US Sentencing Guidelines, an update

Last week the Supreme Court once again reassured federal judges that the guidelines were not mandatory, but advisory — and judges don't even have to presume that the sentences imposed in these guides are reasonable. Interesting. This case is called Nelson, and the same issues appeared in the cases called Booker, Blakely, Apprendi and more. It's a legal argument that has been coming before the Supreme Court for over a dozen years, but don't quote me -- give or take a few years at most. Past interesting, it's very important and not easy to present to legal lay-people. In a dizzy world, sometimes I want to give up trying. But, to do that would leave the people affected by bad law out of reach of the remedies presented.

From the Supreme Court Case:

"The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable. We think it plain from the comments of the sentencing judge that he did apply a presumption of reasonableness to Nelson’s Guidelines range.  Under our recent precedents, that constitutes error."

Professor Doug Berman has legal comments here, and links to the full decision, etc.

The question I have is: why do judges complain about long sentences they are 'forced to give out,' and when they have the opportunity to use discretion, they don't? Remember when a lot of legal scholars and advocates worried that Congress would impose a Booker Fix? Or the judicial sky might fall down without a Booker fix! It's been four years and data shows that federal judges stick to the guidelines. Some might quickly say they don't mind giving harsh drug sentences.

Booker didn't even get a sentencing break until the crack cocaine amendments came via the United States Sentencing Commission, and the retroactivity of small sentencing relief. Instead, things have hummed along since my last post four years ago, as if Booker didn't happen. The reason for the Nelson case? Perhaps it's as if the Supreme Court is saying to judges, "Um Humm, we said it isn't a mandatory sentencing grid, it is just a guide and may or may not be reasonable, aka fair. Use your discretion." 

A big moment. But nothing happened last time we thought we had a big moment. It's often reported, a first time offender, getting 30 years on the words of a 'cooperating witness' -- aka informant, still getting 30 years that is. I'd certainly thought, along with people with legal credentials, that judges would use discretion, that we'd see measurable downward departures, at least enough to match the levels of dissent the same judges have voiced over losing discretion.

Shills, usually Republican and always proud to wear the conservative label, scream, "Why those irresponsible liberal, activist judges are at it again."

It's a lie, a myth. Judges haven't been activists, and most of the dissent with regard to harsh drug sentencing laws in any one branch of government, has been the judicial branch. In other words, there hasn't been much activism or liberalism in sentencing -- but if you dig you can find judges dissenting opinions.

Before I go too far into lauding these comments federal judges make at some sentencing hearings, it should be noted a judge's dissenting opinion is just that -- an opinion. Not unlike your letter to the editor of a newspaper, or the comments on internet forums like this, including the one you're reading. It's a comment.

Only when a judge makes a departure from the guideline sentencing will a public record for statistical purpose be created for proper analysis of judicial dissent. What happens when a federal magistrate 'dissents' is akin to no purpose to the defendant. They largely occur at a very human moment, when the judge and defendant are eye to eye at sentencing. One man is about to crush another human person's life with a term of imprisonment. Most people don't realize that there's no one really keeping track of how many times a judge says, "I'm really sorry I have to sentence you to thirty years. I don't have any choice young man." Or when they say, "Maam, I know that you will die in prison because of the sentence I'm going to impose, and that seems rather extreme for a first time nonviolent drug offense."

The entire issue is throughly explained by Professor David Zlotnick in his Federal Sentencing Study. Compelling are his revelations that show judicial dissent occurs largely with Republican-appointed judiciary. But, at the same time, their dissenting opinions are of little use to defendants, so calling it 'activist' or 'liberal' is worrisome because federal judges don't act like activists, nor have they been liberal -- for quite some time.

Each time anyone hears the phrase "activist, liberal judges," make note of the person saying it about a particular judge, or wide proclamation. It's a myth and should leave the person saying it called out as a shill, not making a judge feeling demoralized, threatened.

Professor Zlotnick bemoans the inablility of the judiciary to voice critical legal opinions and depart from sentencing structures without fear of tongue-lashing labels thrown their way. I can't imagine President Obama stammering out a ludicrious accusation, and so judges are free to depart more, opine less. Put their dissent on the statistical radar of dissent.

More importantly, federal judges can't tell defendants that their hands are tied -- not really, honestly, not anymore. Now will the judges depart from the guidelines? If not, the judges who've dissented in the past simply wanted to blame someone besides themselves -- at that very 'human moment' of sentencing.