An interesting poll up at CBS. 2/3rds of Americans don't believe federal judges should be subject to more political control. It appears that political attacks on the judiciary are backfiring. The question for us here is, what might this mean for sentencing guidelines? Clearly, no revolution has occurred protesting guidelines on either the state or federal level, but this particular context hasn't really been at play to this extent either. These findings would certainly make a good talking point for any opponent of guidelines, and they might generally take wind out of the sails of any guidelines entrepreneur anyway. It would be harder to argue that judicial discretion should be tamed by policymakers even in the name of worthy and wonderful things, which very few people think of guidelines in my experience.
This is part of what I'm talking about when I talk about the plateauing of guidelines as a means of shaping sound sentencing or structuring policy and resources. The original momentum for guidelines, it's always seemed to me, came from the general cultural mistrust in the 70s into the 90s of professionals and their discretion to make important decisions in our lives at the time. (See teachers, tests and standards; doctors, HMOs; ministers, rise of "tell me what I want to hear" churches, etc. I don't include policy analysts here because our complaint is that we've never been allowed to make those decisions.) While those attitudes are still certainly at play, the backlash against the "solutions" has gotten stronger, and I believe it's also reflected in this poll. Inherent in guidelines, mandatory mins, three strikes, etc., is the notion that judges don't know as much about what they're doing as they think and that regular folks can make decisions just as good or better. For all the activity we yet see in these areas, particularly man-mins, they really have not captured the flag, and it looks like judgments of judges and the wisdom of those who would control them are swinging back the other way. Within that context, interest in guidelines has shifted more to advisory than prescriptive, if interest remains at all. That's why, in the current milieu (I really was trying to stay away from that word, but I ran out of synonyms), options like sentencing information systems and Judge Marcus' "smart sentencing" that inform judges and policymakers about what's happening and best practice are building an upsurge. I'm not tolling a death knell for guidelines, and certainly not for commissions which might actually play a more relevant role with the new approaches, but I do think that those concerned about sentencing, corrections, resources, and justice should take note of polls like these. They indicate that the ground has shifted and that new strategies and approaches are warranted.
Guidelines were never an easy sale in any case. These polls indicate that it's just going to be harder.