FAIRNESS IN FEDERAL SENTENCING: AN EXAMINATION Good afternoon. I am delighted to be here and to be able to share with you a few remarks about what has been my passion in the law for the better part of the past two decades: federal criminal sentencing policy. Now, I know that all of you work with judges who sentence people, so you are generally familiar with how federal sentencing works. But have you ever taken the time to reflect on the history and development of sentencing policy and procedure in the federal system? It’s actually pretty fascinating — I mean, why is it that the Sentencing Guidelines are what they are? And how did we manage to evolve from a completely unregulated sentencing system, to one that had mandatory guideline sentences, and now, as you know, we exist in a world in which there are BOTH #tdeltnes AND eee lat sentencing? hese are the Ikinds of questions that I have grappled with for in my role Rtt'staffemof the United States Sentencing years — fir Commission; then, as a Vice Chair and appointed member of the Sentencing Commission; and even now, in my current gig as a U.S. District Judge. I have also had the good fortune of being able to teach a seminar on federal sentencing as an adjunct professor at a law school in my area, and in my class, I have one basic goal—to persuade my students to think about federal sentencing not as an oddly narrow area of focus that is tacked on to criminal law, but instead, as a vast area of inquiry that is well worth studying all on its own. In fact, if you were to take my class, you would hear me tout criminal sentencing as among the “don’t-miss” courses and subjects in law school, not just because I 1teach it, but because I, for one, believe that sentencing law and policy is one of the most important things that any budding lawyer—és, for that matter, any seasoned practitioner—can study. Why is that? Well, there is the practical reason that, as you know, no fewer than 97% of the cases in the federal criminal justice system are now resolved by guilty pleas, so in the vast majority of criminal cases, sentencing is really all there is. But even beyond that, learning about sentencing is important for a//lawyers, even if criminal law is not your thing, because, at bottom, the sentencing of criminal offenders is the authorized exercise of the power of the government to subjugate the free will of individuals—which in and of itself has enormous implications in a society in which the government derives its power from the will of the people. Dostoevsky put it this way: “you can judge a society hy how well it treats its prisoners.” So, as I see it, becoming well-versed in how our government exercises its power over people who breach its commandmerifis essential to sustaining our very democracy. [also try to convince my students that sentencing is just plain interesting on an intellectual level, in part because it melds together myriad types of law—criminal law, of course, but also administrative law, constitutional law, critical race theory, negotiations, and to some extent, even contracteg=m. And if that’s not enough to prove to them that sentencing is a subject is worth studying, I point out that sentencing policy implicates and intersects with various other intellectual disciplines as well, including philosophy, psychology, history, statistics, economics, and polities. 2In my time here this afternoon, I hope you will indulge me as T attempt to provide you with a bird’s eye view of federal sentencing as a subject—a course nutshell, if you will—that I hope will re-ignite in some of you ab interest in a legal subject matter that, in my view, is too often too little emphasized. This brief overview will track what I have come to realize are the two fundamental inquiries that lie at the heart of our federal sentencing system and that animate every aspect of the sentencing organism. If you take away nothing else from what I say here today, remember this: al/of federal sentencing—the history, the structure, the policy, the procedure, the entire discipline—always and inevitably reduces to two essential questions, first, what is fairness? and, second, who decides? Now, I learned early on that when you make a sweeping statement like ‘all aspects of our federal sentencing system can ultimately be traced back to the questions of fairness and control,’ one should really provide the audience with an example, and so, luckily, I have one! My example today is a true story that takes us back to the late nineteenth century. . . . I Crow Dog's Case The year is 1881. A tribe of Native Americans known as the Brule Sioux were living and hunting in bands on the great plains of central South Dakota. This migratory people survived by hunting and gathering within land that the United States government had set aside for a areservation, but at that point in history, the relationship between the nascent United States government and the long-established Indian nations was still very tenuous. The head chief of the Brule Sioux was a man known as Spotted Tail. Spotted Tail was handsome and well-liked by many, but he was also known to be aggressive and he demanded absolute obedience from members of the tribe, ruling over the lower chiefs with something of an iron fist. Spotted Tail also generally believed in keeping peace with whites, which meant that he often served as an intermediary between the tribe and the federal government. Spotted Tail's power within the tribe and his relationship with federal authorities meant that the Brule Sioux did not participate in the Great Sioux-American wars of the mid- 1880s, and it also resulted in Spotted Tail’s becoming an agent in the federal Bureau of Indian Affairs, which compensated him handsomely for his influence in calming his people. Another leader within the Brule Sioux tribe—a man who went by the name of Crow Dog—was more traditional and substantially less accommodating. Crow Dog was a Sioux warrior who had been closely associated with Crazy Horse and had once joined Sitting Bull in exile in Canada, Crow Dog felt strongly that encroachments by whites and the U.S. government into the lands and customs of the Sioux nation must be resisted. Crow Dog led a faction of the Brule Sioux that was in strong opposition to what they believed was the arbitrary, dictatorial, and traitorous leadership of Spotted Tail.In the afternoon of August 5, 1881, Crow Dog crouched along the side of a road that: led to Spotted Tail’s (government-constructed) house, presumably fixing the wheel of his carriage. When Spotted Tail came riding along on a horse, Crow Dog leapt up, pulled out his rifle, and shot Spotted Tail through the side, the bullet exiting out of his chest. Spotted Tail fell off his horse onto the ground, stood up, staggered a few steps, went for his own pistol, but fell dead before he could get off a shot. Now, I tell you this true story, not so much because of the crime but because of the aftermath, which is an interesting tale of two punishments. In the wake of Spotted Tail’s death, Crow Dog was, at first, subjected to the Brule Sioux system of justice. These native people had a dispute-resolution system that was controlled by a council of appointed leaders. This tribal council didn’t care about retribution or enforcement of a moral code, but instead were focused primarily on survival, so the ultimate value for them, in civil or criminal matters, was to terminate the conflict and to reintegrate everyone peacefully back into society. In Crow Dog's case, the council met not to “convict” or “acquit” but to arrange a peaceful reconciliation of the affected families. The council determined that Brule law required Crow Dog’s family to give Spotted Tail’s family $600, eight horses, and a blanket, which Crow Dog's people promptly paid and Spotted Tail’s family accepted. (For his part, Crow Dog purified himself in a sweat lodge and shot his rifle into sacred rocks to assuage the spirit of Spotted Tail). And, with that, under tribal law, the matter was settled.Now, needless to say, that system of dispensing justice for murder was radically different than the one that existed in the broader United States at the time. Indeed, when the federal authorities in South Dakota heard about the murder and the way it had been resolved, they stormed the Brule Sioux reservation, arrested Crow Dog, prosecuted him for murder in federal court, convicted him (in spite of his claims of self- defense), and a judge sentenced him to hang for the killing of Spotted Tail. One crime—two dramatically different punishments. In the end, Crow Dog was ultimately spared by the Supreme Court of the United States, which reversed his conviction on the narrow legal ground that tribal sovereignty precluded federal prosecution. Congress subsequently overturned the Supreme Court’s ruling for future cases through the passage of legislation that gave federal courts jurisdiction over major crimes committed on tribal lands,! but for present purposes, Crow Dog’s case is the perfect illustration of the primary points that I hope to leave with you today. What I really love about this story is that it highlights the central tensions that are at work throughout all of federal sentencing and, as I have said, in my view all of these tensions ultimately relate to the issues of fairness and control. So, for example, the Crow Dog tale raises the obvious question: which of the two penalties was the “fair’—and by that + Crow Dog went on to live out the remainder of his days as a traditional leader among the Brule Sioux. The Court decision bearing his name was ultimately rendered obsolete as a result of Congress's enactment of the Major Crimes Act in 1885, which imposed federal criminal law on all those who violated the laws of the U.S.I mean “the just”—sentence for Crow Dog's crime? On the one hand, Crow Dog paid a significant fine, the victim’s family received compensation, and the tribe continued to have the services of a valued member of the community when one had already been taken from it— what more could hanging Crow Dog have accomplished? On the other hand, Crow Dog had done the unspeakable—he had actually Ailled the leader of the tribe—didn’t he deserve to be hung or otherwise punished severely and, if not, how could the tribe prevent this sort of thing from happening again? One could certainly say that both of the penalties were rooted in legitimate fairness concerns. Also important in the context of the Crow Dog example, is the question of who—that is, which entity—should make the penalty determination? As you heard in the story, a respected panel of Crow Dog's peers, the elders of his community, had examined local values and customs and had come to what they believed to be a fair result. Thereafter, the United States government looked at the same set of facts and applied its own criminal justice considerations, which went beyond Crow Dog’s particular circumstances and the needs of the Brule Sioux, and took into account what was considered necessary and appropriate punishment in the context of the broader federal criminal justice system. This raises the question: if fairness is our goal, should criminal sentencing be done on a local, individualized case-by-case basis OR more systematically, through the application of a centralized process that advances broader conceptions of justice?These are really tough questions for which there are no clear answers. But as we fast forward to the modern era and I talk for a bit about how the federal sentencing system has developed over the past half century, I hope you will see that federal sentencing policy has been driven largely by these two quests: to achieve fair sentencing outcomes and to be the institution that has the power to decide what fairness in sentencing really is. I. What Is Fairness In Sentencing? A wU Discretion (TI Guidelines Er: Let me begin at the beginning—which, for our purposes, is the 1970s—a decade in which the crime rate was extremely high nationally, and, at sentencing, federal judges had nearly unfettered discretion to impose any sentence within the broad range of punishment that the Federal Criminal Code prescribed. Those of you who have studied criminal law know that, in the federal system, the typical criminal statute says something to the effect of ‘whoever engages in the specified conduct’—for example, whoever steals money from a federally insured bank by force, violence, or intimidation—‘shall be imprisoned for not more than [xl,’ a specified term of years—for bank robbery, that statutory maximum term is 20 years. This means that, under the statutes, a federal judge traditionally had an enormous amount of discretion to select a sentence from between zero and twenty years, and it’s not surprising that, under these circumstances, defendants who were convicted of the same bank robbery crime, and had engaged insubstantially the same conduct—but who were sentenced by different judges—could end up with dramatically different sentences. In 1972, for example, a standard robbery offender in what was then the N.D.N.Y. received an average sentence of 39 months of imprisonment, while the average sentence for similar robbery offenders in the nearby E.D.N.Y. was 130 months in prison. And this kind of extreme difference was not limited to robbery: for example, forgery and counterfeiting violators received an average of 12 months of imprisonment in the N.D.N.Y., 49 months in the E.D.N.Y., and 77 months in the W.D. of Virginia, In light of such glaring disparities, it’s no wonder that ardent critiques of our sentencing system emerged. An influential report published in 1977 referred to federal sentencing as a “national scandal,” and described it as a “non-system” in which individual judges “formulate and apply their own personal theories of punishment.” That, by the way, was the cause of the sentencing disparities—not inept or corrupt judges, but different, sincerely-held beliefs about the purposes of punishment and how those purposes should be manifest in the context of individual cases. You have all studied criminal law, so you know that philosophers throughout history have had different views about the purposes of punishment, and in fact, where each one of us stands on the fairness question depends, in large part, on the philosophical camp in which we sit!The retributivists—including Hammarabi, Kant, and Henry Wadsworth Longfellow—argue that punishment is justified simply and solely because the offender has done something wrong. This retrospective view posits that morality demands punishment of the guilty, and that it would in fact be disrespectful of men as responsible moral agents not to punish them in proportion to their wrongdoing. As Longfellow put it, “Every guilty deed / Holds in itself the seed / Of retribution and of underlying pain”. .. ‘The utilitarians—like Plato, Bentham, and Hobbes—had a totally different perspective regarding the purpose of punishment. Utilitarians believe that punishment is justified only if it will promote good and/or prevent evil in the future. In this forward-looking perspective, one considers only what punishment will accomplish, and it is immoral to punish someone if doing so does not achieve a greater good. Plato said it this way, in defense of deterrence as the purpose of punishment: “Not that he is punished because he did wrong, for that which is done can never be undone, but in order that in future times, he, and those who see him corrected, may utterly hate injustice . . . [and] abate much of their evil-doing.” And there are other philosophies as well, including those that view punishment as a means of repairing the harm to the victim and the community—in this view, the point of sanctions is to provide compensation and to restore harmony.Now, it is not difficult to see how applying these very different punishment philosophies to the same set of facts could lead to dramatically different sentencing results. That happened in Crow Dog’s case, didn’t it? If you believe, as the Sioux elders did, that the purpose of punishment is reconciliation and restoration, then a heavy fine to compensate the victims is a rational sentencing result. But if retribution (something like Hammarabi’s “an eye for an eye”) is your guiding punishment principle, then nothing short of execution would do. With respect to the huge sentencing disparities that were being observed in the 1970s and were driven by different philosophies of punishment, many people on both sides of the political aisle were troubled. One of the most vocal critics was a federal judge on the §.D.N.Y.—Judge Marvin Frankel—who did a series of lectures in the early 1970s and published a book entitled: CRIMINAL SENTENCES: LAW WitHouT ORDER. Judge Frankel argued that the traditional federal sentencing structure—in which a single judge had “almost wholly unchecked and sweeping powers” to impose any sentence he wished— was “terrifying and intolerable for a society that professes devotion to the rule of law” because it essentially elevated judges to the role of kings and thus is fundamentally inconsistent with the basic tenant that we are “a government of laws and not men.” Conservative judges and commentators, such as Chief Justice Warren Burger echoed this sentiment, but the criticisms did not only come from those who disliked the fact that unelected, unaccountable judges had such power— progressive Senator Edward Kennedy voiced similar concerns during uthis same timeframe. In fact, Kennedy went even further, arguing that “the absence of principled sentencing policy” actually caused crime! ‘This was because, in Kennedy's view, deterrence requires certainty and unfettered sentencing discretion turns the criminal justice system into “a game of chance in which the potential offender may ‘play the odds’ and gamble on receiving a lengthy term of imprisonment or . . . no jail sentence at all,” depending on the judge. B. Enter: Regulation (The Sentencing Guidelines) By the end of the 1970s, there was so much concern about the state of federal sentencing that Senator Kennedy worked closely with conservative senators Strom Thurmond and Orin Hatch to develop an entirely new federal sentencing system, the cornerstone of which was the perceived need for regulation of sentencing discretion. The Sentencing Reform Act was enacted in 1984, and it not only crated the bipartisan Sentencing Commission, it also specifically required the Commission to develop sentencing guidelines that balanced two (sometimes competing) fairness principles: uniformity, on the one hand, and proportionality, on the other. Now, please don’t miss the fact that I have called both uniformity and proportionality “fairness principles.” I think that the latter makes intuitive sense to most people, because proportionality essentially means punishing people in proportion to not only the category of crime they have committed but also based on mitigating and aggravating facts about the individual that arguably relate to culpability—this view is sometimes referred to as “individualized” sentencing. But given what I 12