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Wednesday, Nov 25, 2009
In 1989, that kind of handcrafted justice gave way to a new concept: mandatory sentencing. That year, the Supreme Court gave its blessing to mandatory sentencing "guidelines," to be written by a new agency, the U.S. Sentencing Commission, a seven-member body appointed by the president and confirmed by the Senate. The court also ruled that Congress had full power to set mandatory-minimum penalties, subject only to a very mild bar against cruel and unusual punishment.
Stripped of their traditional authority, trial judges have been forced to impose sentences that leave some of them feeling that their black robe is more like a butcher's smock. "You look at these drug defendants and their situation. It seems to me that if you are a human you need to have a heart to see the individual, their circumstances," says Judge Paul Magnuson, a 1981 Reagan appointee to the U.S. District Court in Minnesota. He presents a common case: "You have before you a young woman who has been given $100 and a free airplane ride, maybe her first airplane ride in her life, to carry a couple of kilos of cocaine around her waist. She's punished by the weight. She doesn't know who put her on the airplane, who she's to meet when she arrives. She doesn't know anything. She has no one to trade in. So she gets no break from the prosecutor. I've had that case. We all have. They just catch them at the airport and I basically have to rubber-stamp whatever they give me."
The neutering of the judges was not just the work of law-and-order Republicans, nor did it begin with the drug war. The move to curb judges was actually spearheaded by liberals in the 1970s, who enlisted Sen. Ted Kennedy, D-Mass., to take up the cause. Liberals felt that judges were generally too severe in sentencing, often racially prejudiced, and in any case much too arbitrary, took up the case. Their thoughts naturally turned to a bureaucratic solution. Bring in the experts, start drafting a sentencing manual, was their proposal.
It wasn't long before conservatives realized that they could use sentencing guidelines to achieve the exact opposite result: to get tougher on criminals. Where Kennedy saw angry judges lashing out erratically at kids and minorities, Sen. Strom Thurmond, R-S.C., saw softhearted judges giving dangerous lawbreakers slaps on the wrist. He wanted mandatory guidelines with teeth in them, and he wanted to give prosecutors the right to go to a higher court when they thought a trial judge was too lenient. In 1984, Kennedy and Thurmond finally passed the law establishing the Sentencing Commission, which issued its first guidelines in 1987.
Today, the judges still remember the Kennedy-Thurmond romance -- and they can tell you who came out on top. "When the guidelines were adopted, Kennedy got taken to the cleaners by Strom Thurmond," says Alan Nevas, a 1985 Reagan appointee to the U.S. District Court in Connecticut. "Kennedy was persuaded that the guidelines would relieve the disparity he saw in sentences against minorities. But that's been turned on its head. If you look at the impact of the guidelines on minorities, it's enormous."
What got turned on its head first, according to Judge Jose Cabranes, an appeals judge on the 2nd U.S. Circuit Court of Appeals in New York City, was the notion liberals had that the commission would be insulated from political pressures. In "Fear of Judging," a book Cabranes coauthored with his wife, Yale law professor Kate Stith, in 1998, they argue that "in reality the [commission] from its inception has been highly visible ... acutely sensitive to the political environment in which it operates, and controversial."
Diana Murphy did not have to read the book to get the point. A judge on the 8th U.S. Circuit Court of Appeals in St. Louis, she has chaired the Sentencing Commission since 1999. Almost the first thing she said in a telephone interview -- right after making it clear that she did not seek the commission post -- is that "in order to be effective, I have to be attentive to many constituencies. Nothing the commission does is effective unless Congress agrees with it."
Murphy, who was appointed to the commission by former President Clinton, staunchly defends the current system, noting many ways in which the guidelines are more flexible than they appear. In any case, she says, the old ways were hardly ideal. "There is a value to having standards to compare with." Before she was elevated to the appeals court by Clinton, she was a trial judge, appointed in 1980 by Jimmy Carter. "I remember in the old days hearing federal judges give speeches almost bragging about how powerful they were. An 'I can do anything' kind of thing. And there was no recourse. Now each side can get real relief on appeal. The guidelines provide objective standards and overall principles."
