President Obama has nominated Judge Charles Breyer of San Francisco’s Northern District bench to the US Sentencing Commission. This could be kind of fun for him as his brother, US Supreme Court Justice Stephen Breyer, was a member of the original Sentencing Commission from 1985 to 1989.
The Sentencing Commission was created to inject more fairness into the criminal sentencing process. Back in the 1980s it seemed to many that the personality and philosophy of a judge could have a significant impact on the prison sentence doled out.
In a 1998 speech, Stephen Breyer pointed to a 1974 experiment in which 50 district judges in the New York-based 2nd Circuit each sentenced 20 offenders based on the same set of pre-sentence reports. The hypothetical results were startling. Where one defendant got three years another was sentenced to 20 years, and where one judge gave a suspended sentence for an immigration crime, another issued a three-year sentence.
Congress established the Sentencing Commission and it created categories of offenders and offenses to produce a scale of factors that would give guidance to judges on a sentencing range.
What it produced in the years immediately after its release was lots of angry judges and lots of litigation. For example, for years defense lawyers battled the disparity in sentencing guideline ranges for convictions related to powder cocaine (usually white guys), versus much more severe sentences for convictions related to crack cocaine (usually black guys.)
And district judges grumbled that it curtailed their ability to fashion sentences that fit a particular crime and defendant.
There have been fights over “mandatory minimum” terms. By 1991 Congress had created nearly 100 separate mandatory minimum provisions, according to the Justice Stephen Breyer. The commission also wrestled with how much to discount a sentence for “substantial assistance” to the government.
All this should make for interesting dinner conversation at Breyer family get-togethers.
Judge Charles Breyer is nominated to a three-year term and his appointment requires Senate confirmation.
Breyer, 70, has been on the San Francisco bench since 1997 when he was appointed by President Bill Clinton.
He’s been active in court administrative and governance issues. He’s a member of the national Judicial Panel on Multidistrict Litigation and has a judge representative to the Executive committee of the Judicial Conference of the U.S., the governing body for the federal courts nationwide.
He spent 23 years in private practice between joining the bench. He also served as an assistant special prosecutor on the Watergate Special Prosecution Force from 1973 to 1974.