Saturday, January 23, 2010
A better obituary
A better and more complete obituary of Dan Freed (compared to that on the Razor) appeared in yesterday's New York Times. It reports on a life that was truly remarkable (even among my remarkable group of mentors, for whom I hope not to write any more eulogies for a while). Here is an excerpt:
Professor Freed pioneered the study of [sentencing] when he brought Alabama state judges, a largely conservative lot, to Yale Law School to discuss with students what the sentences should be in hypothetical cases.
For decades, judges had unquestioned power to impose sentences using their own discretion with little fear of appeal. Professor Freed argued for more regularity in sentencing. It was unfair, he asserted, that the same crime committed under similar circumstances could result in widely different sentences, depending on the luck of the draw of which judges presided over the cases.
His writings influenced the passage of the Sentencing Reform Act of 1984, which called for a federal commission to establish sentencing guidelines. But he soon became a critic of how the remedy was used.
In practice, Professor Freed said, the guidelines imposed a mechanistic rigidity on sentencing by obliging judges to adhere to a complicated set of charts and tables in determining a sentence. Deviating from the guidelines exposed a judge to reversal by a higher court.
The new process, he asserted, merely shifted discretion from judges to others in the system, notably prosecutors, who could control sentencing by choosing which criminal charges to bring. A prosecutor’s discretion in selecting charges became the primary factor in sentencing, he argued, because once a conviction was obtained, judges felt largely bound by the guidelines.
Professor Freed was a founder of The Federal Sentencing Reporter, an influential publication that he used to chronicle sentencing developments and to argue, usually gently, that the system had gone awry. He urged judges to resist the rigid guidelines and to write opinions explicating their reasons for doing so.
Nancy Gertner, a federal trial judge in Boston and an authority on federal sentencing, said Professor Freed had urged judges to reason among themselves and to produce a body of law that would transform the guidelines into recommendations instead of mandates.
In 2005, a divided United States Supreme Court in Booker v. United States ruled for the first time that the guidelines were not mandatory, bringing the system more in line with what Professor Freed had envisioned.
Daniel Josef Freed was born in New York City and attended Yale College and Yale Law School. After serving in the Navy, he worked in the Justice Department and became director of the criminal justice division under Attorney General Robert F. Kennedy.