Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip

I. THE POINTLESS FOREST AND THE POINTLESS MAN Around 1970, singer Harry NUsson went on an acid trip. He later reported that during this experience, he "looked at the trees and . . . realized that they aU came to points, and the little branches came to points, and the houses came to a point. [He] thought 'Oh! Everything has a point, and if it doesn't, then there's a point to it.'"1 Nilsson put these insights to good use, later producing an album and an animated film, both entitled The Point!.2 In ehher format, The Point! tells the story of Oblio, who along with his dog, Arrow, is thrown out of the land of Point because Oblio does not have a point on top of his head Uke everyone else. They are banished to the scary Poindess Forest, where they encounter the Pointless Man, another banished soul who welcomes them as they begin dieir journey. The Poindess Man, as drawn, has several pointy faces and actual arrows emanating from his torso, all pointing in different directions. Once Oblio enters the Poindess Forest and actually meets the socalled Pointless Man, Oblio has a radical change in perspective: "You see the Pointless Man did have a point; in fact, he had hundreds of them, all pointing in different directions. But as he so quickly pointed out, 'A point in every direction is the same as no point at all.'"3 Which (of course) brings us to Congress and federal sentencing. Congress has issued at least thirty-one separate directives setting general policy goals in criminal sentencing.4 While each of these policy goals has an individual purpose, when taken together they are as pointless as the Pointless Man. This Article contends that the federal sentence guidelines are directed in too many ways at the same time; as a result they reflect conflicting policies and have no moral center. The guidelines should be rewritten in accordance with a few well-articulated policy goals. Part II considers some of these thirty-one policy directives, which all point in different directions with different degrees of specificity, clarity, and import. In setting out what some of these policy directives seek, it becomes clear that federal sentencing policy resembles nothing so much as Nilsson's Pointless Man. Part III, in turn, describes some of the underlying conflicts between these principles. It then describes the effect of combining a thirty-one-point policy directive together with a strong mandate for uniformity. This project-putting a pointless mish-mash of policy directives together with a demand for uniform punishments-does not make much sense. Without a clear policy goal, uniformity is as likely to be uniformly wrong as it is to be uniformly right relative to any understandable principle or set of principles. What is the sense in having consistent and uniform sentencing if it is consistently and uniformly wrong? To insist on uniformity without principled directives to create those uniform results does nothing less than rob sentencing of any sense of real authority by making it morally indeterminate.5 Finally, Part IV suggests a do-over for federal sentencing, in which a new Sentencing Commission would start with a small number of reasonable policy goals and then re-make the guidelines in a way that meets those goals. Opponents to re-making the guidelines would no doubt (justifiably) fear the specter of greater discretion for judges being a feature of any new system. This "fear of judging," as Stith and Cabranes called it,6 is our modern equivalent of the Pointless Forest-we (through our legislators) are scared to enter a world where judges exercise independent discretion because we do not know everything that may lie in wait for us there. After aU, individuals, even individual judges chosen expressly for their superior discretion and judgment, can be unpredictable. Given the poindessness of current "policy," however, the prospect of reformed guidelines with individual judges more actively evaluating cases becomes more appealing. …