There is a cancer in the federal criminal-justice system. It gets little attention from Congress, the executive branch, the media, or the public. And it is spreading fast.
Its importance to people caught up in the system, and to the judges who administer it, dwarfs that of the federal death penalty, the exclusionary rule, Miranda, date rape, gun control, and the other issues that generate headlines and heat.
The problem is federal criminal sentencing: its roots are the destruction of judicial discretion by the Sentencing Reform Act of 1984 and the mandatory minimum sentences passed by Congress since then in response to public pressure to get tough on drug abuse and crime.
The system of "guideline" sentencing ushered in by the 1984 act is "a dismal failure," as Judge Jose Cabranes of the U.S. District Court in New Haven, Conn., asserted in a speech at the University of Chicago Law School last week.
He cited "a near consensus among those who know most about the complex and difficult business of sentencing-trial judges, probation officers, defense attorneys, and many front-line prosecutors-that there is something profoundly wrong with this guidelines system and that substantial reform or abolition is the answer."
The 1984 act grew out of complaints that trial judges had such unbridled discretion that similar defendants got widely disparate sentences based on the predilections of the judge.
Congress created the seven-member U.S. Sentencing Commission to set binding guidelines based on a calibrated scale of defendants "offense levels" and criminal histories, and abolished parole.
With narrowly defined exceptions, judges were obliged to sentence every defendant within a range set by the guidelines, by choosing one of the 258 boxes in the Sentencing Commission’s grid.
It seemed like a good idea at the time, to many Democrats and Republicans alike. But four years of experience under the commission’s fat code book, compounded (and often overridden) by Congress draconian mandatory minimums, have been disastrous:
• The average prison term served by convicted defendants has more than doubled since 1984, from 13 months to 30 months, with the average for drug offenders rising from 27 months to 67 months.
• The federal prison population has soared, from 24,000 in 1980 to about 65,000. The billions being spent for new cells can’t keep pace with overcrowding.
• Hundreds of first-time couriers and other bit players in drug deals, once considered candidates for possible probation, are now being locked up for five, 10, even 20 years.
• Well over half of all federal prisoners are black or Hispanic, and these racial minorities are serving longer sentences on average than whites who committed similar crimes.
• The courts have been deluged by criminal trials and appeals, in large part because harsh penalties have increased defendants’ incentives to go to trial rather than plead guilty.
• The new sentencing process is so complex and hypertechnical that it takes judges roughly 25 percent more time than before.
• Many judges have little or no time left to try or supervise civil cases and are demoralized at being reduced to rubber-stamping manifestly unjust sentences.
What are the benefits for which we have paid such high costs?
One might have hoped that violent crime would be down. No such luck: The Federal Bureau of Investigation reported an 11-percent increase in 1990. (The 1991 data are not yet available.)
One might have hoped that the cocaine supply would be dwindling. No such luck: It was more plentiful and cheaper last year than in 1990.
One might have hoped that hard-core drug abuse would be declining. No such luck: The number of Americans using cocaine at least weekly rose 29 percent in 1991.
One might have hoped that by now the big drug kingpins would be rotting in prison. No such luck: Kingpins rarely get caught. And most of those receiving 10-year sentences are easily replaced midlevel dealers and small-fry couriers.
Perversely, many dealers, who know enough to strike deals with prosecutors, get shorter sentences than do bit players with no information to trade.
One might have hoped, at least, for real progress toward the 1984 act’s central goal of squeezing discretion out of the process and cutting down on sentencing disparities.
No such luck: The guidelines, and even more obviously the mandatory minimums, have simply shifted judges’ discretion to prosecutors. The latter can now fix a defendant’s sentence with some precision, and no public scrutiny, by choosing which charges (if any) to bring and whether to cite aggravating details in the sentencing proceeding.
This hardly represents progress: While judges are supposed to use their discretion to achieve just, balanced results, prosecutors understandably have different priorities, such as pleasing their bosses and pressuring defendants to become informants. Many are young lawyers with little experience.
Although there is little evidence that the guidelines have dramatically reduced sentencing disparities, the mandatory minimum laws clearly have increased racial disparities.
One reason is that Congress has set the same minimums for selling small quantities of crack cocaine (the drug of choice in black inner cities) as for selling 100 times as much powdered cocaine (preferred by white suburbanites). For example. 50 grams (two ounces) of crack brings the same 10-year minimum as 5 kilograms (11 pounds) of powdered cocaine.
(A similar Minnesota law was struck down by the state supreme court last month as racially discriminatory.)
The new system is, in short, a disaster. Why. then, has it drawn so little attention?
Judge Cabranes suggested some answers: Sentencing issues hold little interest for the press because they are so technical, with "no public personalities to demonize" and "no occasions for sound bites." Judges tend to shun public disputes, especially when their complaints can be trivialized as whining about loss of power. Many judges have "despaired of any possibility of legislative relief in the near future."
One might also ask how reforms adopted with such bipartisan enthusiasm could go so far wrong.
One reason is that, while the crucial safety valve of judicial discretion has been plugged, the system has been skewed toward undue severity by politicians pandering to public demands for punishment.
By piling on excessive mandatory minimum sentences for a growing list of crimes (as distinguished from the broad outer limits traditionally set by criminal statutes). Congress and the president have prompted the Sentencing Commission to adopt similarly draconian guidelines for other crimes, in pursuit of proportionality.
A second reason is that efforts to deflect criticism of the new system’s most obvious problems have only created worse ones.
For example, consider the Justice Department’s response to the concern that sentencing discretion was merely being shifted from judges to prosecutors. It instructed its prosecutors to charge all defendants (except those with information to sell) with "the most serious readily provable offense or offenses." If heeded, this directive marginally reduces the disparity problem by substantially aggravating the severity problem.
More fundamentally, the whole effort to replace judicial discretion with depersonalized, pseudoscientific formulas was misconceived. The way to achieve just results in infinitely variegated individual cases is to entrust the job to judges who have wisdom and humanity, not to bureaucrats in Washington who don’t know the facts and never even see the defendants.
This is not to advocate a complete return to the pre-1984 regime of unchecked discretion for trial judges. The sentencing-disparities problem was real: There were hanging judges who locked up minor offenders and softhearted judges who coddled dangerous criminals. (Few, if any, in the latter category have been appointed since 1980.)
But this problem could be dealt with simply by preserving the 1984 act’s best innovation- appellate review of sentences-while using advisory standards developed by an expert commission or by the courts for guidance.
The main point, as Professor Albert Alschuler of the University of Chicago Law School said in a recent law review article, is that "some things are worse than sentencing disparity, and we have found them."