Brody Award Panel: Federal Sentencing Mandates Limit Judges


By Robert Gillespie

The federal sentencing guidelines established in 1987 made it a lot tougher for judges to display Solomonic wisdom, said Colleen Khoury '64, dean of the University of Maine Law School. Moderator of a panel of state and federal judges, attorneys and experts in the law who spoke at Colby on March 30, Khoury led off the discussion with a question: are the federal sentencing guidelines really guidelines, or are they a straitjacket?

Maine state Rep. Janet Mills, formerly a district attorney for Androscoggin, Franklin and Oxford counties, said her views on the controversial sentencing guidelines changed one day when the late justice Morton A. Brody sentenced an arsonist to probation instead of the stiff jail term she asked for. Mills said the sentencing guidelines, in failing to consider individual circumstances as Judge Brody did, "took humanity out of it." She didn't always agree with Judge Brody, "but he was fair," she said. "That's why we have judges."

The panel discussion was held in conjunction with the presentation of Colby's Morton A. Brody Distinguished Judicial Service Award, which recognizes an outstanding U.S. federal or state judge who embodies the same qualities of integrity, compassion, humanity and judicial craftsmanship exhibited by Brody during his career as a U.S. district court judge. The 2004 Brody Award honoree, Richard S. Arnold, senior circuit judge of the U.S. Court of Appeals for the Eighth Circuit in Little Rock, Ark., unfortunately was ill and unable to attend.

The six-member panel, sponsored by Colby's Goldfarb Center for Public Affairs and Civic Engagement, included Massachusetts District Court Judge Nancy Gertner, who told the standing-room-only crowd in Lovejoy 100 that the sentencing guidelines came about because judges had no training in sentencing and sentences varied from court to court. But the guidelines "have forced us to deal with human beings as categories and numbers," she said.

The sentencing guidelines are "a spreadsheet": across the top, the crime; down the side, the numbers, which determine the length of a sentence, said David Beneman, executive director of the Maine Association of Criminal Defense Lawyers. "We have turned into a retribution machine." The 1987 federal guidelines shifted power from the judicial branch to the executive branch, Beneman said, calling the guidelines "the worst law in the last twenty years."

Evert Fowle, district attorney for Kennebec and Somerset counties, and U.S. Attorney Paula Silsby both said they have managed to function within the guidelines in Maine. There are "cases in which guidelines work a great injustice," Silsby admitted. "But you try to avoid Draconian standards",by claiming, for example, that all the charges filed can't be proved, thereby watering down the sentence.

Fowle said that in 95 to 98 percent of cases, the court "has leeway" in sentencing and only 2 to 5 percent of cases involve federal guidelines. The problem, according to Fowle, is that offenders do not serve out entire sentences, which creates public cynicism and distrust of the system. "If we're giving a sentence of three years, let's serve as close to three as possible," he said.

Maine Superior Court Judge Arthur Brennan '68 said sentencing is "a lot tougher when you look somebody in the eye." And sentencing may involve knowing "when to let up",for instance, if an offender has reunited with a family and has a support system and a job.

"This is not science, folks," said Brennan. "This is art."