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

In all fairness, from what I have just stated, it is apparent that much of the criticism to whichthe Guidelines have been subjected is the fault not of the Guidelines or the SentencingCommission, but of additional Congressional straight jacketing of judicial discretion through theprovisions of later legislation, the principal effect of which has been the conversion of guidelinesinto mandates to sentencing judges. They also have exacerbated systemic problems that areindigenous to the prosecutorial function.Nevertheless, even accepting these faults, in my view, my learned colleague somewhatoverstates his case against the Guidelines. For example, although the Guidelines are complicatedand unquestionably could be simplified from their present 258-box grid and 700 pages ofcommentary, the need for simplification alone is not reason enough for their elimination if theymeet an otherwise valid societal function. Certainly a judicial body that on a day-to-day basisdeals with the labyrinthine Internal Revenue Code or the social security statutes, to name just afew statutes that qualify for such a description within the United States Code, should not beintimidated by the comparatively simpler Guidelines. We must remember that the federalcriminal statutes cover in excess of 800 crimes, as compared to the typical state system with 80or so separate crimes; and, thus, brevity in establishing a comprehensive sentencing scheme maynot be a virtue. I might also add that, in my experience, relatively few provisions of theGuidelines are involved in any single sentencing; thus, their total volume is of secondaryimportance. All this, of course, is not to say that there is no room for improvement; thereobviously is.I also find difficulty in supporting the proponent's critique of sentencing calculationsbecause they mystify the public. To me, the arithmetical approach to sentencing promoted by theGuidelines, which I will presently discuss and which requires specified explanation by thesentencing judge, should be more enlightening to the general public than the prior system inwhich no explanations were given as to the way or method of reaching the sentence imposed.Lastly, I am also somewhat at odds with Judge Cabranes’ auto-de-fe in recommending theappellate courts as the solution to the Sentencing Guidelines dilemma, as well as on his relianceon the English system as an example to be followed. Since my colleagues on the Court ofAppeals are not within hearing distance, I can say that the cure that he proposes may be worsethan the disease. First, I am always leery of transplanting the procedures and practices ofdifferent legal systems. Experience has shown that such transplants rarely work. As we know,history and environment are the determinative factors in promoting the creation and growth ofour legal institutions. The American federal appellate structure today is only a distant cousin ofits English counterpart. The existence of appropriate conditions for the procedures proposed inEngland does not necessarily augur their success in the United States. A factor to consider is thatin England, where about 60% of criminal appeals involve sentencing issues, such appellate reviewworks well because their appellate system is centralized in the hands of comparatively fewjudges with very similar interests, training and background. Furthermore, that system hasoperated for many years, so that appellate judges know how to give direction without rigidcompulsion. Although it can be argued that sentencing is just another area of the law whichAmerican appellate courts can handle as they do the balance of the law, the fact is that, in ourdecentralized federal system of appeals, it would take many years before a body of jurisprudencewas established which contained acceptable components of predictability, uniformity andproportionality. I doubt that the public would tolerate the relatively long hiatus necessary forsuch a development. Furthermore, such patience would have to be accompanied by concomitantlegislative self-restraint to allow appellate sentencing law to develop and stabilize, a frugality of4