The most comprehensive sentencing reform in the history of the federal judicial system becomes law this week in courtrooms across the country, toughening penalties for a wide range of crimes, virtually eliminating probation for most offenders and wiping out the federal parole system.
Judges and lawyers alike are predicting that the new sentencing guidelines--the product of two decades of debate over how to fix punishment for federal crimes--will spawn chaos in the courts and send a flood of new prisoners into the nation's already overcrowded prison system.
Yet nearly all agree that they provide for the first time a framework for punishment in a system that has historically been subject to judicial whim.
The guidelines, established by the U.S. Sentencing Commission at the direction of Congress, curtail the broad discretion federal judges have traditionally exercised by establishing a narrow range of penalties and requiring criminals to serve out their full prison terms.
Penalties for white-collar crime, drug trafficking and repeat offenses are all substantially boosted--in part because of two new crime laws which take effect with the guidelines. At the same time, the number of federal defendants required to serve time is expected to escalate from slightly more than half, at present, to more than 80%.
Need for Uniformity
Those on both sides of the debate agree that the new guidelines, echoing recent state efforts at sentencing reform, largely remove both bias and compassion from the sentencing process--focusing on punishing the crime, not the criminal--and virtually rule out the notion of rehabilitation as a goal of sentencing.
"We're saying very concretely, right at the beginning, that the purpose is to punish and to deter. We're no longer going to fool ourselves by thinking that somebody is likely to be rehabilitated by going to prison," said Ilene Nagel, an Indiana University law professor who served on the commission that drafted the guidelines.
At the same time, she said, the standards are intended to provide uniformity to a sentencing process that has displayed troubling variations across the nation depending on the sex, race and marital status of the defendant and the peculiar mores of the region in which a crime was committed.
Trial judges have been almost uniformly suspicious of the new guidelines, many complaining that the complex tables and formulas for setting punishments guarantee confusion and a reduction in their own ability, quite simply, to be judges.
"They stink," said U.S. District Judge Dickran Tevrizian, a former state court judge. "The concept is very, very good. I think it's what everybody in the judicial system would like: fairness, equality, the perception of a system that is more equitable and honest. Great. Sounds good. Ain't gonna work."
"I think most judges agree there ought to be a better system, but I don't know any so far who like what they've seen," U.S. District Judge Terry Hatter Jr. said. "I don't want to end up just being a person who sits with a calculator at the bench and comes out with a set of numbers."
'A Step Backward'
"My feeling is it's a ridiculous step backward," said A. Andrew Hauk, a senior federal judge in Los Angeles. "Why not just do what the Arabs do, chop off their fingers or bite their tongue out? What on Earth do they want us to do? Treat everybody the same. How can you do that if you're a human being?"
In fact, it was a widespread perception that subjective considerations played too great a role in punishing criminals that first prompted bipartisan calls for federal sentencing reform in the 1950s.
After a series of hearings and legislative proposals on the issue in the 1970s and early 1980s, Congress in 1984 adopted a comprehensive crime bill that, among other things, created the sentencing commission and delegated to it broad authority to "review and rationalize" the federal sentencing process.
"The commission's empirical research confirmed that unwarranted disparity is a troublesome and unjust reality in the federal system," said Andy Purdy, a staff member for the U.S. Sentencing Commission.
The commission examined past sentences meted out for four typical federal crimes--bank robbery, fraud, bank embezzlement and heroin trafficking--and found differences of as much as nine years in the length of sentences imposed for nearly identical offenders.
Study of Criteria
Moreover, commission analysts found variations based not only on factors such as previous criminal records, level of culpability compared to other defendants charged and the use of violence, but on criteria that are not supposed to play a role in a judge's sentencing decision: race, sex, marital status.