judges used their vast authority to achieve a more just outcome throughout the process, rather than just feel awful about it at the end.