A Reasonably Just System:
The Ethics of Federal Sentencing Variation Across Circuits
A Project Sponsored by the Colgate University
Institute for Philosophy, Politics, and Economics,
Lampert Endowment
Taylor Lake
2012
Table of Contents
I. Introduction…………………………………………………………………………………………….............3
II. Background…...…………………………………………………………………………………………………5
III. Philosophical concerns…...………………………………………………..……………………………..8
IV. Potential Considerations……………………………………………………………………………..…14
V. Implications……………….…………………………………………………..………………………………26
VI. Appendices……………………………………………………………………………..…………………….
I. Introduction
Laws developed by the federal government are supposed to apply uniformly
to all U.S. citizens. It would follow, then, that the enforcement and sentencing
stemming from these laws would be fairly uniform across regions, years, and crime
type. This paper aims to discover whether or not there is statistically significant
variation across different types of sentencing and, if such variation exists, if it can be
ethically defended. A corollary goal of the paper is to determine the role of federally
established sentencing guidelines, and assess their effectiveness. After examining
the sentencing variation and relevant ethical arguments, I will consider if the
sentencing guidelines should be adjusted to create a more defensible system, or
should be left as they are.
In order to assess if sentencing variation is ethically defensible, I will
consider different philosophical concerns and arguments. After engaging
philosophical and academic works that discuss sentencing and justice, I will develop
a systematic method of evaluating the sentencing variation. This methodology will
take into account both legal and ethical concerns that are relevant to the purpose of
a criminal sentence and the U.S. legal system.
To better understand the possible considerations that take part in the
development of a sentence, interviews were conducted with six federal judges.
These judges were selected from the six federal circuits that showed the greatest
variation from the national mean, when comparing the length of criminal sentence
for all crime types. These interviews provided insight that expanded the possible
causes and implications of sentencing variation beyond what could be found from a
philosophical or academic viewpoint. The judges were able to verbalize the real
world practice of developing a sentence and how the federal sentencing guidelines
interact with other factors a judge might consider in sentencing.
While the paper will consider possible causes of sentencing variation and
subsequent implications, the paper will not endeavor to identify a specific cause of
the variation. The wide range of crime type and severity makes it unfeasible to
makes claims of causation, but the paper will consider possible causes of variation
and their moral standing. The paper will also measure the role of equality in
sentencing, and whether or not it has any individual moral force.
II. Background
Public and Congressional interest and research in sentencing disparities,
punishment and crime culminated in a decision to actively work towards uniformity
and consistency in sentencing. Congress resolved to ensure sentencing decisions
would be more “structured,” that punishment for a given crime would be “more
certain,” and some crimes could be “targeted for more serious penalties.”1 The
Sentencing Reform Act of 1984 resulted in the creation of the United States
Sentencing Commission (USSC), which was developed in order to help achieve
structure and consistency. The Commission created the Sentencing Guidelines as a
way to ensure all federal judges subscribed to a uniform system. The Guidelines are
meant to:
incorporate the purposes of sentencing; provide certainty and fairness in
meeting the purposes of sentencing by avoiding unwarranted disparity
among offenders with similar characteristics convicted of similar criminal
conduct, while permitting sufficient judicial flexibility to take into account
relevant aggravating and mitigating factors; reflect, to the extent practicable,
advancement in the knowledge of human behavior as it relates to the
criminal justice process.2
When the guidelines were first established in 1987, they were rigid and
prescriptive in an attempt to end sentencing inequalities and make the punishment
attached to a crime more clear. Judges were allowed a range of sentence length, but
were generally unable to leave that range. In 2005, however, the U.S. Supreme Court
1
2
“An Overview”
“About the Commissioners.”
came to a significant conclusion. In the case United States v. Booker, the Supreme
Court determined that the sentencing guidelines could not be mandatory. The Court
did include, though, that “district courts, while not bound to apply the Guidelines,
must consult those Guidelines and take them into account when sentencing.”3 NE—
review by Court of Appeals, etc. Currently, the guidelines are an important part of
the sentencing process but not compulsory. The guidelines provide a range of time
for each crime, including shifts in the range for both the severity of a specific crime
and the criminal history of the defendant. For any crime, there is a chart that
provides different points of intersection between the severity of the crime and the
history, giving the judges some idea as to where an appropriate sentence should fall.
One example of sentencing variation is by region. Some circuits continually
fall significantly above or below the national average for all crimes. Included in the
appendix are records of the six circuits with the most significant variation from the
national mean. The data represent the average sentence length, in months, for all
federal crimes in a given year, compared to the national sentence for all federal
crimes. The data begin in 1995, which is the year the USSC began collecting and
reporting sentencing information. The graphs below have eliminated data from
2004, as a Supreme Court decision left the data fragmented in such a way that it
could not be averaged, and the data from 2005 were collected following Booker. A
two sample t-test was used to compare the means of the three circuits with the
highest trends against the three circuits against the lowest. Comparing the three
3
Ibid.
highest circuits against the three lowest also showed that there is significant
variation in sentence length between circuits.
III. Philosophical Criteria
The task ahead, then, is to determine factors that can play into a sentencing
decision and whether or not their use is defensible. While we cannot determine the
cause of the variation, it is fruitful to identify which considerations, if they were to
contribute to the sentencing disparity, would be deemed morally permissible and
which should be eradicated. To develop criteria to assess the moral implications of
possible causes, I will engage literature from philosophers, scholars, and professors.
After developing criteria of permissibility, I will use information collected from
interviews with federal judges to consider possible causes and their relation to the
philosophical standards.
One philosophical consideration is that sentencing decisions ought to include
all morally relevant features. This criterion is closely tied to the concept of equality,
since a consideration of relevant features is required to appropriately apply equality.
Establishing the inclusion of such features as a separate criterion is important,
however, because it ensures that defendants are not erroneously grouped based on
too few considerations. An example might be a situation where two criminals,
identical in crime and level of responsibility, have different criminal histories. Even
if a judge takes into account all other morally relevant features, it would be
impermissible to exclude criminal history. While criminal history is included in the
sentencing guidelines, this philosophical consideration ensures that considerations
that are not in the guidelines are still considered if they are pertinent to a given case.
In their interviews, judges identified a few examples that are relevant to a
sentencing decision, but are not explicitly included in the guidelines. Remorse or
willingness to accept responsibility, for example, ought to be considered in a
sentencing decision. If one criminal shows remorse for their crime and another does
not, it would be impermissible to give them the same sentence, since their level of
remorse is relevant to the type and length of sentence they receive. Even though it
could be argued that two criminals have been treated equally based on only morally
relevant features, this second criterion ensures they would be treated equally based
on all morally relevant features.
The second, and more difficult, philosophical consideration is equality.
American rhetoric stresses the importance of equality and steeling against the
possibility of discrimination. The Fifth Amendment states that citizens will not be
“deprived of life, liberty, or property, without due process of law…” This protection
is meant to ensure that the government will not act “arbitrarily and capriciously, but
must act fairly according to established rules.”4 The Fourteenth Amendment also
provides an important shield against discrimination and arbitrary decisions in the
Equal Protection Clause. It affirms that a state cannot “deny to any person within its
jurisdiction the equal protection of the laws.” This clause ensures that any right
granted to citizens will be applied fairly and equally. Does this mean that the
variation can already be deemed morally indefensible because it has violated our
basic protection? Not necessarily, and it is because of the ambiguity of the term
“equality.”
4
Monk, 170.
In The Empty Idea of Equality, Peter Westen argues that if “equality”
means that likes should be treated alike then the term equality is a hollow concept,
as it requires some outside intervention in order to determine what makes one
group of people “like” another in a meaningful way.5 We can say that what
constitutes a group of “like” people are that they should be treated alike, but this
gives out no standard of how those groups should be formed. He argues that this
ambiguity means that use of the word “equal”, or employing the idea that likes
should be treated alike, does not provide any substantial guidance on how people
should be treated. Likes should be treated alike, but does that mean if we are cruel
to one member of a group, we should be cruel to the others in order to be equal? If
we rely solely on the concept of equality, then the answer is yes. It seems, however,
that Westen thinks there needs to be substantial guidance beyond the tautological
notion of equality.
Kent Greenawalt responds to Westen, arguing that the idea of equality can,
in fact, play a substantial role in “ethical choice.”6 He acknowledges equality’s
“formal principle,” the kind Westen discussed.. He also clarifies a statement that
Westen refers to frequently: that likes should be treated alike. Greenawalt suggests
that an application of the term equality implies more than that: “’equals’ are persons
who differ in no relevant respect in regard to the sort of treatment they should
receive.”7 Greenawalt argues further, however, that “equality” also has substantive
principles. He provides an example of parents trying to decide whether to give one,
Westen, 557.
Greenawalt, 2.
7 Greenawalt, 3.
5
6
or both, of their children music lessons. They acknowledge that one child would
benefit more from the lessons but decide that, to avoid anger, they will either offer
lessons to both children, or neither. Greenawalt argues that is an example of the
substantive force of equality, which can take many forms depending on the situation.
In this case, equality has instructed the parents should be treated equally in terms of
benefit. This instruction is a positive equality, indicating who should be treated
equally and in what capacity. Equality can also be applied in a way that establishes
exclusions, as opposed to inclusions.8 In this way, it can be decided what will not be
considered in decisions of equality, such as race or gender. Such considerations,
Greenawalt argues, indicate that “equality” has a substantive force in questions of
treatment.
In Speaking of Equality, Westen responds to Greenawalt’s assertion that
equality has substantive moral force. Westen argues that there are cases where a
judge might intentionally sentence two defendants unequally. In a case where two
criminals are equally guilty, but the judge feels its only necessary to sentence one
defendant harshly in order to fulfill the purpose of a sentence (detterence,
punishment, etc.), then the judge could sentence the two defendants differently.9 I
would argue, however, that it may be the case that the judge could sentence the
defendants unequally, it does not mean equality has no substantive force. In fact, it
would seem wrong that the judge would sentence them unequally because he
believes one harsh sentence will be sufficient for deterrence. If the defendants are
8
9
Greenawalt, 13.
Westen, 245.
equally culpable, they ought to be sentenced equally since they are, by definition,
alike in a morally relevant way.
Another way to consider the substantive force of equality is to consider
two criminals who have committed the same crime and are the same in all relevant
considerations. If a judge could sentence one to ten years in prison and the other to
five years and still achieve the stated purpose of sentencing, is it ethically
permissible? On Westen’s view, it would seem that the answer would be yes. We
could reasonably eliminate the word “equal” from the phrase “equal justice under
the law.” In this situation, he might argue that the important point to consider is
whether or not justice has been served, and equality serves as a hollow concept. It
appears, however, that something is lost when we remove the word “equal” and
sentence the two identical criminals unequally. When the two criminals are
determined to be likes in every morally relevant way, it is necessary that they be
sentenced accordingly. Even if the judge could achieve deterrence or recompense by
only giving one criminal ten years, the unequal sentencing disrupts our expectations
of the legal system and our understanding of sentencing. Equality in sentencing does
not serve only serve as a superfluous word, but a concept with moral force. Equality
informs us that likes ought to be treated alike because they are moral equals. If the
second criminal received a sentence of five years, it seems as though he is getting
away with something. In this sense, equality functions as an objective moral
measurement. Rather than develop sentences by considering whether or not
deterrence has been established from a previous sentence, equality demands that
each case be considered individually and compared the moral standards that have
been established with respect to a given crime. Equality does, then, have a
significant moral role in sentencing. Those who are alike ought to be sentenced alike,
as that tenant is a substantial part of our legal system.
The sentencing variation does not inherently contravene concerns of
equality, because there may be considerations that divide citizens into groups that
can be treated differently from one another. For example, it may be permissible to
treat two criminals who have committed the same crime differently if they have
different criminal histories. But is this not reflected in the guidelines? If this is the
case, then a judge would best respect equality by “[trying] to be consistent with
people who are generally situated in a similar way.”10 Equality need not be applied
as general rule, that all citizens be treated in exactly the same way. The concept of
equality allows for an interpretation of morally relevant features and how different
people should be grouped and sentenced. This philosophical criterion will be
applied to different considerations in a sentencing decision and assess whether or
not equality, in a morally relevant sense, has been fulfilled.
10
Interview, Judge 2
IV. Possible Causes
To determine if the sentencing variation is permissible, I will consider
possible causes of the variation and how they relate to the two philosophical
standards developed above. If the cause of the variation is indefensible by the
philosophical, the variation itself is also indefensible. In cases where not all morally
relevant features are considered or there is a lack of consideration for equality, then
the variation has violated an important ethical concern. The potential factors that a
judge might consider can be divided into two initial groups, those covered in the
federal sentencing guidelines and judicial attitude.. Some things that might impact a
sentencing are attitudinal insofar as they reflect a judge’s personal jurisprudence.
Federal guidelines factors are sources a judge might consider when determining a
sentence, such as legal texts or guidelines. As they are most tangible and clear cut, I
will first survey possible external considerations that a judge might use in making a
sentencing decision.
A few external factors can be discounted for consideration, as
Congress has deemed them discriminatory. There may be exceptions where these
factors do become pertinent in sentencing, but in general application these factors
would be considered unfair. If a judge were more lenient or harsh on defendants
because of their race, the inclusion of that consideration would be impermissible.
The race of the defendant does not in any way mitigate or alleviate the crime, and
should not play a role in a sentencing decision. Similarly, gender, income, political
affiliation, and religion should not play a role in sentencing decisions. If it is the case
that the variation in sentencing is a result of judges considering these kinds of
factors, the differences would be completely indefensible. These concerns have no
bearing on the moral weight of an action: a murder carries the same weight whether
it is committed by a man or woman, by a poor man or a rich man. Judges should
avoid considering these factors, but there are other things that they can and do take
into account. It is important to consider them and whether or not they are
permissible to use in sentencing.
The most evidently cited factor is ‘past law’. This term is meant to
encompass statutes, past precedents and decisions, and anything that can follow
from those sources. This rationale involves no internal involvement, as a judge
citing this line of thinking only has to refer to past decisions or their logical
consequences. This allows a judge to excuse himself from the decision making
process and assert the decision is entirely determined by law or rules. Richard
Posner writes “the [cited] rule might have to be extracted from a statute or a
constitutional provision, but the legalist model comes complete with a set of rules of
interpretation, so that interpretation too becomes a rule-bound activity, purging
judicial discretion.”11 When this method works, it allows judges to easily determine
what the appropriate course of actions is and needs no further consideration.
If this method were used, judges could essentially develop sentences through
the use of a formula. Everyone would be sentenced the same length of time for the
same crimes, therefore the only things to consider when determining a sentence
would be the crime and what the law dictates as an appropriate sentence for the
11
Posner, 41.
crime. Could this tactic hold up for judges who have to practically apply these
methods? For many reasons, it cannot. As Cardozo writes, “no system of living law
can be evolved in such a process, and no judge of a high court, worthy of his office,
views the function of his place so narrowly.”12 Sentencing is not quite so clear cut,
for a variety of reasons. Such prescriptive decision-making does not work given the
current state of the sentencing guidelines, as they only suggest a range of time that is
appropriate for a given crime. Judges simply do not have the resources to make a
decision that is entirely reliant on past law or prescriptive guidelines. Even if a long
chain of citations was formed so that each judge need only refer back to a similar
case, the initial decision to start the process would require discretion and
consideration that could not rely on past precedent.
There are benefits, however, of using past law in conjunction with other
considerations. One benefit is the development of uniformity or reasonable
expectation in the legal system. These kinds of sources are stable, generally reliable,
and a strong reference source in complex cases. They allow all involved parties to
move relatively smoothly through the legal process, because they have an
expectation of how it will work. It is important to rely on them because “disruptions
of those [expectations] are unsatisfactory for everyone.”13 On this point,
philosophers and judges agreed that a uniform method of execution is beneficial to
all those involved in the process. Rawls writes that “[a] person taking part in an
institution knows what the rules demand of him and of the others. He also knows
12
13
Cardozo, 4.
Interview, Judge 4.
that the others know this and that they know that he knows this, and so on.”14 Using
these resources meets philosophical concerns of function and equality, and also
provided judges with a clear view of how to handle a case and sentencing. Every
judge interviewed agreed that this step is the primary and most important
consideration in a decision. It is the standard all judges must work within, and
provides a framework that makes the system functional and coherent.
With respect to the philosophical criteria developed earlier, sentencing
decisions based on past law are permissible on two counts. They apply equally to all
people, so no subgroups of “like” people need to be developed. Using past law in a
sentencing decision also works toward fulfilling the purpose of a sentence, since
such considerations take into account successful past cases and governmentdeveloped standards. Past law does not, however, take into account all morally
relevant features. Any consideration that falls outside past law would not be
considered, which could result in inappropriate sentences. If used exclusively, past
law as a cause of sentencing differences would be impermissible. It is possible,
however, to use past law in conjunction with other considerations to ensure all
morally relevant features are considered.
Other considerations are explicitly included within the federal sentencing
guildes. The guidelines include factors such as severity of a crime, criminal history,
the amount of damage resulting from a crime and physical endangerment. It is
permissible for a judge to consider these factors because they have been deemed
relevant and important by the federal government, but they also respect concerns
14
Rawls, 48.
for equality without necessarily excluding other relevant features. In the case of
criminal history, here is evidence that recidivism rates are strongly tied to past
arrests so it is reasonable to conclude that someone who has committed a crime in
the past is more likely to reoffend than someone who has not.15 To ensure the
minimal functioning of society, it is permissible to consider criminal history and
sentence accordingly. Including this allows judges to ensure that they are keeping
habitual criminals out of the community and meeting the duty of a sentence.When
considering the severity of a crime, there is a range of severity that can impact a
judge’s sentence. Including this factor is permissible for the same reason, it is an
indicator of the type of criminal the defendant is and also provides punishment in
accordance with the immorality of the crime.
An extension of the severity of a crime is the consequences it inflicts on other
people. For example, the recommended sentence for a theft may be one to two years,
while the range for a sexual assault might be 12 to 15 years. A judge might be
harsher in the latter case, with “the idea being that the long term consequences tend
to be more significant.”16 It is acceptable to take this into account because it again
reflects on the nature of the crime. A direct infliction of damage on another person
may cause more lasting or harmful consequences than a case where the damages
are separated from a victim, and it is appropriate to sentence in accordance with
these damages. In some cases, it is easy for a judge to determine what kind of
damage has been done, as victims are permitted to make impact statements in court.
15
16
“Recidivism.” National Institute for Justice.
Interview, Judge 4
This allows a judge to hear consequences that may not have been brought up in the
course of a trial, and can be considered before sentencing.
Judges could also consider the behavior and attitude of a defendant in
determining what would make an appropriate sentence. They might consider if the
defendant is at a point of “accepting a point of responsibility,” and try to gauge their
“degree of intractability to treatment.”17 They suggested that after years of
experience, it is generally the case that these two things are strong indicators of
whether or not a defendant will reoffend. If a defendant is unwilling to acknowledge
they have done something wrong or is resistant to other forms of sentencing, such
as rehabilitation in cases of drug abuse, these are signs that a lengthier sentence will
be necessary to “convince them that their behavior is unacceptable.”18
Provided these considerations are administered equally, meaning they are
applied when relevant, then they are permissible to use. If it is the case that the
variation exists because some circuits have a higher rate of criminals with an
extensive record, or a trend of crimes that are particularly brutal, then the variation
is defendable. In the same vein, if a circuit has particularly low sentencing averages
because many criminals are first time offenders, then it would also be defensible.
These factors are relevant to the moral weight of the crime and can be applied
equally.
Attitudinal considerations include features that are not quantifiable. One of
these factors that impact a sentence is the life experience of a judge, or what one
17
18
Interview, Judge 5
Interview, Judge 3
judge referred to as a “prism.”19 Every judge comes to his job with different life
experiences that shape the way he views crime, justice, equality and sentencing.
These experiences also impact the way he approaches the external factors above, so
it is important to consider to what extent they should be included, and whether or
not they have a bearing on the variation.
Some dispositional factors are beyond the control of the individual judge.
Even in cases where the facts are clear, a judge is still required to employ their own
“brain power, logic, [and] sorting mechanism.”20 Most judges noted that these kinds
of skills become sharper as they become familiar with the job and gain more
experience. While there is going to be inevitable variation in not only the way judges
sort through problems, but also their skill level, any cases of extreme lacking would
be impermissible. If a judge is incapable of teasing out the relevant facts and past
precedent, it may result in unfair sentencing for defendants. If this were the force
behind the variation, it would be impermissible because sentencing would not be
applied equally. Defendants who were sentenced by a less than capable judge could
incur an unfair sentence, while other defendants are appropriately sentenced.
There are bound to be differences between judges’ logic or approach, and it
is tolerable when it does not interfere with the application of laws equally and fairly.
Provided a judge is able to understand the law and recommended guidelines, it is
reasonable to use his own sense in working out issues that may be unclear. Judges
need to make a personal assessment and ask themselves, “does this make sense, are
19
20
Interview, Judge 6
Interview, Judge 1
there inconsistencies?”21 While there is no denying the fact that these decisions
require a certain amount of personal discretion, it is fair to expect that they will be
executed at a level that ensures defendants are being treated in accordance with the
law.
Another factor that impacts a judge’s sentencing decisions are his personal
experiences. To some extent, these are helpful in ensuring sentences are equitable
and just. Judges are appointed because they have studied the law and, in most cases,
practiced law for many years. These experiences help a judge determine sentence
length in accordance with past cases and legal expectation. On the other hand,
personal experiences can skew the outlook of a judge and possibly the way he
approaches cases. Personal experiences can engender biases or unfair associations.
For example, if a judge was the victim of theft, he might sentence similar cases more
harshly because they feel a personal connection to the crime. These experiences
may work in the opposite way, if a judge feels some personal sympathy for a
defendant, resulting in a more lenient sentence. In these cases, it is the
responsibility of the judge to determine when his experience is relevant and when it
is not. After reflecting on his experiences, he needs to “factor it out if it is not
appropriate.”22
The parties that a judge is working with might also bring up biases, and a
judge is equally responsible for tracking how they impact a sentencing decision.
Making judgments about people we encounter is something judges have to “be
21
22
Interview, Judge 6
Interview, Judge 1
conscious [of] because it is something that people do in their everyday lives.”23 To
some extent, it is appropriate to use these opinions because they can play an
important role in a judge’s decision. In cases of assessing credibility, for example, a
judge needs to be able to evaluate whether or not someone is being truthful. In cases
where the evidence is unclear or inconclusive, this may rely solely on the personal
assessment of the judge or jury. A judge might consider the “demeanor [of the
witness or defendant] when testifying.”24 Even in these cases, however, a judge still
needs to be certain that they rely principally on the tangible facts of the case and the
defendant. An example where this is particularly important are cases of cultural
differences. We generally think that a lack of eye contact indicates someone is lying,
but in some cultures it is a sign of respect or deference. If a judge failed to
understand these kinds of nuances, it would be impermissible for them to apply
personal judgments that are uninformed.
Even though making personal judgments can be useful, judges need to be
vigilant to ensure they are not unfairly judging someone. It is necessary to “filter out
those specific traits and characteristics” that do not have any bearing on the case or
crime. A judge should not consider, for example, whether or not a defendant has
tattoos, seems disheveled in court, or has some other personal trait that reflects
poorly on them. In order to ensure they are not using their personal experience
beyond its limits, one judge noted that they always think, “I am leaning towards this
decision or that decision, are those [characteristics] influencing me?”25
Ibid.
Interview, Judge 6
25 Interview, Judge 1
23
24
One account highlights some of the troubles of personal or attitudinal
considerations, that they are not uniform between judges, and can seriously impact
the outcome of a trial. A judge provided a report where he was in conversation with
other judges who varied in age and experience as a federal judge. The judge posed a
situation to a group, where they were hearing a case in which the defendant chose
not to employ an attorney and represent himself. The defendant has no legal
training and fails to file important paperwork because they were unaware of the
requirements. In this situation, the judge asked his peers whether they would allow
this defendant extra time, or hold them accountable for their error. The judge
explained that older judges said they would allow the defendant more time, or find a
loophole to give them time, whereas the younger judges said they would hold the
defendant accountable.
This kind of impact can come into play even when
attorneys are involved, since a judge can rectify a situation he thinks is unfair by
finding different “ways to look at [a case] and perhaps give different emphasis to
different facts.”26 This seems well intentioned, an attempt to provide justice and a
fair outcome for a defendant. This is a situation, though, that is impermissible
because it works against both our consideration for morality of duty and equality.
On the one hand, it undermines the idea that certain standards have been
established in order to ensure society functions well. It also challenges the judge’s
role as a neutral party who does not act an advocate for the defendant or plaintiff.
With respect to equality, it means that certain defendants are given more leeway
because a judge feels they are not well represented. In cases where this is true,
26
Judge 6
although regrettable, it is outside the jurisdiction of the judge to try and rectify the
situation. In order to ensure the legal system runs according to expectation and
moral duty, it is imperative that the judges uphold the standards laid out to them,
even if they want to personally help a defendant.
With the exception of the case mentioned above, these attitudinal factors
create an interesting problem in determining whether or not they would be
defendable if they were the source of variation. Other factors we have considered,
most of the external ones, were either permissible or impermissible in both
individual cases and overall trends. The dispositional factors, however, seem less
clear-cut. To some extent, it is absolutely necessary that we acknowledge judges are
people. They are not above experience, bias, logical flaws and human error. As
pointed out previously, however, there are cases where the law demands that a
judge use their personal judgment because there is no alternative. On an individual
basis, this seems acceptable. A judge uses his own experience, from the bench or
personally, to assess whether or not a person is lying, whether or not a defendant
truly feels remorse for their crime. But when applied to a large scale trend, where an
entire circuit has a sentencing average that is higher or lower than the national
average, it is difficult to imagine this may be the result of the personal discretion of
the judges. What can account for this discrepancy, which did not occur with the
external factors?
Just as there is variation amongst judges, it is certainly the case that there is
variation amongst defendants. Some people will realize that their actions were
wrong and show remorse for their crime. Some will lie on the stand while others
will be forthcoming. It seems unlikely that within an entire circuit, the majority of
defendants will fit into one of these categories so clearly that it would skew the
average sentence. If most defendants do not, in fact, fit into one of these groups then
it falls on the shoulders of the judges. As a group, the trend would be their
responsibility, suggesting they are notably more strict or lenient than other circuits.
This is disconcerting because it defies our definition of equality, that morally
relevant likes should be treated alike. If it is the case that certain groups of judges
always judge more severely or lightly than the norm, they are not doing so because
of morally relevant factors.
To a group of judges who always sentence a certain way, none of the external
factors or personal considerations would matter because they would be acting as a
result of individual tendencies rather than considerations that are significant in the
case. If criminal history is deemed relevant, a judge who is consistently lenient will
decide on a more lenient sentence for someone, despite their history. If the range
for someone with one past conviction were ten to twelve months, a judge in this
situation would sentence on the low side. If someone has multiple convictions and a
higher range, they would still sentence on the more lenient end because that is their
general trend. If a judge, or group of judges, only considered their personal tendency
in a sentencing decision, they would fail to consider all morally relevant factors. It
would be completely unacceptable and indefensible if these kinds of personal trends
were behind the sentencing variation.
V. Implications
Where does this assessment of attitudinal and guideline factors leave us with
respect to the variation? It seems that many guideline and legal factors, when
applied appropriately, are justifiable if they are behind the disparity, while the
attitudinal factors are not. Does this mean it would be best to return to mandatory
sentencing to ensure a judge’s personal discretion cannot unfairly influence a
sentence? Before drawing any conclusion, I would like to briefly review the criteria
established for assessing the potential considerations. One is that they respect
equality, where morally relevant groups should be treated alike. A second is that all
morally relevant features, insofar as it has some bearing on the case, crime, or
purpose of sentencing, be considered.
These criteria are borne of philosophical discussions of law, equality and
what is morally relevant or irrelevant. They do not necessarily take into account the
day-to-day demands of actually working in the federal court system. Just as we
might say that it is morally desirable to eat right and exercise because it serves to
benefit both individuals and the community, is it feasible to expect all people to
follow this prescription? Certainly, the stakes in the federal court system are much
higher, as the decisions of judges have more far reaching implications. It is still
important to realize that it may not be the case that subscribing strictly to the
philosophical ideal will actually produce the most judicious outcome.
Would an attempt to eliminate personal discretion address these concerns?
Mandatory sentencing guidelines would meet some requirements, but fail on others.
They would, in theory, meet the needs of moral duty, as it would establish the
appropriate punishment for a crime to promote good behavior and deter others
from committing a crime. As the suggestive guidelines do now, it would take into
account only morally relevant factors, including the severity of the crime and the
criminal history of the defendant.
Interestingly, it seems that it would fail with respect to equality. If factors like
the consequences of a crime, remorse, and credibility were morally relevant, they
would be ignored by mandatory sentences. While it may be easier to create a sliding
scale for criminal history or severity of a crime because they are quantifiable, but it
would not be possible with considerations like remorse or consequences. There
would be no way to measure how sorry someone was or how much damage a victim
had suffered, or, if a sentencing scale were developed, it would be very easy to
manipulate the system. Despite its potential downside, if we want to fulfill the
philosophical ideal of equality, it is necessary to continue to allow some amount of
personal discretion in sentencing decisions. It may be only way to ensure that
morally relevant factors are considered in a sentence.
In light of the philosophical expectations set out for judges with respect to
sentencing, and their own accounts of sentencing, it seems the ideological gap
between the two is not terribly disparate. The judges keep the ideals in mind while
using their personal discretion and knowledge to achieve what, they believe in good
faith, to be the most prudent process and sentence. As shown before, to eliminate
the role of a interpretive figure in the process of sentence would bring about far
more difficulties than are potentially at risk by including them. Cardozo points out
that “their must, indeed, by subject to constant testing and retesting, revision and
readjustment; but if they act with conscience and intelligence, they ought to attain in
their conclusions a fair average of truth and wisdom.”27 Given the host of morally
permissible factors that may be the cause of sentencing disparities, it would be
premature and unfavorable to limit the personal discretion of judges. If they are
held in conjunction with philosophical ideals, as many judges expressed, they will
likely arrive at a sentence that is both in keeping with important philosophical
criteria and considers any morally relevant factors. As it stands, we have a
reasonably just system of sentencing. The current guidelines, combined with judges’
discretion, strive for the most appropriate sentence in each case by including both
quantitative and qualitative factors.
27
Cardozo, 34.