His words were uttered at a time when the issue of consistency made not only different sense, but carried different meaning. They were thrown at me by a former federal defender, about to take his new job as a budding law prof, and he took comfort in the United States Sentencing Guidelines. This was jarring. When did the defense find the sentencing guidelines their friend?
It came in response to my “modest proposal” for crim law reform, that we roll back everything about the system, from laws to sentencing to police, to May, 1973. Oddly, no one either asked why May, 1973. But his response was surprising.
Cool idea, except for all their problems I wouldn’t want to give up on (non-binding) sentencing guidelines. Sentencing in 1973 was so discretionary Judge Frankel called it “the antithesis of a system of law.”
The judge was Marvin Frankel of the Southern District of New York. He was appointed in 1965 by Lyndon Johnson and left the bench in 1978 and became a partner at Kramer, Levin. The reference was to a New York Times article from 1973 in which Judge Frankel shredded federal sentencing as lawless, a shocking article since federal judges didn’t speak openly about their work and almost never critically.
His point, that there were no brakes on federal discretion, meant that wildly disparate sentences would be imposed from district to district, or even by judges within a district. And it was true that one judge might give probation while another gave ten years. It was, very much, the wild west. But the context was that SDNY was a more rational, more reasonable, cadre of judges,* unlike judges down south for whom a sentenced imposed on a poor black man would be ten times, 100 times, that imposed on a white man. Consistency was, to Judge Frankel, of critical doctrinal importance, and he was a huge proponent of the Sentencing Guidelines to achieve that consistency.
But then, would consistency have been important enough for the enactment of his dreamed guidelines had he known that when they were created, sentences of outrageously extreme length would be mandated? They were supposedly empirical, based on some scientific process to determine what the normal sentence for a crime would be, and increased or decreased based on the factors that real judges took into account.
This was a lie. They just made it all up, and over the period between Mistretta (1989) and Booker (2005), when the guidelines were mandatory, these absurdly long sentences became normalized, such that newer lawyers, prosecutors, judges, believed that the “consistent” sentences fixed were proper sentences. This is why people now believe that life plus cancer carries some sort of magic as if handed down from god as the “right” sentence for people we hate.
And federal defenders don’t realize this? New prawfs don’t realize this? It’s not that Judge Frankel didn’t have a point about wildly disparate sentences, but he never meant that everybody getting 121 months mandatory minimum was the lawful fix. It occurred to me that Judge Frankel, who died in 2002, wasn’t a living, breathing person to this new prawf, but a mythic historical figure.
His brethren at SDNY uniformly held his beloved sentencing guidelines unconstitutional when they were enacted, which ended with the Supreme Court’s misguided decision in Mistretta. It was the darkest of days for the criminal defense bar, and the next day a line formed around the block at 1 St. Andrews Plaza of defendants and their lawyers waiting to snitch on their mothers, fathers and brothers. It was the only way out of life plus cancer.
Today, there are two young lawyers being held for charges of throwing a Molotov cocktail into an empty police cruiser. There was a cry of outrage that these two very progressive lawyers could spend “up to” 45 years in prison. It’s a max sentence and meaningless in terms of reality, but it made for a sufficient talking point to generate outrage. After all, even if the act involved wasn’t exactly okay, their motives were pure, their goal laudable to the woke. They weren’t terrorists, it was argued, even if they did that thing terrorists do.
Today, there are four men charged with damaging federal property for trying to topple a statue of Andrew Jackson in Washington, D.C. He was a terrible president, and, it’s alleged, these four decided it was up to them to bring his statue down, even though it’s a federal crime. This prompted a former government lawyer to speak out.
It’s really shameful that the federal government is throwing the book at these guys so Trump can tweet about it.
Is charging people, who were allegedly caught on video doing what they’re being charged with, “throwing the book” at them? Had these been Klansman tearing down a statue of Martin Luther King, would he feel the same way? Perhaps. But regardless, when is the right time to consider laws, consider sentences, consider consistency and consider that the same conduct that’s done by those you despise remains just as criminal when done by those you kinda love a lot? Judge Frankel wasn’t entirely wrong about consistency, but it’s not just sentencing, but prosecution, that’s affected. If it’s a crime when your enemies do it, it’s a crime when you feel closer to the mob than the president.
*The judges of the SDNY were a stodgy bunch, made up mostly of old lawyers from white shoe firms, some of whom were being put out to pasture to get their non-producing butts off the partnership rolls. It was by no means “liberal” in the sense we think of today, but then no federal court was. Still, it wasn’t nearly as bad as other districts, so the general range of federal judges on sentencing was bad to horrifically bad.
But then, fed judges, who had never done a criminal case in their lives, were first dealing with crimes, which were almost entirely the province of state courts until then. The hallways of federal courthouses were spotless, no nasty criminals darkening their marble.