We Told You So, Part 2

Eight years ago, I wrote in this post:

The sentence a convicted defendant receives should depend on what he did and what he has done before, not which judge he draws.  The Sentencing Reform Act of 1984 was the product of a rare bipartisan consensus on criminal law that judge-to-judge disparity had gone too far and needed to be reined in.  The Supreme Court threw out the key element of that reform, mandatory sentencing guidelines, in the Booker case in 2005.  We didn't need to be clairvoyant to predict what would happen.

The post reported on a study that sentences were indeed increasingly dependent on which judge was assigned to the case.

Today the United States Sentencing Commission issued a report titled Intra-City Differences in Federal Sentencing Practices. Among the key findings:

In most cities, the length of a defendant's sentence increasingly depends on which judge in the courthouse is assigned to his or her case.

This is outrageous, and it deserves a vigorous response. The correct response is to reinstate the system of mandatory guidelines. Congress got it right in 1984. To the extent that the system impinged on the right to jury trial, the answer was and is to tweak the system so that juries find the disputed facts that fall within the Sixth Amendment right. The Supreme Court in Booker used a meat-axe where a scalpel was called for, replacing the system Congress enacted with a different one. Congress needs to restore the original plan.

Some people are so obsessed with reducing prison population that they view everything on that scale and don't care about details like the basic fairness of treating similarly situated people the same. So here, once more with feeling, is an offer of compromise. In return for reinstating the mandatory system of guidelines, let us repeal all statutory mandatory minimums.

The guidelines, with appropriate appellate review of unwarranted downward departures, will substitute for the minimums. Because the Sentencing Commission will review and revise them from time to time, they will not suffer from the long-standing problem of a legislature enacting a harsh statute in response to a specific crime and then forgetting about it.

We Told You So, Part 2 curated from Crime and Consequences Blog