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Sentencing Guidelines
Poole
We're having tremendous problems throughout the criminal courts of the country now with the guidelines that they have.
Hicke
Sentencing guidelines?
Poole
Yes, the sentencing guidelines. What really happened is that the Congress has decided that federal judges were doing what
judges have done from time immemorial when Solomon, as a judge, had that baby and said he would cut it in half. They built
up quite a case for the proposition that federal judges were deciding criminal cases unevenly. One judge would give a defendant,
where there's a maximum let's say of twenty years, he may give him nineteen years, and the other one might give him seven
years. It's hard to know which are oranges and apples in that barrel, and I think most of what Congress used in its terrible
horror stories that accompanied the debates on the sentencing guidelines were artificially carved out. You can get all kinds
of horror stories if you look for them. And I suppose we'll always get them. You get them in the guidelines too. The idea
that somehow there is an administrative body with Solomonic wit and information that is able to provide for all of the human
exigencies that may have to be decided in the context of federal trial litigation is nonsense, just utter nonsense. That's
one reason that I am not on a committee of the Judicial Conference of the United States.
I was on the Criminal Law Committee. We met with the Sentencing Guidelines Commission at a time when the guidelines had not
yet become law, and there was a strong urgency on the part of many federal judges to hold off doing it, as they had some years
earlier successfully importuned Congress to do with respect to the Speedy Trial Act. The Speedy Trial Act also became politicized.
There are provisions in the rules and, of course, the Constitution itself calls for a just trial, and a trial that is long
delayed cannot be a just trial. So Congress enacted the Speedy Trial Act, which in effect set up some points that had to be
considered before continuances could be granted in criminal cases. If the case exceeded the time periods—not in a situation
where the defendant could be held to have agreed or gone along with or been responsible for it—then the defendant's case was
dismissed. I think it was seventy days or something like that. So the federal judges and a lot of other people had made strong
representations publicly and to the Congress to hold off the time before making these things the law.
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In the meantime, there were ongoing projects in different district courts in which all cases were being tried as if the guidelines
did exist. The Congress gave a period of grace on that, and then at the urging of many of the federal judges and scholars
and professors of law gave further extension. The same thing happened on the guidelines, and so the commission was going around
the country—it was this commission that was appointed to draw up the guidelines. They had a big staff. The commission was
going around the country selling the value of the guidelines. At the time, I had been appointed by Chief Justice [Warren]
Burger to the Criminal Law Committee, and I was there. We were to meet with the Guidelines Commission out in Montana. We went
there and there was a whole lot of pressure on the members of that committee, but there were a couple of us who—
Hicke
From who? The chief justice?
Poole
Well, some, yes, from the chief justice. But I think mainly it was because some of the iron men in the United States Committee
on the Judiciary were trying to get this thing through. To accomplish that was going to be the end of all of our travail in
this world.
Hicke
So this is Congress you're talking about?
Poole
There were people who believed really, sincerely believed, and you could document a lot of worst cases in which they believed
that federal judges' sentencing was disproportionate. Sentencing has always been disproportionate, whether it was the sword
or otherwise. The commission scheduled this meeting with us out in Montana and we went there. There was a pitch made by those
of us on the committee who remembered how the Speedy Trial Act thing had gone. Actually, the fact that they had gotten a continuation
of the effective date of the Speedy Trial Act helped a lot. We were going to have to throw out a whole lot of cases if they
didn't do it. There had always been some provisions that mandated a speedy trial, but seldom was that provision of the Federal
Rules of Criminal Procedure ever put into practice.
The guidelines were much more horrible things than the Speedy Trial Act. I never got concerned that— We had big calendars.
When you're running three or four hundred cases, you've got a large criminal calendar, or it could be a criminal and civil
calendar. You not only had to try the criminal cases, but you had to give the civil litigants a chance too. I wasn't as much
concerned about the Speedy Trial Act furor as I became years later with the sentencing guidelines. When it finally came down,
after discussion had been had out there in Montana, and then they took a vote on it, and, by George, there were only two of
us who stayed
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until the bitter end, voting for a continuance of the effective date.
Hicke
Only two of you on the J.C.U.S.?
Poole
Only two of us on that committee. Everybody else voted to have it put into effect right away. The committee had, as I remember,
about thirteen to fifteen members, and Steve Breyer was the vice chairman of the committee, and the chairman was a person
who had been appointed by the senator from South Carolina. Anyhow, we argued it quite at length, and finally I became the
only one holding out. I continued to hold out, and it passed, with one voting against it. That would have been around about
July or maybe even August of 1989. I think it was '88 or '89.
Chief Justice Burger retired; so we then got some communications from the new Chief Justice—Rehnquist. Rehnquist decided that
the structure of the Judicial Conference of the United States was too unwieldy. I think he was correct in that. It had become
a place where old crusts gathered, and there were six-year terms, so he decided to streamline it some. He wrote us—all the
members of the Judicial Conference Committee—and told us that he decided to reduce—of course, whatever the chief justice wants
to do, for the most part, the Conference goes along with it—reduce it from six-year terms to three-year terms. He sent me
one of those letters, and he said that there would be three-year terms. The terms would be three years, and in order to be
fair, they would provide that the terms of the present members of these committees would be for a maximum of three years.
So they divided them into three parts. One third had three-year terms, one third had two-year terms, one third had one-year
terms, and I think there were some who just went off, or were ready to go off anyhow. So the letter he sent to me explained
this, and he informed me that he was pleased to announce that I would be reappointed for a one-year term.
So, he said, if you have any questions about this, please write me and let me know. I thanked him. I sent him a letter thanking
him for his consideration, and I told him that I don't have any quarrel—some of the people had complained that it was too
short a time—I said I don't have any quarrel with the length of time. I will not attempt to challenge what you have done.
So far as expressing myself on the downgraded committee structure, I said you know what you can do with that. [Laughs] I left,
and I haven't been on a Judicial Conference committee since.