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"Open Up, Your Honor; Tell Us Why You Gave That Sentence"--A Commentary by Andrew Goldstein


This piece was originally published in The Washington Post on February 13, 2005.

Last month, a federal judge in New Jersey made local headlines in what could go down as a landmark case of bad timing. As Congress was scheduling hearings on the recent Supreme Court decision giving federal judges more discretion in sentencing criminals, U.S. District Judge William Walls kicked the public out of his Newark courtroom and locked the doors before sentencing a drug money launderer. The next day Walls tried to justify his action by claiming that because both the defense attorney and the prosecutor had agreed to close the courtroom, "any reasonable jurist" would have done the same.

But that's precisely the problem. Deciding whether to send a criminal to prison and for how long should be the most public thing courts do, regardless of the desires of the parties involved in a particular case. Secrecy removes accountability from the process and weakens public confidence in the fair-mindedness of the judiciary. It's also bad politics. The last thing federal judges need to do right now is to give Congress an excuse to take away their newly granted sentencing discretion.

While it's rare for judges to literally lock a courtroom, especially in an ordinary criminal case, it is an all-too-common practice for them to keep written explanations of their sentences from the public. In the vast majority of cases, the only way outsiders can understand the intricate choices judges make -- such as why Martha Stewart got five months in prison while investment banker Frank Quattrone got 18 months for the same crime (obstruction of justice) - is to attend the actual sentencing hearings or take on the herculean task of digging through court transcripts, which are sometimes thousands of pages long. Even then, the rationale isn't always clear.

The end result is that the public knows almost nothing about why federal judges do what they do -- and it wasn't supposed to be this way. One of the goals behind the 1984 Sentencing Reform Act, in addition to curbing disparities in sentencing, was to bring transparency to the system by requiring judges to state in open court the reasons underlying their sentences. The idea was that if judges were forced to justify themselves on the record, the public would become better informed and, for the first time, appellate courts would be able to review the basis for these decisions. The required disclosure would also assist the new U.S. Sentencing Commission, which was established to write federal sentencing guidelines and monitor how closely judges followed them.

In response to this congressional mandate, the administrative office of the federal judicial branch created a four-page form for judges to fill out during sentencing called a "Statement of Reasons," which, in an effort to increase compliance, was shortened to a single page in 1990. But the move toward transparency took an abrupt turn in 2001, when the Judicial Conference, the policy-making arm of the federal judiciary, voted to make these forms off-limits to the public. The stated purpose for the change was to protect cooperating witnesses from retaliation by preventing the bad guys from finding out who got a reduced sentence for helping the feds.

But another reason, according to several judiciary insiders, is that judges are tired of being easy targets for politicians looking to appear tough on crime. Just over a year ago, one federal judge in New York got so fed up with congressional attacks on judicial sentencing discretion that he took the extreme step of putting a blanket seal on all of his sentencing documents.

In the judges' defense, they aren't the only ones steering clear of the public as they exercise sentencing power. After crafting hundreds of rules with little or no stated rationale, the Sentencing Commission got Congress to pass a law preventing anyone from subpoenaing records of its deliberations. Meanwhile, the Justice Department, which in a sense exerts the most power in the system by deciding whom to indict and for which crimes, refuses to publicly explain its charging and plea decisions.

But perhaps the worst culprit of all is Congress, which two years ago passed the most significant -- and draconian -- sentencing bill since the creation of the guidelines after just 15 minutes of debate in the House of Representatives. The measure tightened guidelines and made it easier for the government to win appeals of sentences that departed from them. Ordinarily, legislation of this sort is reviewed by both the Judicial Conference and the Sentencing Commission before going to the House Judiciary Committee for hearings. Instead, the law, based largely on spurious data, was drafted in private and was tacked onto another crime bill as an amendment.

Within this closed-door landscape, however, there are a few rays of light. Federal judges in Massachusetts post their statements of reasons online in a public database. By simply leaving out or redacting any information that could endanger cooperating witnesses, the Massachusetts bench has neatly dismissed the nominal basis for the Judicial Conference's policy of keeping out the public.

Even more progressive is the state system in Pennsylvania, which since 1999 has not only required public disclosure of sentencing rationales, but also releases statistics on every judge's sentencing practices. This is no small feat considering that judges in the Keystone State, unlike their tenured federal counterparts, have to get reelected every 10 years. Many Pennsylvania judges initially opposed the system out of concern that their opponents -- and the press -- would misconstrue the data, but so far their worst fears haven't come true. Moreover, according to Steven Chanenson, a professor at Villanova University School of Law and a member of the Pennsylvania Commission on Sentencing, the state's public-information policy has already made sentencing more rational. "When we understand more about what is going on in the system," he says, "we get better results."

If such transparency were universally adopted, judges could see and learn from the experiences of their colleagues, leading to the kind of common-law development found in nearly every other field of jurisprudence.

And if that's not enough of an incentive, judges should consider the almighty motivator of self-interest. The Supreme Court's monumental ruling in January gave judges, so long as they choose sentences that are "reasonable," the leeway to ignore the federal sentencing guidelines that had been mandatory for nearly 18 years. While many of those seated on the bench expressed delight at no longer being handcuffed by rules they perceived as unfair or excessively cruel, some members of Congress declared their intention to clamp down on this new era of judicial discretion, potentially by enacting mandatory minimum penalties across the board. Such an outcome would leave judges with little power-- and would be a disaster for anyone who believes that not all crimes and not all criminals are the same.

Unlike politicians, judges can't grandstand at news conferences or hold hearings on Capitol Hill to defend the importance of individualized justice. But they can wield the power of the pen. At a seminar at Yale Law School this month, Nancy Gertner, a federal judge in Boston, said: "It's hard for anybody to criticize me when I've written 60 pages justifying what I've done."

Sufficient explanations can be a lot shorter, too. Last week, for example, no one lambasted a federal judge in Indiana when he sentenced a drug offender to five years less than the guidelines prescribed. That's because he wrote -- and quickly made public -- a thoughtful and persuasive 10-page opinion describing why he didn't give a 57-year-old Army veteran, who had become addicted to crack cocaine, a lengthy prison term that would have kept him confined until the age of 71. The judge cited the veteran's age, his absence of a criminal record prior to his crack addiction, and the role that his supportive family might play in rehabilitation.

Now more than ever, as Congress reexamines federal sentencing law, it is crucial for judges to openly explain their sentences, especially those that don't follow the guidelines. Otherwise, the public -- and Congress -- will have no way of knowing whether these sentences are based on reasoned judgment or caprice. In the end, if judges don't allow the public to scrutinize their sentencing decisions, they may find that they're the ones locked outside the process, with no discretion at all.

Andrew Goldstein, a former staff writer for Time magazine, is a third-year student at Yale Law School.