How Judges Will Use Discretion Is the Big Question

Wednesday’s Supreme Court decision on sentencing guidelines will give federal judges significantly greater power in deciding how long criminals will be imprisoned, an ironic result for a legal dispute that began as an attack on judicial power.

The big question now, legal scholars and practitioners said, is how judges will use the discretion they have been given.

Since the federal sentencing guidelines were adopted in 1987 to provide more uniformity in sentencing nationwide, many judges have complained that the rules place constraints on their ability to make refined decisions about punishment.

Dickran Tevrizian, a U.S. District Court judge in Los Angeles who was appointed by President Reagan, applauded the development. “We’re back to square one,” Tevrizian said. The ruling gives judges the discretion to sentence the individual and not just the crime, he said.

Still, most legal observers said the long-term consequences were hard to predict.

“The bottom line is uncertainty,” said Harvard Law School professor William J. Stuntz. “Nobody knows what the sentencing landscape will look like two years down the road. That depends on how federal judges react to the decision, and how Congress reacts to the judges’ actions.”

Nonetheless, Stuntz and other law professors expect most judges will move cautiously before making dramatic departures from the guidelines -- even though Wednesday’s ruling means they are no longer bound by them.

“We have a generation of judges who have been raised on the guidelines,” said Loyola Law School professor Laurie Levenson. “Even though they are no longer required to follow them, the guidelines are what they know, and they are likely to impact sentences.”

Stanford Law School professor Robert Weisberg agreed.

“In the short term, judges will at least act like they are obliged to take the guidelines very seriously.... I don’t think the judges will go widely out of line” from where the guidelines would normally take them, he said.

The court’s ruling offered something to prosecutors and defense lawyers.

Cardozo University law professor Barry Scheck, who also is president of the National Assn. of Criminal Defense Lawyers, praised the ruling.

“For 20 years, courts have been forced to impose unjust, irrational sentences based on unproven allegations, speculative calculations and the worst kinds of hearsay,” Scheck said. “Congress should welcome this opportunity to create a fair and just federal sentencing system, not a quick fix.”

Assistant Atty. Gen. Christopher A. Wray said the Justice Department was disappointed that “the decision made the guidelines advisory in nature.”

But Wray said the guidelines remained a “critical part of the process to achieve justice. District courts are still required to consult the guidelines, and any sentence may be appealed by either defense counsel or prosecutors on the grounds that it is unreasonable.”

Inconsistencies in sentencing probably will increase, said Ohio State University law professor Douglas Berman.

Defendants “with particularly sympathetic personal circumstances,” such as an elderly defendant who has been supporting a family, could benefit, Berman said.

Maria Stratton, the chief federal public defender in Los Angeles, agreed.

“We represent a lot of defendants who have had childhood abuse, mental illness, troubled family situations. Under the guidelines, that stuff couldn’t be considered. Now it can,” Stratton said.

While welcoming the decision, U.S. District Judge David O. Carter, who is based in Santa Ana, expressed concern that the ruling might trigger many more appeals.

“Uniformity under the sentencing guidelines was a shield for defendants who deserved harsher sentences and a sword that struck down rehabilitation for those who deserved leniency,” Carter said. “This decision lets the judge sentence fairly. Experience shows that uniformity was a bad proxy for justice.”

Since last summer, federal courts have been unsettled as the Supreme Court considered the case. Many had feared the court would void the sentencing guidelines.

“Between blowing up the system and introducing a measure of flexibility, wisdom surely counsels for the latter,” said Stuntz, who praised the decision.

The scholars also noted the irony of the outcome -- a point emphasized by Justice Antonin Scalia in his dissent.

Scalia called the court’s new approach “wonderfully ironic. In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing.”