At his blog, Simple Justice, Scott Greenfield artfully takes apart what he calls “The Sentence-O-Matic 1000.“* That is, Scott skewers the idea that one can use a “machine” like the Sentencing Guidelines to sentence people. Yet he realizes that any sentencing system that is loosey and goosey invites arbitrary treatment. Scott ends his analysis with these thoughts, “So we’re back to the old adage, sentencing by whim of an individual judge is the worst system possible, except for all the others. Or as Mencken said, ‘for every complex problem, there is a solution that [is] quick, easy and completely wrong.’ I hate the capriciousness of judicial sentencing. I dread the consistency of the Sentence-O-Matic 1000 far more.”
In this post, I thought it might be “fun” to give readers of this blog an opportunity to sentence someone without the dreaded “Sentence-O-Matic 1000.” As a teaching technique, I once did this with some Assistant Federal Defenders and CJA panels members, and it turned out to be a useful exercise or at least I thought so.
Assume there are no longer Sentencing Guidelines–the “Sentence-O-Matic 1000” is kaput. As the judge, you must rely only upon the following “law,” that is: (1) the statutory range–in this example, a “crack” conspiracy where the range is 10 years to life; and (2) the factors set out in 18 U.S.C. § 3553(a). After a jury found the defendant “Jimmy” guilty of a conspiracy to possess with intent to distribute more than 500 grams of “crack,” here are your sentencing facts:
- Jimmie had at least two prior felony drug convictions.
- Jimmie ran the crack conspiracy with the help of his brother Jerry. At least five others were also involved in the business.
- Jimmie told the police that he was a “kind dope dealer,” but that was not true. At Jimmie’s direction, Jerry sexually assaulted, physically assaulted and sodomized Laurie with motor oil for failure to pay a drug debt and threatened to kill her if the debt was not paid by that evening. Both Jimmie and Jerry assaulted Odell with a baseball bat as part of the conspiratorial activity.
- Jimmie bailed out a minor female from juvenile detention and she became a coconpirator selling crack for the business.
- Jimmie obtained and submitted a false affidavit from a coconspirator as a defense to the prosecution.
- The conspiracy involved between 1080 and 1419.67 grams of crack. Jimmie personally cut and packaged some of it.
Now, understanding that you must sentence Jimmie to at least 10 years in prison, apply section 3553(a) to the foregoing facts. Go ahead, you sentence Jimmie. So you can’t cheat, now, please, write down the prison sentence you imposed. After you have written your prison sentence for Jimmie, look and see what sentence I imposed under the Guidelines by reading United States v. Johnson, 169 F.3d 1092 (8th Cir. 1999). As an aside, Judge Murphy wrote the opinion for the Court of Appeals–why does that matter?
What are your thoughts? If I were to tell you that today I would impose the same sentence without applying the Guidelines, and relying only upon § 3553(a), would you think my prison sentence just?
* For the “Super Bass-O-Matic ’76,” a machine that makes a hard task easy and that is a first cousin to the “The Sentence-O-Matic 1000,” see below: