OPEN UP, YOUR HONOR

Tell Us Why You Gave That Sentence

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.