Via Doug Berman, Gilbert Stroud Merritt, Senior Circuit Judge in the Sixth Circuit, has apparently had enough.  Perhaps this is the product of too many years on the bench, watching as people before him are sacrificed on the alter of simplistic, reactionary politics. 

In United States v. Jeross, (6th Cir. Apr. 4, 2008), Judge Merritt issued a dissent that leave little doubt about his feelings toward the United States Sentencing Guidelines and the Circuit’s refusal to stray.  Of particular interest is his note that the Supreme Court’s efforts in Blakely–Booker–Cunningham are simply being ignored in favor of the rote application of the guidelines.

This is another drug case in which our system of criminal law has imprisoned for many years two more lives and torn up two more families by grossly excessive sentences imposed in the “War on Drugs.”  There are many reasons that our federal system of punishment has turned in this direction, not the least of which is the advent during the last 20 years of our irrational set of sentencing guidelines that judges apply by rote on a daily basis.  We are constantly adding new prisoners like these defendants with long periods of incarceration to the more than two million men and women now incarcerated in the hundreds of prisons and jails around the country.

These sentencing guidelines hold that mitigating factors like family ties, mental illness, education, and the likelihood of rehabilitation are simply “not relevant” in the sentencing process.  Judges’ minds are closed down and sentences ratcheted up by applying convoluted conversion formulas like the one just recited in the majority opinion.  The recent Blakely–Booker–Cunningham line of Supreme Court cases has given judges an opportunity to rid the system of some of the worst aspects of guidelinism, but we judges soldier on by applying the old mandatory system as though nothing of significance had happened.  The cost to the taxpayers and in human lives has become enormous and shows no signs of change.

Having argued these points with passion over the years, only to have a few judges express sympathy, but claim their hands were tied, and to have other judges blithely announce that compelling factors in sentencing are simply off the table, and questioning why I would waste their time by even bringing them up, Judge Merritt’s dissent well expresses the frustration of trying to return some semblance of reason to a process that designed to eliminate any degree of individualized consideration.

Doug notes in posting this dissent that he does so to let Judge Merritt, whose dissent he aptly described as tilting at windmills, knows that at least one person is paying attention.  Make that two.