Fifteen Years of Federal Guidelines Reviewed at the Yale Conference: What Would Success Mean?

Abstract

This Issue consists largely of FSROs Þrst publication of the proceedings of a major conference on the federal sentencing guidelines and summaries of the papers presented. The Federal Sentencing Guidelines Symposium took place on November 8, 2002 at the Yale Law School in New Haven, CT, and attracted a substantial number of federal judges, members of the U.S. Sentencing Commission and its staff, probation ofÞcers, public defenders, private defense counsel, U.S. attorneys and assistants, academics, and law students. Prior to the meeting, the conference organizersNa group of Yale faculty members (Dennis Curtis, Daniel Freed, Judge Nancy Gertner, Kate Stith) and law students enrolled in the sentencing seminarNprovided summaries and copies of the papers to be presented on the Yale website. The summaries are included in this Issue. Most of the papers can still be accessed in their entirety at www.law.yale.edu/outside/html/Centers/cen-sentencing.htm; a few are already published and are available through Westlaw or Lexis. The summaries of the panel discussion were expertly prepared for FSR by the group of studentsNCassidy Kesler, Susan Lin, Katherine Tang Newberger, Laura Provinzino, Michelle Schwartz and SoÞa YakrenNresponsible for much of the conference planning. A number of themNCassidy Kesler, Katherine Tang Newberger, SoÞa YakrenNalso presented their own research and participated as discussants, together with another current Yale law studentNMichael YaegerNand two former studentsNLaura Storto and Max Schanzenbach. Commissioner OONeill opened the November conference by asking whether the guidelines were actually working. It was a timely question because organizers of the conference, agreeing that guideline success was a central issue, had structured four panels to debate the antecedent question: how is OsuccessO being deÞned? For the past 15 years, and during the equivalent period prior to guidelines as well, sentencing reform has focused on judges and judicial discretion. In light of CongressOs expressed 1984 goal to reduce unwarranted disparity, the conference was structured to test whether judicial determinations have achieved that goal. To the surprise of few, the four panel discussions at the conference raised serious doubts whether the decisions of judges alone can be isolated as an adequate measure of guideline success. The panels looked at the question of guideline success from different perspectives: The morning panels focused on disparity in sentencing. While the Þrst panel looked at race and gender disparity, the second considered the effects of region and prosecutorial policies. Inevitably, the two different elements of disparity insuence each other, as the same prosecutorial policies may have a dramatically different racial impact in different parts of the country, for example. The afternoon panels considered purposes of sentencing. This topic is often viewed as highly academicNand there were some charges to that effectNbut the presenters tied the purposes discussion closely to the construction of the guidelines. Both panels, in different ways, revisited the question of what purposes the guidelines do and should pursue. The Þrst panel focused on the philosophical premises underlying the federal sentencing guidelines. The answer to this question would illuminate also the issue of disparity. Selection of a particular purpose, such as incapacitation, might explain some otherwise inexplicable sentencing differentials. The second panel