The Point of Departures

Just sentences require judicial discretion.


Testifying before Congress in April, Supreme Court Justice Anthony Kennedy tried to explain why it's important for judges to have discretion in sentencing. He cited the case of "a young man raising marijuana in the woods. That makes him a distributor. He's got his dad's hunting rifle in the car—he forgot about it and wanted to do target practice. That makes him armed. He's looking at 15 years. An 18-year-old doesn't know how long 15 years is."

Members of Congress apparently did not grasp Kennedy's point. The next day, almost all of them voted to impose new restrictions on sentencing discretion, making a system that Kennedy rightly called "harsh" and "in many cases unjust" even more draconian.

Under an amendment that was tacked onto a wildly popular law ostensibly aimed at preventing child abductions, judges have substantially less leeway to deviate from federal sentencing guidelines. The law makes it easier for prosecutors to challenge "downward departures" from the minimums indicated by the guidelines, instructs the U.S. Sentencing Commission to discourage such departures, and requires that Congress be kept apprised of judges who approve them.

Adding to the intimidation, Attorney General John Ashcroft recently issued a memo ordering federal prosecutors to notify the Justice Department of all downward departures not requested by the government. (Prosecutors approve a large majority of departures, often in exchange for information or testimony.) The Justice Department is expected to be much more aggressive in challenging sentences it considers too lenient, and the stricter review standard established by the new law means it is more likely to prevail.

Not surprisingly, liberal Democrats have complained about the shift in power from judges to prosecutors. Sen. Edward Kennedy (D-Mass.) accused Ashcroft of continuing an "ongoing attack on judicial independence" by requiring prosecutors "to participate in the establishment of a blacklist of judges who impose lesser sentences than those recommended by the guidelines."

Rep. John Conyers (D-Mich.) said: "John Ashcroft seems to think Washington, D.C., can better determine a fair sentence than a judge who heard the case or the prosecutor who tried it. The effort by DOJ to compile an 'enemies list' of judges it feels are too lenient is scary."

But familiar Ashcroft critics are not the only ones who are worried. Chief Justice William Rehnquist, who is not exactly known for soft-heartedness toward criminals, warned Congress in April that the new sentencing rules would "seriously impair the ability of the courts to impose just and responsible sentences." After the law passed, he said tracking the sentences of particular judges "could amount to an unwarranted and ill-considered effort to intimidate judges in the performance of their judicial duties."

Or consider U.S. District Judge John S. Martin, a former federal prosecutor who was appointed to the bench 13 years ago by George H.W. Bush. According to the Associated Press , "Martin has earned a reputation as a judge capable of stern sentences: In sentencing one violent gang member to life, Martin ordered the man held in solitary confinement and said he would have imposed death if he could."

In June, Martin announced that he was resigning from the bench because he could no longer participate in "a sentencing system that is unnecessarily cruel and rigid." He cited the current "effort to intimidate judges" as well as longstanding onerous punishments for drug offenders.

Judges like Martin are not simply angry over losing some of their prerogatives. "For a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence," he wrote in a New York Times op-ed piece, "is completely at odds with the sentencing philosophy that has been a hallmark of the American system of justice."

The sentencing guidelines, created under legislation that Congress passed in 1984, were supposed to prevent "unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct." But if they are not sufficiently flexible, they can also prevent warranted disparities, because it's impossible for the guidelines to take into account every factor that might help determine how much punishment a particular defendant deserves.

Unlike judges, the Sentencing Commission does not see individuals; it sees only broad classes of defendants. Members of Congress operate at an even higher level of abstraction, where no punishment is too severe because seeming tough on crime takes precedence over justice, which can only be dispensed one case at a time.