The incredible shrinking judiciary.

The incredible shrinking judiciary.

The incredible shrinking judiciary.

The law, lawyers, and the court.
July 9 2004 3:57 PM

The Incredible Shrinking Judiciary

The federal bench starts to throw off its shackles.

Imagine you're a federal judge. Life used to be glamorous: the money, the women, the imposing work clothes. But in the past few years, the black robes have started to fray. You're sorely in need of a pay raise. And your job is getting downright dull. Thanks to sentencing guidelines and plea bargaining, you're finding you use your rubber stamp more often than your gavel.

Power that used to be in the hands of the judiciary—to try and sentence criminals—has been increasingly stripped away. First, Congress took all the discretion out of sentencing with a set of rigid rules known as the sentencing guidelines. Then, for their part, prosecutors have eliminated 96 percent of criminal trials through ever-increasing plea-bargaining rates. And the recent Supreme Court decision in Blakely v. Washington, striking down Washington state's sentencing guidelines, was partly premised on the notion that judges are less suited than juries for finding facts that form the basis of criminal sentences.

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At first blush it looks like judges are nothing more than empty robes. But the Blakely case stands for something else—a recognition that sentencing should happen in courtrooms as opposed to legislatures. The case was yet another blow to the creeping power of legislatures in sentencing decisions. And that's something for which judges—and the rest of us—can be grateful.

Judges have been conducting their own quiet (and not-so-quiet) protests against rising legislative control of their courtrooms. Last month, a federal judge in Massachusetts simply struck down the entire federal guideline system, and he did it in a style that would make Gilbert and Sullivan proud. The case— U.S. v. Green—was a 174-page manifesto masquerading as a judicial opinion. Among the opinion's more conventional sections were an imaginary dialogue between imaginary judges and a conspiracy theory about the "Orwellian" Justice Department and its addiction to plea bargaining. Judge William G. Young, the opinion's author, is no crackpot; he is the chief federal district judge in Massachusetts. But his outrage here is palpable. "[T]his Court—stripped of any meaningful role in the sentencing of offenders who come before it—can do little more than explain what's going on," he wrote.

The judges' first big gripe is with sentencing guidelines—the justice system's version of paint-by-numbers. At the sentencing hearing, the judge pulls out his or her laminated chart, on which the Y-axis ranks the severity of the crime and the X-axis indicates the defendant's number of prior convictions. Find where they cross, and presto, you've got a sentence. Doesn't leave much room for creativity. But then, that was precisely the point.

Sentencing guidelines were supposed to be legislatures' triumphant solution to discretionary, or "arbitrary," sentencing. When congressional leaders passed the federal version in 1984, they all but made the statue of blind justice pose with them in the pictures. The problem is that evenhanded justice is also ham-handed justice. Congress is right: Judges and juries can be racist, sexist, ageist, or speciesist. But the freedom that allows them to be erratic also gives them the opportunity to listen, be flexible, and to tailor punishments to fit the criminal, not just the crime. To the creators of the sentencing guidelines, a drug dealer is a drug dealer is a drug dealer, distinguished only by his number of prior convictions. But it takes eyes and ears to distinguish a kingpin from a recovering addict. Jurors—when they take off their Walkmans and eyeshades—actually do possess such appendages. Judges do, too, the occasional bench-nap notwithstanding. But the laminated chart doesn't see so well, and the results have been Draconian.

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The other factor that proponents of sentencing guidelines—particularly those proponents on the left—didn't understand was that judicial discretion, while sometimes capricious, also served as a check on legislatures, who tend to be punishment-happy. The more control Congress and state legislatures have exerted over sentences, the higher prison terms have crept. The number of adults in prison goes up about 4 percent a year, or three times as fast as population growth. It's not because of increasing crime rates: Crime has gone down for the last decade. It's because legislatures have decided that offenses must be punished with ever-increasing severity. Congress has every incentive for pushing sentences up, and none at all for driving them down. After all, no one gets elected by catering to the felon vote. The result is life sentences for stealing golf clubs.

Sentencing guidelines aren't the only factor in the erosion of judicial powers; more troubling still is the explosion of plea agreements. To a generation schooled on Law & Order (and I can tell you from experience, Jack McCoy is cited more frequently than Oliver Wendell Holmes in first-year law classes), it's axiomatic that most criminal cases result in table-pounding, time-consuming, theater-worthy trials. But that's wrong. Currently, less than 4 percent of federal cases go to trial, and that number has been shrinking, fast. As Judge Young wrote in Green, "the [Justice] Department is so addicted to plea bargaining to leverage its law enforcement resources to an overwhelming conviction rate that the focus of our entire criminal justice system has shifted far away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused citizen." Because 96 percent of cases plead out (meaning that the prosecutor and the defense lawyer come to an agreement on the charges and the recommended sentence), the judge's only role is to approve the plea, pound the gavel, and try to stifle a yawn.

Despite Big-Brothering from Congress, federal judges have increasingly been giving sentences that violate the federal sentencing guidelines. Federal judges depart from the sentencing guidelines on their own initiative in about 12 percent of cases, a figure that is up 300 percent from a decade ago. Almost all such variations are what are called "downward departures"—sentences lower than the guidelines would demand. This despite the fact that Congress allows judges to give lighter-than-recommended sentences only under extraordinary circumstances, and judges must provide written justification for such departures. The highest percentage of such downward departures are in drug and immigration cases, where sentencing guidelines have grown increasingly harsh in the past two decades. (For legal immigrants, convictions for offenses as minor as writing a forged check result in mandatory detention and deportation. And in drug cases, median sentences have increased 170 percent since the guidelines went into effect, so that simple possession of some drugs now carries a five-year mandatory minimum.)

The Supreme Court has become increasingly sympathetic to such judicial guerrilla tactics. The justices—who rarely speak off the bench about anything more controversial than a hangnail—have begun to speak up on the increasing problem of handcuffing the judiciary. Justice Anthony Kennedy called judges who defy the sentencing guidelines "courageous," telling a congressional subcommittee that such judges "are exercising the independence and the authority of the judiciary not to follow blindly unjust guidelines." Chief Justice William H. Rehnquist has issued similar rumblings (in his own, not-quite-comprehensible speaking style).

And with its recent decision in Blakely, the court indicated a desire to at least move sentencing back into the courtroom. The ruling calls into doubt not just the sentences of hundreds of thousands of prisoners around the country, but the entire structure of the federal sentencing system. From Blakely, it's only a hop, skip, and a Scalia smirk to the Supreme Court striking down the sentencing system entirely. In fact, a federal judge in Utah has already done so, in a ruling last week declaring that the federal sentencing guidelines are unconstitutional after Blakely. That case—or one like it—will reach the Supreme Court in a year or two.

The result won't be the Congressional power-tripping scheme we have now. Nor will it be a return to the old discretionary sentencing scheme, in which judges get the final say. Instead, when Congress and the court are done shooting each other down, the one man still standing—or actually, the 12 men still standing—will be the jury. Judicial control of the courtroom is dead, and Congressional control is foundering. The result will be an experiment in direct democracy more radical than any of Gray Davis' nightmares. The glamour days of the federal judiciary might be over, but jury duty is about to get a lot more interesting.