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There Goes the Judge--Into Private Practice : Sentencing rules are a disservice to justice and to jurists

October 01, 1990

It wasn't the lure of big money or the crush of the federal court workload that prompted one of California's keenest judicial minds to announce his resignation from the bench last week. It was something more personal. Something more unfortunate.

The fun had gone out of the job, said U.S. District Court Judge J. Lawrence Irving, because federal sentencing guidelines have eliminated the human side of his task.

With sentencing now reduced to a series of mathematical calculations based primarily on a congressionally devised formula, the San Diego judge and all his colleagues around the country have lost the power to perform the task that largely defines their roles: dispensing justice tinged with human compassion.

Many people opposed the sentencing guidelines, as did The Times, when they were enacted by a Congress concerned about disparate sentences and convinced that soft-hearted judges were inadequately punishing criminals.

But mechanical sentencing guidelines are no substitute for judicial discretion. The point-system approach that took effect in 1987 can no more replace the feel that an experienced judge has for a fair sentence than standardized testing can fully substitute for a teacher's personal assessment of student achievement.

Moreover, the new system, which is excessively severe, lessens defendants' incentive to plea bargain--an indispensable tool of efficient, affordable justice--and gives prosecutors an entirely unwholesome impetus to seek indictments geared to the guidelines as much as the evidence.

Various federal court judges--including Irving--have found the guidelines unconstitutional, but the U.S. Supreme Court disagreed and upheld them in 1989.

Irving's decision provides a glimpse at an unintended consequence of Congress' action. The federal court system, with its well-publicized problems, can ill afford to lose jurists like the 55-year-old Reagan appointee by circumscribing their discretionary power.

A highly regarded civil litigator and self-made multimillionaire, Irving has drawn exceptional praise since his 1982 appointment from all sides of the legal community for his integrity and knowledge.

Irving did not trade his black robe for the riches of private practice or complain of the burdens of his post. (He did dearly want to be appointed director of the FBI three years ago, but that's another story.)

Instead, Irving cited Richard T. Silberman's recently concluded money-laundering case to illustrate his complaint. Under the guidelines, Irving sentenced the former aide to Gov. Edmund G. Brown Jr. to 46 months in federal prison after the FBI caught Silberman in a drug-money laundering sting.

Irving said from the bench that, because of Silberman's "many contributions to the community," he might have considered sentencing the financier to less than the 41 to 51 months required by the guidelines.

"It used to be that a judge could do some good in sentencing," by showing leniency where it was appropriate, Irving said. "Now, I can't do that. It tugs at your heart."

Irving believes he is the first U.S. judge to resign in protest over the guidelines. We suspect he won't be the last. In this case, the federal bench, and those who come before it, will pay for Congress' delusion that justice can be administered by pocket computer.

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