Judges in Turmoil

Making the sentence fit the crime was for so long the province of judges that many jurists, both at the state and the federal level, have difficulty reconciling themselves to legislative restrictions on their sentencing discretion. Their frustration was manifested again when the judges of the U.S. District Court in Los Angeles--sitting en banc , or as a group--struck down a sweeping new package of regulations, established by the U.S. Sentencing Commission, that prescribes very narrow sentencing ranges for specific crimes.

As a matter of policy, we believe that judges should have the broadest possible discretion so that, in each case, the sentence can be tailored to suit the individual criminal. No mechanical sentencing system, no matter how closely it calculates mitigating and aggravating circumstances, can ever be a completely satisfactory substitute for an experienced jurist who has seen defendants come and go, who knows which sentences work and which do not, who can bring both compassion and skepticism to bear. Mandatory sentences, much loved by law-and-order prosecutors who blame crime on soft-hearted judges, seem to have filled the prisons of this nation to overflowing without making citizens feel any safer on the streets.

Yet, having said all that, we find the en banc majority opinion, written by Senior District Judge A. Andrew Hauk and supported by 13 other judges, unpersuasive. In ruling that the Sentencing Commission’s regulations violate both defendants’ Fifth Amendment rights to due process of law and the separation-of-powers doctrine of the U.S. Constitution, the judges in the majority merely applied a constitutional gloss to their own personal beliefs. Ten judges dissented.


The majority’s judgment that the service of three federal judges on the commission that drew up the sentencing guidelines unconstitutionally expanded the authority of the judicial branch seems far-fetched; what really bothers the judges is that the sentencing rules diminish their authority. There is very little precedent for the majority’s due-process holding, either; it may be wiser to individualize each person’s sentence, but a long chain of cases makes it clear that if Congress wanted to do so, it could go beyond the sentencing guidelines, strip judges of all discretion and prescribe mandatory sentences without violating the Fifth Amendment.

Hauk in particular seems to chafe at any constraints, as he made clear last week when he ordered a convicted cocaine dealer to serve a year in prison, in defiance of a 1984 law mandating a five-year minimum sentence for anyone found dealing in large quantities of cocaine. Hauk called minimum mandatory sentences “barbaric . . . a return to the 5th Century.” He may be right as far as history is concerned, but he is wrong on the law; the 9th U.S. Circuit Court of Appeals already has upheld the mandatory minimum laws.

Because the judges here took the unusual step of ruling en banc , they have spared the district court the chaos that has engulfed other federal courts, where conflicting rulings on the guidelines’ constitutionality mean that judges sitting in adjacent courtrooms are applying different rules. On Friday the 9th Circuit heard an appeal from San Diego, where district judges have been divided on the guidelines. By one count, 51 judges around the country have voted to invalidate the guidelines while 39 others have upheld them. Clearly, guidance from the appellate courts and the U.S. Supreme Court is needed urgently so that federal judges can be certain whether to apply the new guidelines, like them or not.