Following the reasoning of my colleague Judge Bataillon here in Nebraska and Judge Gleeson in New York, my good friend Judge Mark Bennett has rejected the methamphetamine Guidelines because they lack an “empirical” basis. See “Iowa judge calls sentencing guidelines for meth dealers ‘flawed‘” at SL&P. All three of these judges are thoughtful people, and Judge Bennett’s most recent opinion deserves a careful look.
These judges rejected drug Guidelines because they lack an empirical basis. Because big words confuse me, I wonder what those judges mean. I have three questions for those folks who will make similar arguments:
- When someone writes that a Guideline lacks an “empirical” basis what exactly does the word “empirical” mean?
- Can the writer provide examples of drug Guidelines that are “empirically” based, and, if so, can the writer explain the “empirical” basis that was used to craft the Guideline?
- Having rejected a drug Guideline as lacking an empirical basis, is the decision to reduce all sentences otherwise called for by that Guideline by 30% (as Judge Bennett and Judge Gleeson suggest) “empirically” based? If not, why not?
When we write about the lack of empiricism in sentencing Guidelines, we should have a firm understanding of what “empiricism” means. I wonder if we do.