Wednesday, December 12, 2007

Whither the Federal Sentencing Guidelines?

The Supreme Court recently gave federal judges a great deal more discretion in deviating from the Federal Sentencing Guidelines in Kimbrough v. U.S. (Docket number 06-6330) and Gall v. U.S. (Docket number 06-7949).

While this seems like a great day for judicial sentencing reform, Jason Harrow, author of a treatise on sentencing, cautions that this change may actually set sentencing reform backwards by ameliorating the most obvious injustice (the crack cocaine sentencing disparity) while leaving the system fundamentally unjust and hostage to "tough on crime" election-year hysteria.

I strongly suspect that the Blakely-Booker-Rita-Gall-Kimbrough line of cases will let all the steam out of the movement for significant reform of the federal sentencing system....

Conversely, I suspect that the “advisory” character of the Guidelines will only exacerbate the tendency of Congress to meddle in the specifics of guidelines rules.

The pre-Booker system had become a one-way upward ratchet as Congress consistently urged or commanded the Commission to raise penalties in response to the national crime du jour or the electoral needs of particular members.

But in the pre-Booker world, responsible legislators, at least, were checked by the knowledge that guidelines adjustments necessarily produced real sentence increases across the board to virtually all covered defendants.

In the post-Booker-Gall-Kimbrough universe, not even that modest check remains. Micro-managing congressmen proposing yet another two-offense-level increase for spitting on a federal sidewalk can salve any incipient pangs of legislative conscience with the thought that judges will redress any case-specific injustices by exercising their expanded sentencing discretion.

My rueful prediction is that, with only occasional exceptions, Congress will, on a congenially bipartisan basis, continue to bloat guidelines sentencing levels whenever electorally convenient...

Those district court judges now on the bench have, with few exceptions, become accustomed to the guidelines. The guidelines sentencing process is familiar and the sentence lengths prescribed by the Guidelines... have largely been internalized as an acceptable, or at least democratically sanctioned, norm.

For the few cases where applying the guidelines kept judges up at nights, Booker, Rita, Gall, and Kimbrough have given them a safety valve. And thus one should not expect either open or covert agitation from the federal bench for fundamental reform.

It remains a mystery to me why so many people whose basic position is that the Federal Sentencing Guidelines are a disaster and that the sentences imposed in federal court are a travesty are so enamored of the Apprendi-Blakely-Booker-Kimbrough line [of cases.]

I understand that the loosening of the reins these cases command makes judges and defense lawyers feel better because they allow judges and lawyers to act more judge-like and lawyer-like during sentencing. And (to be fair) the practical consequence of these cases is that some defendants, and maybe some thousands, will receive lower sentences than would have been the case before.

But from a systemic perspective, it is very hard to avoid the conclusion that the primary result of these cases will be to ensure the continued survival of the Guidelines much as they have always been.

|Commentary: Gall and Kimbrough From Three Perspectives - SCOTUS Blog|

So there you have it, the more things change, the more they stay the same.

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