Recently, while researching sentencing issues, I came across an excellent article written by a United States District Court Judge James S. Gwin and published in the Harvard Law and Policy Review. The premise of the article is that federal criminal sentences generally do not reflect community values. In short, sentences imposed by judges under the federal Sentencing Guidelines are, in most cases, far longer than “regular people” believe is appropriate.
The article begins with a discussion of the historical purposes of sentencing – retribution, rehabilitation, deterrence and incapacitation. In simple terms, we send people to prison for committing crimes to (1) punish them for what they have done; (2) “fix” them with treatment and/or education; (3) encourage them not to reoffend out of fear of more punishment; and (4) prevent them from committing crimes during the time they are locked up. At various times in our history, our criminal justice system has elevated one purpose over another, depending on politics and trends in criminal psychology.
Judge Gwin argues in his article that currently our criminal sentencing system elevates “retribution” over the other purposes – an emphasis Judge Gwin believes to be appropriate. According to Judge Gwin, if the primary purpose of sentencing is in fact retribution, i.e. punishment that is calibrated to reflect the seriousness of the crime and the criminal past of the offender, then sentences should reflect community values. Put another way, if sentences are significantly longer or shorter than the community collectively believes is appropriate for particular offenses and offenders, then the public loses faith in the legitimacy of the criminal justice system.
With that as a background, Judge Gwin describes a study conducted in his own district wherein, in twenty-two criminal cases in which juries returned guilty verdicts, each juror was asked to recommend a particular punishment in months for the convicted defendant. In each case, the juror recommendations were sealed and only opened after sentence had been imposed by the sentencing judge pursuant to the normal procedure and with due consideration given to the applicable Sentencing Guidelines range.
Remarkably, Judge Gwin’s study found that juror sentencing recommendations were significantly lower than the applicable Guidelines sentencing ranges. Overall, the median juror recommendation was only 19% of the median Guidelines range and only 36% of the bottom of the guidelines range. As an example of what that means in practical terms, for a median recommended Guidelines range of 100 months of incarceration, the sampled jurors would have recommended a sentence of only nineteen months. Judge Gwin concludes that sentences under the Sentencing Guidelines do not reflect community values regarding the appropriate punishment for most categories of crimes and offenders. He recommends that the United States Sentencing Commission sample juror attitudes regarding sentencing so as to bring the Sentencing Guidelines more in line with community values.
This article resonated strongly with me because it reflects what I have experienced – that is, that the average person is surprised at the length of federal criminal sentences. Over the years, I have found that non-lawyers are invariably shocked by the sentences that are imposed in federal cases when they learn the facts and the background of those cases. I have found that not only do most laypeople erroneously believe that federal criminal sentences are short, but most also believe that federal prisons are "country clubs."
Although, Judge Gwin’s proposal is thought-provoking, I doubt that the Sentencing Commission will follow his suggestion and sample juror attitudes. There is very little political will in this country for lowering sentences. Legislators in both parties find it much easier to garner votes with a “tough on crime” attitude than to give real consideration to reforming federal criminal sentencing. However, in today’s fiscal climate, a reduction in the length of federal criminal sentences could serve the dual salutary purposes of bringing sentences into line with community sentiment while also cutting costs.
Judge Gwin’s article can be found here:
"Juror Sentiment On Just Punishment: Do The Federal Sentencing Guidelines Reflect Community Values?"
Sunday, April 28, 2013
Sunday, April 7, 2013
Welcome to my new criminal defense blog, InDefense. I am a federal criminal defense attorney in private solo practice and I have been so for the past twelve years. As a federal criminal defense and appellate attorney, I produce a great deal of written work product. I love that aspect of my practice, but I have often thought that it would be fun to write about interesting issues in criminal law, not as an advocate but as an observer and critic. That is the genesis of this blog.
Even though I am writing for myself, my hope is that current and prospective clients, colleagues, and maybe even the general public will find this blog informative and will come away with a better understanding of some of the issues facing criminal defense practitioners and their clients. I have found, as I have built my practice, that there are a lot of misconceptions about criminal defense and criminal defendants. I anticipate that many of those misconceptions will inspire future posts.
For the moment, let me state for the record that I love my work and cannot imagine doing anything else. Criminal defense lawyers safeguard the rule of law, and indeed the right to counsel in a criminal case is so important that it is enshrined in the Constitution. President John Adams once opined of his defense of British Soldiers in the Boston Massacre trials in 1770 that it was "one of the best Pieces of Service I ever rendered my Country." 'Nuff said.