"Federal Sentencing Guidelines Criticized by a Key Supporter"

"Washington, Nov. 20 -- Justice Stephen G. Breyer, an architect and longtime supporter of the Federal sentencing guidelines, issued a detailed critique this week of how the guidelines were working and called for Federal judges to regain some of their traditional discretion to make the punishment fit the crime.

The result of the Sentencing Commission's work was a grid with 258 boxes, designed to calibrate 43 'offense levels,' measuring the seriousness of the behavior, with a particular offender's criminal history. There are also adjustments upward or downward for characteristics like the amount of planning that went into the crime, with more planning that went into the crime, with more planning yielding a longer sentence, and the defendant's acceptance of responsibility, which brings a shorter sentence.

In his speech, Justice Breyer called the guidelines 'simply too long and too complicated,' and added, 'There are too many words, too many provisions, too many distinctions.' He said the Sentencing Commission should act 'forcefully to diminish significantly' the number of different factors that the guidelines formula takes into account.

'Punishment is a blunderbus,' Justice Breyer said, adding: 'Ranking offenders through the use of fine distinctions is like ranking colleges or the 'liveableness' of cities with numerical scores that reach 10 places past a decimal point. The precision is false.'

Simplification of the guidelines that 'entails greater judicial discretion is appropriate,' Justice Breyer said, even though that approach might reintroduce some of the disparity in sentencing that the guidelines were supposed to eliminate. 'But the goal of the sentencing guidelines was not perfect, but increased, fairness,' he said." [Greenhouse L. The New York Times, November 21, 1998:A10]