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NY Times editorial: Rethinking criminal sentences

July 28, 2010

The New York Times editorial board points out the particularly difficult balance judges must find between using their discretion and adhering to sentencing guidelines and a sense of consistency among the judicial branch.

As the editorial notes, federal judges were set free from strict sentencing guidelines five years ago. While they are still advised to consult sentencing guidelines, they are free to issue their own sentence based upon their sense of the case and a judgment on the severity of the offense.

The result has often been lower-than-expected sentences for some white-collar crimes and child pornography offenses.

From the editorial –

Sentencing for white-collar crimes — and for child pornography offenses — “has largely lost its moorings,” according to the Justice Department, which makes a strong case that the matter should be re-examined by the United States Sentencing Commission.

Five years ago, federal judges were set free to make their own sentencing decisions. The Supreme Court said that they had to consult federal guidelines when sentencing criminals to prison and imposing fines but were not required to abide by them. It was a smart move away from the rigidity demanded by many lawmakers, balancing judicial discretion with a “reasonableness” test to be applied by appellate courts.

The change did not lead to the widespread chaos predicted in 2005. But in a report last month, the Justice Department said something appears to be wrong in the sentencing guidelines for white-collar fraud cases and child exploitation crimes, including pornography, where outcomes vary widely from judge to judge.

As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will “breed disrespect for the federal courts,” damaging their reputation and the deterrent effect of punishment.

It seems that the answer is not the reimpose a stricter control over judges in issuing sentences, but perhaps better guidelines in how to differentiate between the worst offenders and the least. Apparently judges aren’t receiving the needed guidance now, but the balance between judicial discretion and fairness will always be difficult to strike.



  1. July 28, 2010 2:49 pm

    I think the mandatory minimums for drug offenses are too high and I would be in favor of seeing them reconsidered as many drug dealers and addicts are not violent people who lengthy prison sentences will assist in rehabilitating.

  2. July 28, 2010 3:01 pm

    Good point, Tyler. Certainly drug trafficking can have a component of violence to it, but the idea of setting drug sentences higher under a presumption of violence seems misguided. And longer sentences without an effort toward rehabilitation can certainly be counterproductive.

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