- The Washington Times - Monday, August 18, 2003

Criminal sentences mirror moral judgments about the wretchedness of the crime and the depravity of the offender. Neither judges nor prosecutors nor penologists nor moral philosophers command any greater sentencing wisdom than do legislators or common citizens, for example, whether to sentence a recidivist robber to life imprisonment or some lesser punishment. Professional expertise in sentencing is an illusion with false promises of rehabilitation and deterrence with lenity.

That recognition — verified by 4,000 years of experience — discredits the angular attacks on the Protect Act of 2003 and an implementing July 28, 2003, policy directive of Attorney General John Ashcroft. Together, the two stiffen federal penalties, curtail the discretion of federal judges and scrupulously review for purposes of appeal sentencing adjustments downward from a base prescribed by Congress and the U.S. Sentencing Commission.

The Protect Act passed unanimously in the Senate. It elicited near universal support in the House of Representatives. The legislation reflected a moral judgment by the elected voices of the people that sentences had become too lenient and that punishments should more fit the crimes and less the characteristics of the offenders.

Federal and state judges enjoyed virtually limitless sentencing discretion in the decades before the 1987 inauguration of federal sentencing guidelines and contemporaneous mandatory minimum and three strikes laws for career criminals. The Great Society zeitgeist celebrated the pseudo-knowledge of judges and parole authorities to rehabilitate criminals and to shrink punishments to the minimum thought necessary for deterrence. That folly occasioned a frightful and unprecedented vertical climb in crime rates for multiple reasons.



The prospect of prison for criminals dwindled. Rehabilitation programs predictably failed. Recidivism rates reached alarming percentages. Crimes committed by parolees became commonplace newspaper stories. Parole boards confessed their inability to separate inmates unlikely to recidivate from the incorrigible by demanding legal immunity for their release decisions that spawned a shocking number of new crime victims.

Since the beginning of civilization, the causes of crime have been meticulously studied without result. Knowledge is bogus unless it reliably predicts events or behavior before the fact. And no professional has ever been endowed with sufficient knowledge to determine with reasonable confidence whether a prison inmate will return to criminality if released. Neither has any rehabilitation expert ever contrived a treatment regime that slashes recidivism below what would obtain with prison terms.

By the 1980s, the American people came to disbelieve the utopian legal professionals and judges who insisted that maximum sentencing discretion would cause crime to plunge and achieve perfect justice. Two moral maxims fueled popular disgruntlement with idiosyncratic judicial sentences and popular demands for curbing sentencing discretion: equal crimes should be punished equally; and, it is better that the innocent be protected from recidivism through uniform and long terms of imprisonment than that no criminal serve more time than might be absolutely necessary to deter or prevent crime by incapacitation. That public discontent found expression in mandatory minimum punishments, three-strikes laws prescribing life sentences, and federal sentencing guidelines written by the U.S. Sentencing Commission. The latter constrains judicial discretion by establishing a presumptive sentence calculated by reference to the odiousness of the offense and the criminal history of the offender. Upward or downward adjustments are authorized if the judge finds specified aggravating or mitigating facts. Downward discretion has been exercised more than its upward counterpart by a ratio of 36 to 1. The ratio remains staggering even after discounting the large number of downward adjustments pivoting on the defendant’s cooperation with the government to prosecute other criminals.

Crime rates tumbled concurrently with the curbs on sentencing discretion. The prison population jumped to approximately 2.1 million as the probability of incarceration escalated. Deterrence was strengthened through incapacitation of convicted criminals and the prospect of daunting sentences.

Too little is known about human nature to know with apodictic certainty that sentencing discretion generally promotes crime while strict and standardized punishments generally deter. But the last four decades of experience persuasively substantiate that proposition. The Protect Act thus enhanced public safety by directing the U.S. Sentencing Commission to revise guidelines to reduce downward adjustments by ending open-ended judicial sentencing discretion for sex crimes against minors and by encouraging appeals of downward adjustments through meticulous monitoring of legally dubious decisions.

Self-crowned sentencing wizards have assailed the act for its tacit reproach to their claimed wizardry in curbing crime and rehabilitating criminals. Supreme Court Justice Anthony Kennedy, for instance, recently complained to the American Bar Association that federal sentences are too harsh and inflexible. And Indiana Law School professor Frank O. Bowman III and former special counsel to the U.S. Sentencing Commission, writing in The Washington Post on Friday patronizingly lectured: “For over a decade, the legal professionals who apply the [sentencing] guidelines to real people have been expressing [Justice Kennedys] truth through their behavior. … Both the Justice Department and Congress should listen to what the professionals are saying.”

But the incidence of crime rocketed with Mr. Bowman’s professionals in the catbird’s seat, and plunged with their replacements by so-called legislative amateurs. Would not restoring their ascendancy be like appointing California’s embattled Gov. Gray Davis to fashion the nation’s energy policies?

Bruce Fein is a founding partner of Fein & Fein in Washington.

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