Fear of Law: Thoughts on 'Fear of Judging' and the State of the Federal Sentencing Guidelines

Posted: 21 Feb 2001

Abstract

This Article was written in connection with a symposium on the Federal Sentencing Guidelines hosted by the Saint Louis University School of Law. As the title suggests, the Article is both a review of the widely-discussed book, Fear of Judging: Sentencing Guidelines in the Federal Courts, by Kate Stith and Judge Jose A. Cabranes, and a commentary on the state of the Federal Sentencing Guidelines. The Article suggests that Fear of Judging is really two books. The first of them is a cogent, if not always convincing, critique of the Federal Sentencing Guidelines, which culminates in a series of serious, and often desirable, proposals for reform of the existing guidelines system. The other book, which surfaces at intervals throughout the first one, is far less persuasive, apparently the fruit of a mesalliance between post-modernist skepticism of the very idea of rational legal rulemaking and a near-mystical vision of individual judges as the sole legitimate dispensaries of moral judgment in criminal law. This second book-within-a-book produces a second and final set of proposals, this time not for reform of the Guidelines framework, but for Stith and Cabranes' vision of an ideal sentencing system. They would abolish the Sentencing Commission and repeal the Guidelines, create a committee within the judicial branch to write non-binding, advisory sentencing principles, and return virtually total sentencing discretion to sentencing judges subject only to appellate review on an abuse of discretion standard. The Article responds to several points in the Stith and Cabranes critique of the Sentencing Guidelines.

First, it questions their assertions that only judges are capable of performing the "moral reasoning" essential to fixing punishment for criminal offenders, and that sentencing guidelines prevent judges from performing such reasoning. Not only is "moral reasoning" a component of legislative lawmaking, Sentencing Commission rule-making, prosecutorial charging decisions, and jury deliberations, but judges applying the Guidelines use "moral reasoning" at every turn. Second, the Article suggests that, while the current Guidelines system may be the product of an unhealthy fear of judicial discretion, the system of virtually unbounded judicial sentencing discretion preferred by Stith and Cabranes rests on an apparent fear of law itself.

The Article also addresses at length a point that may have been underappreciated by Stith and Cabranes, namely the effect of sentence severity on the operation of the guidelines. The Article suggests that drug sentences in particular are so lengthy that they may distort the perceptions and behavior of judges, prosecutors, and other actors in the criminal sentencing system. The Article describes various empirical and anecdotal indications that system actors may be evading or manipulating the nominal rules of the guidelines system in order to reduce sentences perceived to be unnecessarily long. Such behavior is corrosive of the legitimacy of the guidelines.

Finally, the Article suggests and discusses desirable changes to the current guidelines system, including reduction of some drug sentences, transformation of the Sentencing Commission into a more politically effective institution, making the federal sentencing system more responsive to the concerns of judges, and increasing the procedural protections of defendants at sentencing.

JEL Classification: K14

Suggested Citation

Bowman III, Frank O., Fear of Law: Thoughts on 'Fear of Judging' and the State of the Federal Sentencing Guidelines. Available at SSRN: https://ssrn.com/abstract=261070

Frank O. Bowman III (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States
573-882-2749 (Phone)

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