Hemlines go up.  Hemlines go down.  Wide ties. Skinny ties. Individualized sentencing. Sentencing uniformity.  We really need a Mr. Blackwell for criminal law.

The Department of Justice has issued its annual letter on the sentencing guidelines.  You remember them, the matrix that determined sentence before the Supremes in Booker said “never mind.”  So what does the DOJ have to say this year?

On the other hand, there is a second regime that has largely lost its moorings to the sentencing guidelines. This significant set of criminal cases includes those sentenced by judges who regularly impose sentences outside the applicable guideline range irrespective of offense type or nature of the offender. It also includes cases involving certain offense types for which the guidelines have lost the respect of a large number of judges. These offense types include some child pornography crimes and some fraud crimes, including certain frauds involving high loss amounts.

We are concerned by this evolution of federal sentencing into two separate regimes for several reasons. First, we think it leads to unwarranted sentencing disparities. More and more, we are receiving reports from our prosecutors that in many federal courts, a defendant’s sentence will largely be determined by the judicial assignment of the case; i.e. which judge in the courthouse will conduct the sentencing. Scholarly studies are now beginning to reinforce these reports. This is extremely problematic. In our consideration of federal sentencing policy, we begin from the principle that offenders who commit similar offenses and have similar criminal histories should be sentenced similarly. This was the foundational principle of the Sentencing Reform Act of 1984. We are concerned that our sentencing system may be meeting this principle of sentencing reform less and less.

Uh oh.  Sentences have “lost their moorings.”  Nautical theme alert.  That’s bad, as prosecutors and judges take nautical allusions very seriously.  Not so much defendants, who rarely crewed at Choate or sailed at Seawanhaka Corinthian, but those who know a jib from a jab understand its seriousness.

Missing from this in-depth analysis, which stretches the fabric of sentencing from the government’s loss valuation to the defendant’s months in prison, is any mention of 18 U.S.C. §3553, the statutory sentencing factors.  Might the disparity in sentencing be a product of the consideration of factors beyond the government’s beloved formulaic approach?  Might the government delve deep, deep into its soul to recognize that its loss valuation isn’t the only consideration?  Nah. Besides, the government has no soul.

The letter, sent to Sentencing Commission Chair, Chief Judge Jeff Sessions, fails to set forth what exactly the government is seeking, aside from his undivided attention.  Are they saying that sentences are too low?  Too high?  Too disparate?  Does the government really have to spell it out for Judge Sessions, because he might think that DOJ wants sentences of probation available for all crimes?  You know, interest of justice and all that jazz?

Well, the New York Times apparently thinks that’s indeed what the Department of Justice wants. 

Sentencing for white-collar crimes — and for child pornography offenses — “has largely lost its moorings,” according to the Justice Department, which makes a strong case that the matter should be re-examined by the United States Sentencing Commission.

As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will “breed disrespect for the federal courts,” damaging their reputation and the deterrent effect of punishment.

The Justice Department is not explicitly recommending that sentences be lowered; in fact, the new financial regulatory law suggests higher sentences in some areas. But readjusting the guidelines downward in some cases is clearly one of the possible routes the sentencing commission could take.

It’s not “explicit”, but somebody on the New York Times’ editorial board got the nod and wink.  The DOJ says, Judge Sessions, take down that wall!  Hooray, DOJ, tacit though your recognition that the sentences imposed are draconian may be.  Huzzah!

So why am I not reading the Justice letter the same as the Times?  I never crewed, but I know how to sail.  I get the nautical allusion.  I’ve had dinner at Seawanhaka, wearing a blue blazer with brass buttons.  What am I missing?

Uniformity based on the formulaic measure of government imposed plea terms is beloved by those who don’t want to think too hard.  That every case presents its own considerations, ranging from the facts and circumstances of the offense to the situation of the defendant, and occasionally even a challenge to the government’s vision of the harm caused, would mean that people who love statistics, easy answers, superficiality and committees would be unhappy.  None of this fits easily into the paradigm, and it makes people look bad in Washington when forced to take more than 10 seconds to explain something. 

It comes as no surprise that the DOJ pushes for a return to uniformity.  It makes their life infinitely easier, and puts the power back into the government’s hands.  But that the New York Times supposes that the government’s secret message to the sentencing guidelines commission is to loosen up, lighten up, lower the number, is, well, suspicious. 

Does the Times know something about the DOJ that I don’t?  Or maybe the Times is stumbling around like a drunken sailor, three sheets to the wind, and seeing what it wants to see.