Revista Volumen V - Academia Puertorriqueña de Jurisprudencia y ...

power of federal judges. 4 In place of the human, discretionary element, the Guidelines wouldrely on a body of appointed experts to draw up rules covering every circumstance andcontingency. The ultimate aim was to create a nearly automatic process, a sentencing algorithmthat would require all judges to compute the same sentences in the same types of cases. 5IIIt is increasingly clear to practitioners at the federal criminal bar -and particularly to thejudges tasked with untangling this web for every convicted criminal- that the ambitious systemof sentencing automation has been a dismal failure. 6 No one familiar with contemporary federalcriminal practice will need reminding of the ponderousness and complexity of the Guidelinesthemselves. They take the form of a 258-box grid and 700 pages of accompanying commentary -nearly four pounds of documents to be use in determining every sentence. In light of the RubeGoldberg qualities of the Guidelines system, it is not surprising that there has developed, among“federal judges and other who work daily in the system,” the “pervasive concern that theCommission’s guidelines are producing fundamental and deleterious changes in the way federalcourts process criminal cases and federal judges use their time.” 7Even on their own terms, the Guidelines have failed. First of all, the Guidelines have noteliminated -indeed, they have arguably exacerbated- the problem of arbitrary disparities amongsentences imposed for similar offenses. For example, a drug dealer convicted of selling a givenquantity of LSD might receive anywhere from as few a 10 months to as many as 235 months -adisparity of nearly 19 years- depending upon whether he sold it in pure form, in gelatin capsules,on blotter paper or in sugar cubes. It is especially striking that members of racial and ethnicminorities continue to fare worse under the Guidelines than wealthier non-minorities do. Sincemembers of these groups are statistically more likely to be convicted of crimes involving4Marvin E. Frankel, Criminal Sentences: Law Without Order 5 (1972). See also Marvin E. Frankel, Lawlessness in Sentencing,and 41 U. CIN. L. REV. 1 (1972). Interestingly, the effort to reform sentencing began with a reform of the parole release system,which promised nothing less than to provide “a scientific and objective means of structuring and institutionalizing discretion.”William J. Genego, Peter D. Goldberg & Vicky C. Jackson, Project: Parole Release Decision-making and the SentencingProcess, 84 YALE L.J. 810, 823 (1975).5 Judge Frankel, in advocating the creation of an administrative agency of “prestige and credibility” to rationalize federalsentencing, imagined “the possibility of using computers as an aid toward orderly sentencing”. Frankel, Criminal Sentences: Lawwithout Order, supra notes, 4.6The Federal Courts Study Committee created by Act of Congress and appointed by the Chief Justice, consulted 82 percentof sitting federal judges and a broad cross-section of judges, defense counsel and probation officers about dysfunctions in thecurrent sentencing system, before recommending, in 1990, that the Guidelines be amended so as no longer to be rigidlymandatory and so as to allow consideration of an offender’s age and personal history. FCSC Report (April 2, 1990) (FCSCReport), at 137. The General Accounting Office of the U.S. Congress has noted that “central questions” of law and policy remainunanswered by the Commission’s work. Sentencing Guidelines: Central Questions Remain Unanswered, GAO/GGD 92-93(1992). Although the American Bar Association’s Criminal Justice Section purportedly supports having a SentencingCommission, it has called the present Guidelines a highly restrictive and mechanical process that unduly limits judicialdiscretion. ABA Criminal Justice Standards Committee, Sentencing Alternatives and Procedures (third ed.), adopted Feb. 9,1993, at 8. These bodies joined the growing chorus of judicial and academic critics of the Guidelines system. See, e.g., Albert W.Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901 (1991); Dale Parent, Didthe United States Sentencing Commission Miss?, 101 YALE L.J. 1773 (1992); M. Tonry, The Politics and Processes of SentencingCommissions, 37 CRIME & DELINQUENCY 307 (1991); Charlie E. Vernon, Restoring Probation, Parsimony and Purpose to theSentencing Reform Act, 5 Fed. Sentencing Rep. 217 (1993). In the words of U.S. District Judge Judith Keep of San Diego (nowChief Judge of the Southern District of California): [t]he federal sentencing guidelines are not working. According to thelegislative history, the goal of the guidelines was honesty, uniformity, and proportionality in sentencing... The guidelines arefailing miserably in achieving any of these goals. Most significantly ... guideline sentencing is contributing significantly to acriminal caseload crisis, which threatens to paralyze the district courts. FCSC Report, 141.7 FCSC Report, 135.