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Amy Baron-Evans and Kate Stith

excerpted from: Amy Baron-Evans and Kate Stith, Booker Rules, University of Pennsylvania Law Review 1632 (629 Footnotes Omitted)


In United States v. Booker, the Supreme Court excised two provisions of the Sentencing Reform Act of 1984 (SRA) that had made the Sentencing Guidelines binding on sentencing judges: 18 U.S.C. 3553(b), the provision that had confined departures to specified, limited circumstances, and 18 U.S.C. 3742(e), the standard of review under which courts of appeals had enforced those limitations. The Court made the law of sentencing the purposes and factors set forth in 18 U.S.C. 3553(a), and the standard of review for all sentences, inside or outside the guideline range, the reasonableness of the sentencing judge's application of that law.

The mandatory guidelines system Booker replaced was badly out of balance in ways never contemplated by the framers of the SRA or the Supreme Court when it upheld the U.S. Sentencing Commission against separation-of-powers challenges. Yet Booker was initially met with resistance by the Commission and the Department of Justice, and many lower courts continued to treat the guidelines as virtually mandatory. In subsequent decisions, the Supreme Court firmly insisted that the guidelines are--and must be--advisory only. The result has been a gradual but marked improvement in the quality, transparency, and rationality of federal sentencing, in both the sentencing of individual defendants and the Commission's rulemaking. The advisory guidelines system has broad support: the vast majority of federal judges believe that advisory guidelines achieve the purposes of sentencing better than any kind of mandatory guidelines system or no guidelines at all, the Criminal Law Committee of the Judicial Conference of the United States supports the advisory guidelines system, prosecutors prefer advisory guidelines to other available options, and the organized public and private defense bars support the advisory guidelines system.

Nevertheless, a former Chair of the Sentencing Commission and the current Commission itself have each proposed that Congress enact a Booker fix. Former Commission Chair Judge William K. Sessions III proposes the resurrection of presumptive (formerly called mandatory) guidelines, with enhancing facts to be charged in an indictment and proved to a jury beyond a reasonable doubt or admitted by the defendant. The Commission proposes codification of a variety of devices designed to give its guidelines, as well as its restrictions on non-guideline sentences, increased weight at sentencing, and to more strictly enforce the guidelines on appeal. These proposals-- seeking to fix a system that, far from being broken, is actually working properly for the first time--are unwise, unworkable, and likely unconstitutional.

This Article proceeds in four parts. Part I explores the history and failings of the former mandatory guidelines system. Some of the history we set forth has not previously been examined, yet is critical to understanding how the Supreme Court came to the conclusion that the Sentencing Commission's policy statements and commentary, as well as its guidelines, were binding on judges--a conclusion that was essential to the Court's recognition in Booker that the guidelines regime was mandatory. Part II describes the improvements made by the advisory guidelines system, drawing primarily upon new data and recent cases. Part III examines the flawed justifications that have been offered for a Booker fix. Most importantly, we carefully examine and refute the claim that judges have exercised their increased discretion after Booker in a racially biased manner. Drawing on a variety of evidence including empirical analyses by others, we conclude that (1) increased judicial discretion after Booker has mitigated racial disparity built into the guidelines; (2) racial disparity after Booker is driven primarily by the increased impact of mandatory minimums that constrain judicial discretion and apply most frequently to black offenders; and (3) if it were possible to devise a study controlling for all legally relevant factors, a finding of racial disparity in judicial decisionmaking would be unlikely. Part IV sets forth practical, policy, and constitutional reasons for rejecting both Judge Sessions's and the Commission's proposals. We conclude that these proposals would likely violate Booker and its progeny, and that Judge Sessions's proposal would violate fundamental principles of separation of powers.

* * *

The history of federal sentencing since the SRA has proved that a neutral and rational sentencing system is not possible without the balancing influence of the judiciary. The SRA included several procedural mechanisms intended to achieve both reduced sentencing disparity and increased sentencing fairness in individual cases. Momentously, however, Congress exempted the Commission from judicial review. The honor system did not work. The Commission, with the misguided assistance of the Supreme Court, nullified the departure mechanism intended to allow individualized sentences and constructive evolution of the guidelines.

As a result, the judicial feedback mechanism for which the SRA provided did not function until the post-Booker era. As Judge Sessions put it, In an advisory guidelines system, the Commission's acceptance by the criminal justice community depends upon respect for the exercise of its expertise in sentencing policy. Indeed, for the first time, the frontline actors in sentencing--most importantly, the Article III judges called upon to begin their sentencing deliberations by calculating the guideline range--are informing the Commission of the nature and extent of problems with the guidelines. The political branches remain an influence on the Commission's work, but they are no longer the only significant influence. The relatively mild countervailing force of judges themselves has encouraged the Commission to perform as the expert body Congress intended.

The sentencing process has also changed for the better, as judges are permitted to consider all relevant facts about the offense and the offender. Allowing judges to consider factors and purposes of sentencing that are not adequately taken into account in the guidelines has avoided thousands of years of unnecessary incarceration under guidelines that the Commission itself had found to be unjustified by any legitimate purpose and to have an adverse racial impact. At the same time, judges have not been unduly lenient. Indeed, they have responded to the increase in their discretionary authority with restraint and moderation. It is hardly surprising, then, that other frontline actors-- including federal prosecutors--also support the advisory guidelines system. The Commission has made incremental changes to the guidelines in consideration of the sentencing data and reasons it receives. We expect that the current system will be stable and enduring as the Commission further revises broken or ill-conceived guidelines.

Proposals advanced by Judge Sessions and the Sentencing Commission are not only unnecessary, but would substantially undo the balance that Booker has achieved. Judge Sessions and the Commission acknowledge that judges have not been unduly lenient and that the guidelines continue to exert a strong gravitational pull on sentences, as they have since Booker. Their claim of increased racial disparity stems from an unreliable study, which has been contradicted and explained by different studies, and the claim of a troubling increase in regional disparity is simply unsupported. At the same time, Judge Sessions and the Commission fail to acknowledge that Booker has alleviated proven forms of unwarranted disparity and that their proposals would revive these problems.

Judge Sessions's proposal to establish a system of mandatory guidelines would abruptly halt judicial feedback and constructive evolution of the guidelines, transfer sentencing power from the judge to the parties, and virtually eliminate appellate review. At the same time, there is no reason to think that his proposal could achieve the legislative compromises he predicts. It would also invite greater variation in sentencing than exists today (under one reading) or require judicial factfinding in a manner that would violate the Sixth Amendment (under another reading). Finally, the Sessions proposal raises serious constitutional issues relating to separation of powers--issues that the pre-Booker guidelines did not raise and that neither Mistretta nor Booker addressed.

The Commission's proposals to establish a highly constraining guidelines regime would similarly interfere with individualized sentencing and constructive evolution of the guidelines. They would also appear to violate the requirements of the Sixth Amendment as laid down in Booker and its progeny because, especially taken together, they would give significant weight to the guidelines and in practical effect would entail a presumption of unreasonableness for sentences not in accord with the Commission's policies. In the meantime, the proposals would spawn years of disruptive litigation.

We repeat: Booker was the fix.

. Amy Baron-Evans, Sentencing Resource Counsel, Federal Public and Community Defenders; Kate Stith, Lafayette S. Foster Professor of Law, Yale Law School.