Former judge defends sentencing guidelines

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The federal sentencing guidelines are now advisory, rather than mandatory. But district judges should still be cautious in departing from them, advised Hon. Mark R. Filip, a former federal judge and former Deputy Attorney General.

Filip, who served in the Northern District of Illinois from 2004 to 2008, and as the number two attorney in the Department of Justice during the final year of the second Bush administration, urged “modesty” on judges’ part during a speech on Mar. 9 at Marquette University Law School’s annual Hallows Lecture.

Historically, Filip noted, federal judges had virtually unbounded discretion at sentencing. The disparity in sentences for similar offenses was so great that the mandatory sentencing guidelines were created with widespread support and became effective in 1987.

A broad consensus emerged that the guidelines were too high, and downward departures were common; but the 2003 Feeney Amendment made it harder for judges to depart downward, imposing de novo review on appeal.

“The bottom line was that very stiff sentences were the norm, and there was nothing that could be done about it,” Filip said. That is, until the U.S. Supreme Court concluded in 2005 that the guidelines were advisory only.

Filip note that the scholarly commentary since the Booker decision has been highly favorable, that district court judges welcome the discretion, and defense attorneys are pleased with the results.

But he questioned whether the return of discretionary sentencing is such a good thing. While excellent legal judgment may be a prerequisite to becoming a federal judge, Filip argued that legal judgment does little to qualify a judge to make the moral judgments that sentencing requires.

Accordingly, judges should take a modest view of their own moral judgment before departing from the norms, Filip maintained.

He noted that information available at sentencing is often slanted, and is a poor guide as to whether a defendant will reoffend. While a defendant might present three letters attesting to his good moral character, the judge has no way of knowing whether dozens of other persons were asked, but refused, to write such letters.

Also, when victims testify at sentencing, the defendant is likely to receive a longer sentence; yet a common reason for victims not to appear is fear of the defendant.

Citing his own experience as a reason for judges to take care, Filip said, “Some defendants I thought were sincerely contrite quickly reoffended,” while others he thought would soon be back in court were successfully reintegrated into society.

Filip also warned against a return to “roulette wheel” sentencing, in which the assignment of a judge has more effect than the actual facts of the case.

“Current scholars forget what led to the guidelines in the first place,” he cautioned.

Solutions

Filip made three suggestions for maintaining respect for the law and avoiding corrosive disparities in sentencing.

First, he advised district courts to get together to at least discuss sentencing. “There’s a great value in collaboration, or at least discussing the avoidance of disparities.”

Second, he advised the sentencing commission to change guidelines when it sees a lot of sentences outside a particular range.

Third, observing, “Disparity promotes disrespect for the law,” Filip said judges should consider the systematic benefits of uniformity before departing from the guidelines.

Michael O’Hear, a professor at Marquette who teaches sentencing law and publishes extensively on the subject, agreed that uniformity is an important consideration.

“But my concern is that the guidelines are poorly drafted — some more than others,” he said. “By and large, they are too harsh, and insufficiently take into consideration the defendant’s role in the offense, and state of mind. … [T]hey place too much emphasis on things like drug quantity and the amount of the economic loss. … In many cases, they are just clearly off the mark.”

However, O’Hear said Filip is “exactly right” in suggesting that the Commission change the guidelines when it sees frequent and large departures in particular types of cases.

While uniformity is an important value, “courts must realize the guidelines are flawed, and shouldn’t disregard those flaws where they are pronounced.”

A webcast of the event can be heard here.