It’s time to rewrite or junk entirely 18 U.S.C. § 3553(a)

The pendulum swings.

It is now fashionable to be “soft on crime” rather than “hard on crime.” This is largely because being hard on crime has become ridiculously expensive. I get that, and, in fact, agree with it. However, before we provide group hugs to the special little snow flakes (each one is unique don’t you know) who will reside in our federal prisons, we ought, at least, to know what goals we seek to achieve when we send them to federal prison.

From 18 U.S.C. § 3553(a), here are what judges are supposed consider now regarding the goals of sentencing:

(a) Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.1

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

If you read these goals and try to apply them seriously you will end up insane. They are inherently contradictory. They provide no meaningful guidance to the sentencing judge.

If  you believe that federal judges are like Platonic guardians imbued with the powers that only the elite can possess, these goals are perfect. Essentially, the federal judge is told to do the right thing. The Supreme Court’s line of cases (e.g., Booker) punctuates that point by making the Guidelines irrelevant for the sentencing judge inclined to sentence without meaningful external constraint. On the other hand, if you believe, as I do, that federal sentencing judges require specific direction from Congress because (1) that is the democratic way and (2) federal judges are no more smarter when it comes to sentencing than the reasonably well-informed lay person, then it is clear that we must junk or rewrite section 3553(a).

In sum, I don’t care whether section 3553(a) is rewritten or junked entirely. If Congress elects to rewrite the statute, so long as the statute sets consistent sentencing goals, I don’t care what goals Congress picks. If Congress junks the statute (or leaves it unchanged), and, by so doing, proclaims that we federal judges are to pick the goals that we think best, then that’s fine too. I just want to know what I am supposed to do at sentencing. Is that too much to ask?

18 responses

  1. I think your meds are getting the best of you. Buts that great because I am much more concerned about your health, getting cured, and your much longer tenure on the bench than I am in challenging this post. 😄

  2. Judge:
    My take? As simplistic as it sounds, sentencing represents (just) three objects, listed in my own personal, hierarchical order: 1) punishment; 2) rehabilitation; and 3) deterrence. First and foremost, the defendant is being punished for having violated the law and, as a result, must be segregated in a prison where he/she can be no threat to the general public. It seems right to make this the first object of sentencing. Secondly, while in prison, the defendant may avail himself/herself of those resources which might cause him/her to seek another way of life besides criminality, i.e., education and/or training intended to cause the defendant not to again choose criminality. Finally, sentencing might (and I stress that word) deter others outside of prison from choosing to commit the same crime(s) and suffer the same results. However, of the three objects, this one is–by far–the least important as it is the most speculative. To that end, I am reminded of the axiom of the famous Italian penologist, Cesare Beccaria, who stated that it is the certainty of punishment, rather than its severity, which will deter crime. Accepting this axiom, the primary purpose of sentencing ought rightly to punish for wrongdoing, and the other two objects be seen as necessarily secondary in nature. Now, if I could only get the Solons in the Congress to see things my way…

  3. Mark,

    Seriously, and my meds aside, don’t you really think the statute is far too broad to be rationally implemented?


  4. Robert,

    If I were a legislator, I would pick your goals one and three for prison sentences but not two. I don’t believe that rehabilitation is an achievable goal for federal prisoners while they are in prison. I have seen success regarding rehabilitation when the prisoner is on supervised release and a USPOs can engage in more intensive and proactive involvment in the offender’s life while the prisoner is in the free (and real) world.

    All the best.


  5. If you read these goals and try to apply them seriously you will end up insane. They are inherently contradictory. They provide no meaningful guidance to the sentencing judge.

    Nah. Linear programming will drive you to the optimal sentence every time. You just need to argue over the weights to be given to each of the seven considerations.

    TIFIFY. I drink Bitburger.

    Eric Hines

  6. That these sentencing instructions are challenging, multi-dimensional and lack any clear answers in most cases, Judge, does not mean they provide “no meaningful guidance.” Moreover and most importantly, 3553(a) provides a template for the parties to make focused arguments to you based on case-specific facts that must be tethered to traditional sentencing goals and considerations. And the parsimony/goldilocks requirement of the preamble, as well as separate “give reasons” requirement, should help ensure that you are always striving to decide and explain to the parties why you think a particular chosen sentence is “just right.”

    I read this post as a variation of shooting the messenger given that most everyone agrees that sentencing is very hard, and rarely will one “right” sentence be obvious in any case. Congress in 3553(a) sets out a reasonable list of what hard sentencing issues it wants to make sure you judges (and the lawyers before you) discuss and consider each time you bring state power to bear — and you them complain Congress is not making your (for-life) job easier by providing a more simple (dare, I say, too simplistic) sentencing script to follow so that you do not have to think quite so hard about all the hard issues set out in 3553(a).

    Of course, mandatory minimums (as well as maximums) provide “specific direction from Congress” in a “democratic way” which even an uninformed lay person could figure out. Do you prefer having to apply 3553(a) or having to apply an MM in any case? Obviously, those are not the only possible options, but they seem to be the only ones that Congress seems likely to embrace in the near future.

  7. Doug,

    First, thanks for your engagement. Second, I don’t like mandatory minimums or maximums–I would rather have to deal with section 3553(a). Third, it is not that the list is crazy. Rather, the list is litany of all the sentencing goals criminologists have thought up even those that are contradictory. It is the contradictory nature of the list that draws my objection. An example: A very good man does a very bad deed. Apply section 3553(a) in that circumstance. You can’t. It is not that the task is hard that bothers me. It is that I have been told to do two things at the same time that cannot possibly be done.

    All the best.


  8. What is contradictory about trying to give that good man a sufficient but not greater than necessary punishment that should seek to provide just punishment, achieve adequate deterrence, incapacitate him as best as possible and provide need care, too? Unless you think deterrence necessarily requires unjust punishment, or that a just punishment won’t ever incapacitate, these goals are not inherently contradictory for the good man or the bad man. They are all hard to measure with any precision or much confidence — but that is why judges are expected to use thoughtful judgment, not a slide rule and abacus, when dealing with the inherently human challenge of imposing punishment for a person’s wrongdoing.

    Again, I am not saying following this list of general purposes is easy or yields obvious answers, which is why we do not have sentencing done American Idol style with call-in votes. Rather, a thoughtful judge is expected, after hearing thoughtful arguments from informed counsel, to reason through to the best outcome in each case using human judgment and wisdom grounded in the facts of the case and the broad guidance set forth in 3553(a).

  9. I don’t envy any judge that has to grapple with this. At the same time, I doubt this particular Congress can or would be able to straighten things out. From my perspective, it appears that Congress is trending more towards writing overly broad legislation as opposed to the type of legislation needed to resolve conflicts within this statute.

  10. P.S. Take care of your “baby” on the bench and here.

    Oh yeah fuck the fucking fuckers that can’t get their head around the living and dieing.

    Hope you are taking all the BS sympathy and “get wells” as armor and perpetration to get your shit in order.

    This round or the next.

    Bring it Judge!

  11. John,

    That’s wonderful (and true). Thank you!

    I intend to adopt the lyrics as my sentencing mantra.

    All the best.


  12. Doug,

    It sounds to me that you see in the statute the prime directive to engage in common law judging. If that is true, then we should junk the statute and the Sentencing Commission and be honest about what we expect federal judges to do at sentencing. That is, do whatever’s right.

    If that is what Congress wants, I am down with that. I can pick and choose sentences (“using human judgment and wisdom”) with the best of them. You and others may, however, not like what I select if I am left to my own devices.

    All the best.


  13. Dear Rich,
    No I don’t and we exercise much braoder discretioon in many other phases of our work. Sentencing requies us to weigh that whcih cannot be measured. I am comfortable with that.

  14. Mark,

    Let’s be honest then and declare that sentencing is entirely a matter of discretion so long as the sentence is within the punishment range set forth in the statute that defines the offense of conviction. Why do we need section 3553(a) or the Sentencing Commission if that is true?

    All the best.


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  16. Because a judges discretion is informed by the Guidelines, and justly cabined by the 3553(a) factors. No different than the myriad of othe multi- factor tests we apply daily. I am not in favor of unlimited discretion but comfortable with applying the 3553(a) factors. Sure beats the “grid and bear it ” approach pre Booker.

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