Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
There is no need to reverse course and return to the dark days of the mandatory federal sentencing regime that the U.S. Supreme Court held unconstitutional in United States v. Booker. No one would argue that the U.S. Sentencing Guidelines are perfect. The shift to advisory guidelines following Booker, however, has advanced the goals of the Sentencing Reform Act and resulted in a more reasonable federal sentencing system. It is true that the sentencing system needed a fix, and the fix came through the Booker decision.
Recent and not-so-recent proposals call for a return to a system of mandatory, or at least more binding, guidelines. These calls are not coming from the judges, prosecutors, and defense attorneys operating within the system on a daily basis — they overwhelmingly agree that the impact of Booker has been positive. Rather, the calls are from the U.S. Sentencing Commission itself, seeking to impose stricter adherence to its dictates, and a variety of political actors who are attempting to appear “tough on crime” by calling for inflexible and harsher sentencing practices. Booker finally returned moral legitimacy to sentencing through actual judging and meaningful advocacy. All of the proposals would undo this progress.
The fact that two individuals committed the same federal crime does not mean that they should receive the same punishment. While sentences should be guided by the research and expertise of the Sentencing Commission, sentences should also embrace the individual humanity of each defendant. Advisory guidelines are better suited to minimize both unwarranted disparities and unwarranted uniformity because they are grounded in a framework based on research and experience, but they still afford judges the discretion to sentence similarly or differently when there is justification to do so.
Mandatory guidelines tend to erode the Sixth Amendment right to a fair trial by giving prosecutors excessive leverage over defendants. The risk of being sentenced under mandatory guidelines, which inextricably tie sentence length to the prosecutor’s charging decisions, effectively precludes defendants from exercising their right to a trial. Even if a defendant has minimal culpability or a strong defense, when faced with a mandatory guidelines system that does not accurately account for culpability and instead conflates it with arbitrary loss amounts or drug weight, the defendant will almost always forego the right to trial. With every step away from judicial discretion and towards a mandatory system, prosecutorial power increases and the Sixth Amendment rights of defendants erode even further.
The proposals advanced by Judge William K. Sessions seek to (1) streamline individual guidelines by reducing the number of aggravating factors and providing fewer and broader guideline ranges; (2) reduce disparities by making the guidelines presumptive at the sentencing and appellate stages; and (3) require juries to find aggravating factors that raise sentence ceilings in order to comply with the Supreme Court’s decisions in Blakely and Booker. These proposals would exacerbate disparities and strain resources, and would likely result in another round of litigation challenging the system’s constitutionality. Curtailing judicial discretion through the imposition of stricter mandatory sentences would create additional disparities by failing to account for individual offender characteristics. Further, the proposals would relocate nearly all judicial discretion to prosecutors through their charging decisions and plea offers, with the balance going to juries tasked with fact-finding. Rather than ameliorate any alleged disparities in the current system, the proposals would move disparities underground by hiding them away in plea bargain negotiations.
The Sentencing Commission has advocated (1) requiring sentencing courts to give the guidelines substantial weight; (2) codifying the three-step process of calculating the guidelines’ sentence before considering and justifying departures and variances; and (3) establishing presumptions of reasonableness for guidelines sentences and heightened standards of review for non-guidelines sentences. These proposals attempt to undercut Booker and its progeny in order to restore the Commission and the guidelines as the dominant force in all sentencing decisions. In other words, they would effectively reinstate mandatory sentencing.
Sentences have remained constant despite the shift to advisory guidelines; sentence length has not undergone significant change following Booker. The Commission’s data and sentencing statistics show that prior to Booker defendants received on average a 46-month sentence. Now the average is 43.3 months. This is hardly a dramatic change worthy of overhauling the entire system.
The shift from mandatory guidelines has advanced the goals of the Sentencing Reform Act through more individualized sentencing. Despite the room for improvement within individual guidelines, the change to an advisory guidelines system was a much-needed step towards a more just, fair, and rational federal sentencing scheme. All arguments to the contrary are belied by the evidence. And evidence, as we all know, is the criminal justice system’s stock-in-trade.
