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The Supreme Court’s recent decision in United States v. Booker and United States v. Fanfan striking down the 20-year-old federal sentencing guidelines reminded me of experiences I had traveling around the country in pre-guideline days, as a prosecutor for the U.S. Department of Justice. I saw first-hand the enormous disparity in sentencing between different jurisdictions and different judges that the guidelines were intended to control. However, I also saw the enormous differences between defendants and cases-some obvious, some less-that showed the value of judicial discretion. That was the dilemma faced by a deeply divided court in grappling with the guidelines. In one racketeering case, the judge imposed the maximum sentence allowed: 45 years. Yet in other courtrooms, I was involved in corruption cases where, if a number like 45 was ever used in sentencing, it would only be in weeks or months-not years. The sentencing disparities between regions, districts and even judges in the same courthouse were extreme and disturbing. Why should two people convicted for the same thing, under the same federal law and system, get wildly different sentences? The issue was a real one, and it was a key motivating factor behind Congress’ passage of the Sentencing Reform Act of 1984. The Federal Sentencing Guidelines, essentially, attempt to give numerical ratings to each defendant’s criminal conduct and past history, then use those two ratings to reach a fairly narrow range for sentencing. The idea was an admirable one, seeking to make the process more open and transparent, and improve fairness, consistency and rationality. The devil, as they say, was in the doing. The first problem was sheer complexity. There are hundreds of federal crimes, each with an enormous potential variety of facts, results and circumstances. To try to deal with them all, the guidelines grew into a massive, sometimes hopelessly complex morass. Sentencing was not transparent, and the process too often became a debate over regulatory interpretation, not over what was the right thing to do. Which leads to the next problem: judicial discretion. No amount of complexity in the guidelines could ever account for every circumstance and variation that a judge will confront. We go through a lengthy process to select federal judges precisely because we want them to have the wisdom and experience to exercise their discretion in an infinite and unpredictable range of situations. Under the guidelines, as one judge complained, “we’ve become bean-counters,” tallying up the score and announcing the result. This led to considerable tension between Congress, which politically has generally pushed to toughen sentences and limit discretion, and the judiciary, most of whom want greater flexibility to treat each case individually. The Supreme Court ultimately found the mandatory sentencing guidelines unconstitutional because they mandated substantial sentences without adequate process or protections. The court was then faced with several options, none of them good ones. On one extreme, it could simply throw out the guidelines. On the other extreme, various courts and lawyers had started to construct procedures by which uncharged facts could be charged, and juries could conduct second sentencing trials, if needed. Instead, the court chose a middle ground. It simply excised from the statute those portions that make the guidelines mandatory. The structure remains, but in an advisory role. The court noted that this may lead to some increases in disparity and other ills, but felt that, on balance, this was the best result. There will now be pressure on Congress to “get tough,” to find ways to try to make the guidelines mandatory again, or at least to punish those judges who stray too far, too often. But the court’s assessment of the difficulties and dangers of that road is correct. The disparity issue that the guidelines addressed is a real one. There will be judges who, set free from the guidelines’ restraints, will use their discretion to ignore them not just in unusual cases, but routinely. That’s unfortunate, and it is appropriate for Congress or the courts to walk the line between judicial independence and judicial accountability to try to find a way to address this problem. But the days of judicial “bean-counters” are gone, and good riddance. They are not the “free and independent judiciary” our Constitution envisions, and Congress must now resist the political winds pushing to bring them back. Dan Small is a partner in the Miami office of Philadelphia’s Duane Morris, specializing in complex litigation, white-collar criminal matters and witness preparation. He is also a former federal prosecutor and the author of several American Bar Association books, including Preparing Witnesses (2d ed. 2004).

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