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

5conduct which experience has shown to be singularly absent in Congress. Lastly, it must beremembered that appellate review in England partakes of procedures that are outside the scope ofsuch review as it is traditionally structured under the American federal system. Appellate courtsin England, for example, can take evidence including hearing witnesses, procedures which areforeign to our practice; and for which American appellate courts are structurally inhibited.In concluding, I would point to two areas that I believe have been somewhat understated bymy colleague and which militate strongly against the system of the Guidelines. The first of theseis the expanded use of "relevant conduct" under § 1B1.3 of the Guidelines pursuant to whichuncharged or unpleaded conduct is attributed to the defendant by the government and acceptedby the court for the purpose of enhancing the sentence. 7 The government's burden in establishingthis conduct is one of proof, by a preponderance of the evidence, which is obviously below theconstitutional standard that would be required if the case were tried on the merits. This practice,which existed to a limited extent prior to the establishment of the Sentencing Guidelines, is nowa fully accepted procedure to the point that in various circuits the government is even allowed touse the underlying conduct as to which a defendant has been acquitted for purposes ofenhancement of a sentence on a related charge in which a plea of guilty has been entered or determinedafter trial. 8 In my view, this is a particularly pernicious practice; but time constraintsprevent me from further elaborating on this point.The second and, to me, the most valid of all arguments against the Guidelines system is oneto which I have previously alluded and which has also been touched upon by my brother. I amreferring to the mechanistic approach to sentencing created by the Guidelines scheme in whichthe judge is relieved of much of the decisional burden and in which the moral onus is in largepart transferred to an impersonal bureaucratic calculation. It is undoubtedly a lot easier for thetrial judge to sentence under this system. It is like painting by numbers. That facility and detachmentin passing sentence, however, are precisely what I find most objectionable. Sentencingshould be anything but easy for the trial judge. Deciding upon an appropriate sentence should bea most difficult decision – it should be one over which the judge will long ponder not only at thetime of its rendition, but thereafter. Any judge worth his or her salt should always have a doubtas to whether that most important of judicial functions, sentencing, has been properly carried out.In my view, the Guidelines' sentencing by rote downgrades our system of justice because itliberates judges from an encumbrance, which should be the essence of this awesome power.I thus come to the close of my response to José Cabranes' presentation, one in which I amsure you will all agree, he has reaffirmed his well-earned reputation as a scholar of the highestdegree of excellence which fully credits his rightful place in this Academy. The problems rose bythe subject of tonight's discourse, which, as I have stated, are as old as society, may very wellresist perfect resolution. We cannot, however, rest in our endeavor to find enlightened relief fromman's inhumanity to man.7 United States Sentencing Commission Guidelines Manual, §1B1.3 (Nov. 1992).8 United States v. Mocciola, 891 F.2 nd 13, 15-17 (1 st Cir. 1989); United States v. Brady, 928 F. 2 nd 844, 851-52 (9 th Cir. 1991).