With perhaps the biggest week in sentencing decisions since 1987 just behind us, it was time for someone to tell us why this was a bad thing for defendants.  That’s why we have the New York Times.   Liptak’s column presents some interesting interviews and claims that provide a different perspective on what we (mistakenly?) thought was good thing. No, a great thing.

No, Adam doesn’t argue that crack-crazed convicts will be let out en masse to wreak crime and havoc on the street.  Quite the opposite.  He calls federal sentencing “draconian”, a word that finds its way into almost every defense lawyer’s explanation of the guidelines.

But he also calls the effect of the Supreme Court’s decisions “tinkering”.  To explain, he quotes former federal judge, not Utah Law School professor, Paul Cassell:

“The mandatory minimums are so draconian,” he said. “I’m a believer in a good guidelines system. And I would much rather trade a much tougher guidelines system and get rid of mandatory minimums.”

Say what?  He wants to trade off tougher guidelines for mandatory minimums?  I didn’t know that we were horse-trading between bad and worse, and that we had to give up any hope on fair, proportional, individualized sentencing in order to accomplish any change at all. 

According to Liptak, sentencing is just too hard for federal judges without guidelines.  Too personally painful.  By the use of guidelines, it removes the rending of their sympathetic hearts and allows them to perform this difficult task.

For context, Liptak turned to new Chief Judge of the Ninth Circuit, Alex Kozinski.  You may remember this photo of him partying with Libertarian Gene Volokh at the Federalist Society bacchanalia.  I’m not entirely sure, but I believe that his hand is raised in a gang greeting, or he’s trying to get people to call in and vote for him for American idol.



So how does Judge Kozinski feel about sentencing?

“Somehow I felt it was wrong for one human being to have that much power over another,” Judge Alex Kozinski, now the chief judge of the United States Court of Appeals for the Ninth Circuit, in San Francisco, wrote of the days before the guidelines were in force and judges had vast discretion. Writing in The Federal Sentencing Reporter in 1999, he said the experience was so traumatic as to feel like “almost an act of sacrilege.”

Well, it’s no walk in the park for defendants either, you know.  But the judge appears to be responding well, despite his trauma.  But how did he feel about the guidelines?

The guidelines were a sort of relief, Judge Kozinski said. They established relatively narrow ranges and “presumably take into account all those factors I don’t feel competent to weigh: punishment, deterrence, rehabilitation, harm to society, contrition — they’re all engineered into the machine; all I have to do is wind the key.”

So the qualification for the federal bench in San Francisco is key winding?  I would feel much better if the Chief Judge felt competent to apply 3553(a) to sentencing.  It just seems so . . . crucial. [Note to Adam Liptak: Didn’t it strike you as disturbing that the Chief Judge of the 9th Circuit doesn’t feel competent to fulfill a fundamental duty of his position?]

With all these changes being thrust upon them, how are things sitting with Congress?  Not well, according to Liptak.

There are several bills kicking around Congress meant to harmonize cocaine sentencing laws. But, perhaps perversely, the Supreme Court’s decisions last Monday may make Congressional action less likely. Letting judges have too much discretion does not sit well with some legislators, and that discretion can be controlled through mandatory minimums.

Aha!  Many of us wondered why that paragon of judicial activism, Antonin Scalia, joined hands with the left wing of the court to sing Kumbaya.  it’s now becoming clear.  This was a conspiracy to preserve mandatory minimums, which Congress was on the secret verge of obliterating in a fit of propriety, as so often happens in an election year.

Now, Congress is miffed that the Supreme Court beat them to it, showing up their soft-on-crime credentials.  Does this mean that Congress will shelve its secret plans to do away with mandatory minimums in a fit of pique at the Supreme Court.  Not necessarily.

It is hardly clear, moreover, that judges are itching to employ their new discretion even in the context of the guidelines. Many judges say that sentencing is the hardest part of the job. It wears on the soul.

There’s still hope.  All we need is a vast majority of the federal bench refusing to exercise sound discretion in sentencing following this latest round of Supreme Court decisions, thus saving wear and tear on their souls, and leaving the good work to Congress.  But don’t hold your breath.