After the Implosion: Trailing-Edge Guidelines for a New Era

In the Fall of 1989, I sat at a worn wooden desk with gum stuck to the bottom, listening to Professor Daniel Freed talk about the federal sentencing guidelines. I was captivated. Here, it seemed, there was a system of sentencing which demanded fairness, regularized punishment, and created a normative value for various wrongs. Professor Freed and virtually every other person in the room were strongly opposed to the guidelines,' but I stood up for them, rebutting every criticism. It was a belief in the federal guidelines and their seeming moral certainty that, in part, led me to later become a federal prosecutor in Detroit. There, I used the guidelines as a tool in cases against drug dealers, bank robbers, and counterfeiters. At every turn, I justified the guidelines as a product of democratic processes and a proper check on outlandish judicial discretion. Then, something happened. I was preparing for the sentencing of yet another crack defendant, a 19-year-old first offender who was caught in an abandoned house with a little over five grams of rocks in little plastic bags. He also had a gun. His attorney was a federal defender named Andrew Densemo, a veteran of many similar cases. The judge was Anna Diggs Taylor, at that time the Chief Judge of the Eastern District of Michigan and a well-respected former prosecutor. The case was called, and I made my appearance. When called upon, I stated a few simple, unavoidable facts-that the defendant faced a mandatory ten year sentence, five for the crack and five for the gun, and that the sentencing guidelines required at least that much time. I noted that the defendant had been convicted at trial, and returned to my seat, confident in my knowledge that there was nothing Andrew Densemo could say which would change the inevitable sentence. Chief Judge Taylor looked down at Mr. Densemo. "Are you going to make the usual futile argument?" she asked sadly. He nodded, and walked to the podium. For the next twenty minutes, he launched a precise, thorough, and passionate attack on the provisions of the statute and the sentencing guidelines which required such a sentence. He pointed out that the bank robber whom Chief Judge Taylor had just sentenced had received much less time; that the crack