Vol. 35, Number 12—December 2003

Federal Judges Testify at First Kennedy Commission Hearing



Five current and former federal judges testified in November before the ABA Justice Kennedy Commission, which is looking at the current state of sentencing and imprisonment. The Commission formed by ABA President Dennis W. Archer and composed of federal and state judges, prosecutors and private attorneys, will make recommendations to the ABA House of Delegates at its annual meeting in August 2004.

Former U.S. Sentencing Commission (USSC) commissioners Chief Judge Deanell R. Tacha (10th Cir.) and Judge Sterling Johnson (E.D. NY) testified, along with Judge Paul G. Cassell (D. Utah), former federal judge John Martin, and Judge Nancy Gertner (D. Mass.), who is participating in an American Law Institute project to draft model criminal sentencing standards. Also testifying at the first of the scheduled public hearings were federal prosecutors, corrections officers, federal defenders, attorneys, law professors, and state and federal sentencing commissioners.

They responded to a number of questions including “What Are the Objectives of Punishment and What Sentences Best Serve Those Objectives?”, “Should There be a Second Look at Sentence?”, “Can Rehabilitation Succeed and Reentry Be Successful?”

Chief Judge Deanell R. Tacha (10th Cir.) and Judge Nancy Gertner (D. Mass.) discussed the question, “Who Decides Sentences at the Front End?”

“The proper judicial role is obvious. Every judge bears the heavy responsibility to sentence according to the Constitution, the laws of the United States, and the individual characteristics of both the defendant and the crime. The difficult question, however, is the proper scope of discretion granted to judges in their sentencing decisions.

Unlike many of my colleagues, I would not advocate full judicial discretion in imposing every sentence, as I think such discretion fails to strike the appropriate balance between the judicial and legislative functions. Instead, I support the U.S. Sentencing Guidelines and believe that they largely accomplished the policy purpose for which they were designed. Most importantly, in my view, the Sentencing Guidelines established a proportional and uniform national system.”

“In my opinion, it would be a terrible mistake for Congress to adopt amendments to the guidelines directly without the benefit of the [U.S. Sentencing] Commission’s expertise.”
- Chief Judge Deanell R. Tacha (10th Cir.)

“We have lost our way in recent years. While it was fair to be concerned about unwarranted sentencing disparity—inter-judge, regional, class, gender—we have lost sight of other goals of sentencing. We have stopped asking what sentencing regimes are most effective for crime control, for reduced recidivism. It is as if we are most concerned about directing judges to give like sentences for like offenders, even if those sentences make no sense.”

“It is troubling for me, as a federal judge, to see the range of experimentation in the state courts—with specialized drug courts, a wide variety of treatment alternatives—while the federal system has one direction and one direction only—more and more incarceration for longer and longer periods of time.”

“Sentencing is not about uniformity and rigid standards. Nor is it about individualized justice and unlimited discretion. It is something in between. There ought to be general consistency for offenders similarly situated with respect to offense and criminal history, standards keyed to what works to reduce crime, and not merely retribution. But there has to be a recognition of, and respect for, the individuals caught in the interstices of the general standards—the individual who could well be helped, or even changed if only we paid attention, the individual who surely does not deserve cookie-cutter justice.”
- Judge Nancy Gertner (D. Mass.)

Judge Sterling Johnson (E.D. NY) responded to the question, “What Works as to Drug Crimes: Prison Alternatives?”

“Because of budget constraints, the states are being smart on crime, not tough. The federal system doesn’t have to be smart. But a longer sentence isn’t necessarily the best answer for some offenders. Judges need to have the discretion to depart from the sentencing guidelines in those cases.”

“We can’t jail our way out of a problem. With over 2 million people in the federal, state and local prison systems, we will have to address the problems of mental health, an aging prisoner population, AIDS and HIV. Who will pay for it?”
- Judge Sterling Johnson (E.D. NY)

Judge Paul G. Cassell (D. Utah) and former federal judge John Martin addressed the question, “How Effective is Federal Sentencing?”

“The Sentencing Guidelines make sense, but there has got to be discretion for judges. I’m in favor of guidelines that are just that—guidelines. . . . When there are mandatory minimums and inflexible guidelines, you end up doing injustice in a large number of cases.”
- Retired Judge John Martin

“With respect to the severity of the Guidelines, we need to consider the purposes of criminal sentencing. Federal sentencing has two primary aims: just punishment and crime control. The Guidelines appear to satisfy both of these goals.”

“In light of the Guidelines, the mandatory minimum sentences are largely redundant. Their only effect is to prevent downward departures from the Guidelines in unusual cases. This ‘no escape’ feature of the mandatory minimums can lead to possible injustices in particular cases.”
- Judge Paul G. Cassell (D. Utah)