Judge Mark W. Bennett takes a momentary break from his thoughtful posts here to take a deep dive into the myth of empiricism of the federal Sentencing Guidelines.

A federal district judge who has sentenced more than 4,000 offenders in multiple districts shares his experience and criticisms of current federal sentencing. The article begins with a history of federal sentencing, then focuses on problems related to mandatory minimum sentencing and application of 21 U.S.C. § 851 prior conviction enhancements in federal drug cases. The next section exposes the myth of empirical federal sentencing guidelines. The final section offers eight specific suggestions for federal sentencing reform.

Judge Bennett has made the point before, that we’re “addicted to sentencing,” and have come to believe the myth that there is some particular magic, some empirical reality, to the numbers of the guidelines that make them real, worthy, appropriate.

Using a series of plea discussions between lawyer and defendant, which would only be made more real if they included more curses, Judge Bennett demonstrates how the guidelines have fundamentally altered decision-making, from before, during the mandatory guidelines era (what I prefer to call the Supreme Court’s “oopsie” era, post-Mistretta but pre-Booker when they admitted it was all a funny joke), and the subsequent impact of the Guidelines on what is now viewed as “reasonable.”

Thus, as I have previously written, “in the arc of just twenty years, federal sentencing has gone from virtually unlimited sentencing discretion, to virtually no sentencing discretion,
back to sentencing discretion that emphasizes the “reasonableness” of the sentence imposed.”

Yet, the post-Booker sentencing catastrophe remains in full force. Booker did nothing to alleviate the major cause of federal mass incarceration: mandatory minimums and their
first cousin, § 851 drug sentencing enhancements.

While Booker may have removed the cuffs, the thumbscrews were still tight. Build in enough constraints “for the children” and they will linger, and dictate sentencing outcomes, forever. But if it’s all grounded in empiricism, then it must be proper, right?

Perhaps the greatest contemporary myth in the criminal justice system is that the federal sentencing guidelines are empirically based. This myth has been carefully and continuously
perpetrated by the U.S. Sentencing Commission in official and unofficial public statements, from new federal judges training (including my own in 1994) to statements in official Commission reports and in numerous annual Guideline Manuals. This mantra of empirical basis for the guidelines is repeated so often by so many that it is no wonder that, with
respect, I am willing to bet that most of my colleagues on the federal trial bench actually believe it.

In short, it’s empirical because the Sentencing Commission said it was, and the judges who accepted the premise nodded dutifully without considering, as did Judge Bennett and others like Gleeson and Rakoff, that the numbers were at best grounded in arbitrary mandatory minimums and worse pulled out of the ether.

In the final section, Judge Bennett offers a list of changes to address the damage the Sentencing Guidelines, mandatory minimums and § 851 drug sentencing enhancements have caused, not the least of which is:

I strongly encourage federal sentencing judges to regularly visit in federal prison inmates they have sentenced. I have done this for well over a decade. This is perhaps short of major changes in mandatory minimums and § 851 enhancements the singular most important sentencing reform. This gives sentencing judges great insight into how sentences they impose effect offenders and promote or detract from the statutory purposes of sentencing contained in title 18 U.S.C. § 3553(a).

While this is certainly better advice than hang out at the country club and discuss in somber tones the hard work of putting people in prison for life plus cancer, it falls short of my view that every judge (and prosecutor) should spend a week in general population once a year to gain a little insight into what they’re actually doing to other human beings.

For those who have followed Judge Bennett’s views on sentencing, particularly his brilliant writings with lawprof Mark Osler, this article will come as no surprise. But it serves to emphasize that we’ve embraced the myth of empirical sentencing, and its virtues, despite its being fabricated from whole cloth.

As always, Judge Bennett’s writing is worth your time and consideration if you want to understand how the system has been distorted, and how easily the lie of empiricism covers over the fact of fabrication. Read the new article here.