Policy judgments at federal sentencing: aren’t they inevitable and mandated by Congress?

In discussion of post-Booker federal sentencing at the Yale Law School class I recently had the pleasure of attending, I was surprised to often hear the refrain that judges “should not make policy judgments” at sentencing.  I have long thought it was post-modern gospel that all judicial decision are, at some level, policy judgments.  But beyond this legal realist premise, it dawns on me that all judicial sentencing decisions plainly are, at some level, policy judgments informed by views on just punishment, crime control, procedural fairness, and other express and implicit considerations.

After Booker, the impact of policy judgments at sentencing is evident in many ways.  Decisions by some district judges to give the guidelines heavy weight obviously reflect a kind of policy judgment, as do decisions to apply a particular burden of proof or to increase a sentence based on acquitted conduct. Likewise, decisions by circuit judges to handle Booker plain error in particular (and diverse) ways reflect a policy judgment, as did the Supreme Court’s decision not to resolve the circuit split over Booker plain error standards.

As we reflect on these realities, it is valuable to appreciate that executive branch officials make policy judgments at sentencing all the time.  All prosecutorial charging and plea bargaining decisions involve, at some level, policy judgments informed by views on just punishment, crime control, procedural fairness, and a range of other express and implicit considerations.  Same goes, of course, for decisions about who gets sentence reductions for assisting authorities or which districts will have fast-track sentence reduction programs.  And, interestingly, we never hear complaints or concerns about unelected federal prosecutors making policy judgments at sentencing (even though prosecutorial policy judgments are not made in open court nor subject to any kind of review).

Furthermore, it seems that Congress, through the text of 3553(a), has told federal judges to make individualized policy judgments at sentencing.  The formal mandate of 3553(a) requires a federal judge to impose a sentence in each case that is “sufficient, but not greater than necessary” to serve the traditional purposes of punishment set forth in 3553(a)(2).  Doesn’t this text suggest that Congress wants federal judges, in individual cases, to make policy judgments about how the traditional purposes of punishment ought to be applied to individual defendants?

In sum, I questions the assertion that federal judges “should not make policy judgments” at sentencing because: (1) such judgments seem inevitable and are clearly made by prosecutors in every criminal case, and (2) a fair reading of the text of 3553(a) suggests that Congress has ordered federal judges to make individualized policy judgments in each and every sentencing.