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

ench, as the Sentencing Commission struggles to incorporate or repudiate the exceptionsarticulated by individual judges or appellate courts. The result is clear: rather than eliminatingdiscretionary sentencing decisions, the Guidelines have reduced the comprehensibility of thosedecisions and the accountability of the decision markers.Finally and perhaps worst of all, the Guidelines and sentencing hearings generally arelargely incomprehensible to both victims and defendants- if not to lawyers and judgesthemselves. Nothing can be more disconcerting to a District Judge than to watch a defendant andhis family and members of the general public -and perhaps even the family of his victim- sittingin a courtroom, bewildered by an hour of intricate discussion between court and counsel overcomputations, additions, deductions, exclusions, inclusions, departures and non-departures.These arcane and mechanistic computations are intended to produce a form of scientificprecision, but in practice, they generate a dense fog of confusion that undermines the legitimacyof judges’ sentencing decisions.The Guidelines were designed to limit, if not eliminate, judges’ efforts to makeindividualized decisions reflecting the particular circumstances of individual cases. It should notsurprise us that they have substantially succeeded in doing so. Rather than relying on jurists toexercise Weston and judgment, we now merely ask them to perform an automaton’s function byapplying stark formulae set by a central power. Can this really be an improvement in the qualityof the justice we all administer?IIIIf we are to restore the legitimacy of the federal sentencing system in the eyes of both,criminal defendants and the general public, we must recognize that the Sentencing Guidelines arebased on a fundamental misconception about the administration of justice: the belief that justoutcomes can always be defined by a comprehensive code applicable to all persons andcircumstances, one that could be applied as easily by a computer as by a human being. We mustrecognize, in other words, that no system of rigid rules -no system devoid of discretion- can fullycapture all of our intuitions about what justice requires.The desire to achieve rational, technocratic solutions to human problems has deep roots inour intellectual traditions. The Enlightenment thinkers who inspired our nation’s founderspossessed an abiding faith in the power of reason and in their own power to explain the humanand physical world in terms of a finite number of fixed laws. Similarly, the legal positivism ofthe nineteenth century hoped to reduce all laws to a single comprehensive system of abstractrules. In our century, well-intentioned reformers have often proposed complex, centrallycontrolled regulatory regimes as a means of addressing many kinds of social ills. These thinkershave contributed much to the progress of our nation, producing incalculable benefits in science,technology, medicine, and, to be sure, the law. But our experience has also taught us thattechnocratic solutions often backfire, undermining the very purposes they were intended to serve.Yet we still cling to the illusions that have produced what Vaclav Havel has called the crisisof modern thought. We persist (as Havel has written) in the “proud belief that man, as thepinnacle of everything that exists, [is] capable of objectively describing, explaining andcontrolling everything… and of possessing the one and only truth about the world.” 12 If we areto learn, anything from the recent past, it should be the error of trying to govern human affairsthrough a single, centrally planned and scientifically prescribed model.12 Vaclav Havel, Address to the World Economic Forum, excerpted in NEW YORK TIMES (March 1, 1992).