« The post-Heller litigation headaches (and judicial cut-backs) have begun | Main | USSC press release about alternatives symposium »

July 8, 2008

A potent attack on the post-Booker world

Thanks to this post at C&C, I see that frequent commentor Bill Otis has a new article on federal sentencing appearing in the latest volume of Engage, the journal of the Federalist Society's practice groups.  This new article, which is titled "From Apprendi to Booker to Gall and Kimbrough: The Supreme Court Blunders its Way Back to Luck-of-the-Draw Sentencing," can be accessed here.  The piece is highly critical of the Supreme Court's work in Booker and its progeny, and here are snippets from the end of the piece:

[W]e now have something worse, and less honest, than the pre-SRA regime of standardless sentencing. We have standardless sentencing pretending to have standards.  The shrewdly opaque message to the public is that we still have sentencing guidelines, only that they are more “flexible” than before. Sentencing Commissioners continue to draw hefty salaries to write guidelines (that can be ignored at will).  Probation officers continue to calculate ranges on worksheets (that may count for something or may not). District judges go through the window dressing rehearsed for them in Gall and Kimbrough (assured by those decisions that if the litany is elaborate enough, it need not be given any weight). A person employing impolite language might call this a charade.

Because the hollowed-out guidelines are still twitching in the land of the un-dead, further depredations to the rule of law, and the proper role of the judicial branch, are sure to follow....

The road from Apprendi to Booker to Gall and Kimbrough is strewn with damage that has been all but ignored — damage to future public safety, to uniformity and honesty in sentencing, and to the proper authority of Congress.  In the 1980s, there was a bipartisan consensus strong enough to make federal sentencing conform for the first time to the rule of law.  Whether such a consensus exits today is an open question. But the first step toward building one is to understand, as it was understood twenty-five years ago, how urgently it is needed.

July 8, 2008 at 07:10 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference A potent attack on the post-Booker world:


If fixing a fair and just sentence for a convicted defendant does not fall within "the proper role of the judicial branch," I'd be interested to know what does fall in that role. Striking down punitive damage awards and enforcing the Takings clause?

Posted by: Texas Lawyer | Jul 8, 2008 8:31:54 PM

A product of the 80s:
Police lied, falsified documents during interrogation that led to teen's untimely death

Grits' headline is too kind.

Posted by: George | Jul 8, 2008 10:55:33 PM

From the article:

And it is dishonest to conduct the sentencing debate without acknowledging this fact [that broadly shorter sentences, resulting from now-advisory guidelines, will result in more crime].

Accordingly, is it then dishonest to fail to mention that the historical turn to longer sentences via mandatory guidelines resulted in many persons incarcerated for longer than necessary, if even necessary at all in some cases; i.e. that the net was arguably cast too wide? Nowhere here did I see any sort of reference to the obvious downside of removing judicial discretion and abiding rigidly, or nearly so, by prescribed "guidelines".

Whether or not you subscribe to the theory that once a criminal, anything thus (constitutionally) levied is beyond reproach, doesn't change the fact that an honest sentencing debate should at least recognize the pros and cons of both sides.

Posted by: Simon | Jul 8, 2008 10:55:38 PM

dishonest to fail to mention that the historical turn to longer sentences via mandatory guidelines resulted in many persons incarcerated for longer than necessary

This may be true, but I don't find it a very compelling argument since you don't qualify "longer than necessary." What does that exactly mean? What is necessary?

Posted by: Steve | Jul 8, 2008 11:12:38 PM

Welcome to the new century:

The Real-World Shift in Criminal Procedure

Traditionally, criminal procedure scholars have focused on the U.S. Supreme Court's constitutional doctrine. This doctrinal approach has dominated not only scholarship, but also teaching, and it continues to rule the leading casebooks. Younger scholars have begun to broaden criminal procedure scholarship to include non-judicial actors, state law, neglected topics such as plea bargaining and sentencing, and factors such as politics, race, and drugs. These changes have, however, been slow to hit the classroom, as until recently all the major casebooks focused on federal constitutional doctrine.

Now, however, two more real-world casebooks are available: Marc Miller & Ronald Wright's Criminal Procedures, and Ronald Allen, William Stuntz, Joseph Hoffman, and Debra Livingston's Comprehensive Criminal Procedure. These two books enrich the mix of teaching materials, adding a welcome diversity of approaches to the existing mix. The doctrinal, constitutional approach is not bad, but these new books supplement this approach in rewarding ways.

This review essay compares these two real-word casebooks with five leading doctrinal casebooks. It discusses how the newer approach promises to enrich teaching and scholarship as well. Part I considers the significance of looking beyond judges and case law to other actors and sources of law. Part II discusses Miller & Wright's shift of focus from federal law to state law and practice. Part III examines how factors beyond doctrine come into play: politics, race, and drugs. Part IV then looks at the broadening of focus beyond strictly criminal enforcement to civil and quasi-criminal procedures, such as forfeitures, commitment of sex offenders, and gang-loitering ordinances. Part V addresses the real-world shift away from jury trials toward the hugely important issues of charging, plea bargaining, and sentencing. This review concludes with thoughts about the significance of these changes for criminal procedure teaching and scholarship generally.

Posted by: George | Jul 8, 2008 11:54:09 PM

Steve, fair criticism. I'm not going to try and define that beyond what is "necessary" to maintain my original point.

Obviously people of different sentencing philosophies are going to differ on what is "necessary". Here, without trying to be too precise and comprehensive, I meant "necessary" as that amount of time, if any, sufficient to effect appropriate contemplation and change (granted, not so precise either).

Clearly this is difficult to ascertain a priori, but the essential point is that there are going to be some people who upon facing the criminal justice system, and/or prison, are going to do most everything they can to never experience that again. Others are intransigent. Most comprise a continuum in between.

Clearly too I'm defining terms at the moment from a utilitarian perspective. In a purely retributivist setting, such comments are worthless. However, if we are confining ourselves in this 'honest debate' to retributivist principles, then there really is no debate.

Put another way, if it's dishonest to purportedly ignore a benefit deriving from a retributivist approach, how is it not dishonest to ignore a detriment of that approach (or equivalently ignore a benefit of the utilitiarian approach)?

One likely retributivist answer to that question would be that the 'detriment' (people "unnecessarily" behind bars) is, generally speaking, only perceived as such from a utilitarian perspective, whereas the benefit (lower crime) is hopefully recognized as such by both sides.

I don't deny the consistency of the retributivist position itself, as I'm representing it here, but I do think an honest debate should address the pros and cons as perceived by both sides.

Posted by: Simon | Jul 9, 2008 12:13:40 AM

fact on the ground is that the guidelines remain, for the vast majority of judges in the vast majority of cases, the benchmark of sentencing reasonability. remains to be seen how much the post-booker cases will undermine judicial deference to the ostensibly advisory guidelines, but my guess is not much, over the run of cases. lots of district judges out there who have spent the last quarter century thinking of sentencing in terms of those grids, and no magic wand is going to reorient them any time soon.

Posted by: pubdefender | Jul 9, 2008 10:31:05 AM

For all Bill's complaints, the Guidelines contain to exert a heavy, heavy influence. Prof., I know you often post the USSG stats, but aren't something like 80 to 90% of sentences still within the GL-range? And if I recall Booker, I believe Breyer found stats stating that even then, only 84% of sentences were w/in the GLs due to departures (which were reviewed for "reasonableness," and thus Breyer claimed that the new invented reasonableness standard of review wouldn't be problematic or all that "new" because it already applied to 16% of sentences imposed).

Posted by: Reader | Jul 9, 2008 12:44:40 PM


Thanks for posting about this. The squibs you present are fair and provocative (deliberately so on my part). Still, there's more to it, so I invite anyone who's interested to look at the whole thing. I do acknowledge, incidentally, that the guidelines did help to considerably drive up the prison population (at the same time the crime rate was falling sharply).

Reader: Within range sentences are given in about 60% - 61% of the cases. In the aftermath of the Feeney Amendment, I think the figure had been roughly 68%. If I am remembering that correctly, there has been a significant fall-off post-Booker. I expect it will accelerate now, with Kimbrough and Gall as the prevailing law.

One more point: I agreed with Stevens that the Booker remedy was a gross mistake, and certainly not what Congress would have intended; with Sourter that, if the Court were going to go this far in gutting the SRA, it should have tossed the whole thing; and with Thomas that what we have now is an essentially lawless system in which courts will just make it up as they go along, resulting in more chaotic disparity than we had before there were any guidelines at all.

The present state of affairs is a lawless, logically incoherent mess that looks like it's been through the grinder -- since it has been.

Posted by: Bill Otis | Jul 10, 2008 11:09:59 PM


My article was intended as an advocacy piece, as its title pretty plainly implies. It seemed to me when I wrote it, and now, that the "utiltarian perspective" is well represented (on this influential blog as elsewhere), while other perspectives seem not to get that much attention.

We hear a great deal about the costs of imprisonment. Fair enough. No part of the criminal justice system is free. But we hear much less about the BENEFITS of imprisonment. I knew that the crime rate had fallen in the golden age of the guidelines (roughly 1990 - 2005), but I was surprised to learn by how much (it was more than 50%, which is a startling drop for so short a period).

Now not all of that can be attributed to mandatory guidelines sentencing, obviously. But some surely can, and that deserves more mention than it has received. And it is not just part of the "retributive" theory of sentencing; surely it is also part -- and an important part -- of the "utilitarian" theory: Crimes that do NOT occur result in financial as well as human benefits.

If we're going to hear about the oosts of imprisonement, we should also hear, with equally determined research and in equal detail, about the costs of failing to imprison. My article sought, inter alia, to make a point of these thus far underplayed costs.

Posted by: Bill Otis | Jul 11, 2008 9:30:39 AM


I read that sentence as basically a charge levied against anyone participating in the overall debate that neglects to mention the fact you state, regardless of type of participation - advocacy or otherwise. Perhaps my own faulty interpretation, but it's on that basis that I took issue with it.

That said, it is just one sentence in a much more expansive article, so all in all probably a minor quibble, although these points do seem to cut to the core of the debate.

We do hear a lot about the literal costs of imprisonment these days, but from my perspective, we hear little about other "costs" of imprisonment. I would welcome more information on both sides; hearing of and debating costs and benefits in broad terms. While I am encouraged that the economic arguments for abating incarceration seem to be gaining traction, it is frustrating to me that this apparently couldn't have been achieved on a moral basis instead. Granted, though, that's just my personal moral sense.

Perspectives are interesting. I actually feel the opposite of you; that we hear far too much of the "need" to imprison, largely through media and politicians stoking the fire emotionally and leaving little room for rational argument on that very public stage. Whether in academic and legal blog forums and such, essentially retributivist and utilitarian perspectives are weighted one way or another, I don't know, but the forum of television and audience arguably carries more weight in the end.

I respect the basis on which you wrote your article, although I disagree vehemently with its aims.

And I hope you enjoyed the beach.


Posted by: Simon | Jul 11, 2008 10:34:08 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB