What the World Needs Now, Is Law, Just Law

In the midst of this winter of our discontent from Iraq to the foreclosures it is heartening to see evidence in the midst of some of the world's most troubled spots of a strong and popular devotion to law. Consider the case of Pakistan, where a growing body of middle class citizens are taking the streets in defiance of the Musharraf regime and its state of emergency, to demand the restoration of an independent judiciary. (Read an AP story printed in the NYT). In the midst of a nation torn between Islamists and a pro-US government devoted to the war on terror, the rule of law is emerging as a third force.

Consider also the case of Venezuela. There, in a surprise, socialist strong man Hugo Chavez lost a significant portion of his following among the poor, enough to lose a close vote on constitutional reforms that would have greatly expanded his power to rework Venezuela's Constitution. Many of his supporters seemed to feel that even though they like his policies, they did not want to see him unrestrained by the burdens of constitutional government.

As we approach Christmas and its promise of universal love, perhaps a more realistic goal for our time is to strive for universal law.

Supreme Court Watch: Empirical is the New Reasonable

This week's 7-2 decision by the United States Supreme Court marked another significant step in the Court's recent effort to remake federal criminal sentencing. At issue in Kimbrough v. United States, No. 06-6330, decided December 10, 2007,was whether a Federal District Court was "reasonable" in declining to apply the federal sentencing guideline's infamous 100-1 weight ratio of crack to powder cocaine in sentencing a drug trafficker dealing in crack.

The guideline for crack versus powder was set on the basis of a law passed by Congress in 1986, rather than through the United States Sentencing Commission, which generally establishes guidelines subject to Congressional approval. Here the Commission actually tried several times to reduce or eliminate the differential, only to be rebuffed in one instance and ignored more recently.

Writing for a 7-2 majority, Justice Ruth Bader Ginsburg contrasted Congress' harsh 100 to 1 rule with the methodology that the Sentencing Commission generally uses:

While Congress was considering adoption of the 1986
Act, the Sentencing Commission was engaged in formulating
the Sentencing Guidelines.7 In the main, the Commission
developed Guidelines sentences using an empirical
approach based on data about past sentencing practices,
including 10,000 presentence investigation reports.

In contrast:

The Commission did not use this empirical approach in
developing the Guidelines sentences for drug-trafficking
offenses. Instead, it employed the 1986 Act’s weightdriven
scheme.

The Court seemed to be contrasting the Commission's "empirical" method, with Congress political judgment about the seriousness of crack cocaine. The use of empirical here seems a bit problematic. After all, the Commission studied not the crack problem but the past behavior of federal judges. Their "empirical" results thus embody the collective judgment of the federal judiciary. Its not clear why that judgment should seem more rational than that of Congress on an issue of policy.

Of course the narrow question before the Court was only whether the District Judge was acting reasonably in rejecting the guideline. The Court seems to suggest that when it comes to rejecting guidelines, federal judges have more discretion when the guideline is not supported by empirical research. In short, empirical good, political bad.