For two centuries, federal judges exercised wide discretion in criminal sentencing. This changed in 1987, when a hopelessly complex bureaucratic apparatus was imposed on the federal courts. Though termed Sentencing "Guidelines," the new sentencing rules are mandatory. Reformers hoped that the Sentencing Guidelines would address inequities in sentencing. The Guidelines have failed to achieve this goal, according to Kate Stith and José Cabranes, and they have sacrificed comprehensibility and common sense.
Fear of Judging is the first full-scale history, analysis, and critique of the new sentencing regime. The authors show that the present system has burdened the courts, dehumanized the sentencing process, and, by repressing judicial discretion, eroded the constitutional balance of powers. Eschewing ideological or politically oriented critiques of the Guidelines and offering alternatives to the current system, Stith and Cabranes defend a vision of justice that requires judges to perform what has traditionally been considered their central task—exercising judgment.
At first glance, one is tempted to conclude that this rather imposing work is some kind of manual for judicial policy wonks, with the literary quality of a metropolitan phone book. On the contrary, it is actually an impressive illustration of public policy analysis at its finest. As they weave their tale of how our society still struggles with the fear of unbridled discretion on the part of federal judges, Stith (Yale Law Sch.) and Cabranes (U.S. Court of Appeals, Second Circuit, NY) scrutinize the power and discretion of federal courts and federal judges; the public's concern with law and order; separation of powers; the impact, intended and otherwise, of legal reforms; and more. Of special significance is the authors' analysis of the impact of mandatory sentencing guidelines on the role of the judge and on the law itself.-- Stephen Shaw, Northwest Nazarene College