The difficulty for the sentencing debate is that, there at least, Breyer seems more an emotivist than a best opinion theorist. Breyer's basic difficulty is that he cannot see how discretionary sentencing could be just. And the reason he gives in his Blakely dissent is the classic canard about normative judgments: "The length of time a person spent in prison appeared to depend on what the judge ate for breakfast on the day of sentencing."As I read the post the gist is that indeterminate sentencing is more rational than determinate because the judge can consider a host of factors and balance them properly. A determinate sentencing scheme, operating as a code, only gives the previously determined values for various legislated factors; therefore, it can neither reach all pertinent facts nor arrive at a just evaluation of the fair weight which should be given to each factor in the particular case.
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To Breyer, this means that a just sentencing system has to be rule-bound (the Guidelines are rules, not standards) in order to be just, fair, and equal.
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There is another way in which metaethical mistakes have affected Breyer's thinking on sentencing. He insists that there is no difference between the reasons a judge might invoke to justify a discretionary sentence and the reasons a legislature or sentencing commission might invoke, in rule form, to justify determinate sentences. But there is a difference. When a "sentencing factor" is invoked by a judge, he uses it to make a sentence more fine-grained . . . He is closing the gap between informal moral judgments and formal legal judgments. When a "sentencing factor" is made part of the positive law by a legislature or sentencing commission, there is, necessarily, something entirely different going on. The same fact or consideration is being incorporated into the positive law. The result is unwieldy law, and the profound difficulties encountered by the federal sentencing guidelines.
As a philosophical position I think it's dead on accurate - as long as you are talking about one judge. However, rational men can differ greatly on all sorts of factors to be considered in sentencing. The hope of the guidelines was that it would even out the sentences between "Hang-em High" Roy in the 5th Circuit and "Berkley Bob" in the 9th. All sentences would end up in a fair and balanced middle ground.
The failure of the guidelines is that it did not factor in politics. The Justice Department is a constant presence in the ears of the congressmen, telling them of all the horrors which must be taken care of by stiffening the guidelines and putting more and more judicial power in the hands of the prosecutors. The congressmen don't understand and hence things like the Feeney Amendment (if you believe Feeney understood what he did go watch the video referred to here: the congressman is clueless). As well, extra punishment is heaped on the perceived worst crime of the moment - for instance punishment for possession with intent for certain levels of crack cocaine might be made to carry disproportionate amounts of punishment if a basketball star dies from an overdose. One of the worst problems is that errors can never be fixed because that would make legislators look weak on crime. In the end, the political effect will always be to make the guidelines tougher and tougher. Therefore, there they are not a fair, balanced, middle ground; they are harsh and unusually long punishments which are not appropriate.
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