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March 3, 2011

Former Chair of US Sentencing Commission urging "presumptive guideline" Booker fix

Federal district judge William K. Sessions III, who served on the US Sentencing Commission for more than a decade and who was its Chair through the end of last year, has authored an important new paper about the present and future of post-Booker sentencing law and policy.  This paper, now available here via SSRN, is titled, "At the Crossroads of the Three Branches: the U.S. Sentencing Commission's Attempts to Achieve Sentencing Reform in the Midst of Inter-Branch Power Struggles." Here is the abstract:

During the past quarter-century, federal sentencing policy has been impacted by struggles among the three branches of government, with each branch possessing a legitimate stake in formulating the policy but at times exerting inordinate influence at the expense of the other branches.  The United States Sentencing Commission has faced -- and will continue to face -- enormous challenges in its mission to serve as the neutral expert at the intersection of the three branches regarding federal sentencing policy.

In the same manner in which the Commission has had to adjust to dramatic changes in the past (such as the PROTECT Act and the Supreme Court’s decision in Booker v. United States), I envision that additional changes will occur in the foreseeable future and the Commission will yet again be forced to adjust.  In particular, I predict that, despite allowing the “advisory” guidelines system created by Court to exist for over six years to date, Congress eventually will retool the current system because of growing sentencing disparities -- both inter-judge disparities and demographic disparities, the same type which caused bipartisan support for the Sentencing Reform Act of 1984.  With this in mind, and as a consequence of its unique vantage point of being at the crossroads of the three branches of government, the Sentencing Commission must assume a leadership role in developing an improved federal sentencing scheme that recognizes the legitimate interests of each branch.

I urge the Commission, working together with Congress and executive branch, to reformulate the guidelines in a manner that helps reduce unwarranted disparities while, at the same time, remove the main obstacle that has hindered lasting achievement of the aspirations of the SRA: the undue complexity and rigidity of the guidelines system, which have resulted in large part from congressional directives and draconian mandatory minimum statutes and which have caused increasing numbers of judges to resist (and, after Booker, in some cases entirely reject) substantial portions of the current guidelines. The Commission should streamline individual guidelines (primarily by reducing the amount of numeric aggravating factors in Chapters Two and Three) and also simplify the Sentencing Table in Chapter Five of the Guidelines Manual to provide for fewer and broader sentencing ranges.  To reduce unwarranted sentencing disparities, Congress should make the guidelines presumptive (rather than advisory) and provide for meaningful appellate review to generally keep sentences within the presumptive ranges (which also would make mandatory minimum statutory penalties unnecessary).  Finally, in order to comply with the Court’s decisions in Blakely v. Washington and later Booker, juries would be required to find aggravating facts that raise the “ceilings” of guideline ranges. Yet broader ranges and fewer aggravating factors likely would make such jury findings a relatively uncommon event.

Such a presumptive guideline system subject to meaningful appellate review would meet Congress’s and the executive branch’s valid desire to minimize disparate sentences being imposed on similarly situated defendants who committed similar offenses.  At the same time, however, broader sentencing ranges and fewer mandatory aggravating factors would allow sentencing judges to better account for individual offender and offense characteristics, thereby allowing judges to carry out their traditional role in determining fair and just sentences.

My proposed system would not be perfect; no sentencing system ever will come close to being perfect.  But it would be a genuine compromise that would provide something meaningful to all three branches.  At the very least, my proposal is intended to advance the dialogue regarding changes that are clearly needed.

I have heard a bit of buzz from some fans of the current post-Booker federal sentencing status quo that they were troubled to see the former USSC Chair actively urging a legislative Booker fix.  But especially in the wake of the federal sentencing ruling by the Supreme Court yesterday in Pepper (basics here), it is understandable that Judge Sessions and perhaps many others continue to be concerned that the broad discretion that Booker jurisprudence now affords sentencing judges could, in the words of this article, hinder what some consider the "lasting achievement of the aspirations of the SRA."    

March 3, 2011 at 09:27 AM | Permalink


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Just where was Judge Sessions concern about the fact the Guidelines completely disregarded the large role probation played in pre-Guidelines practice and which no one has tried to fix?

Posted by: anon | Mar 3, 2011 10:36:21 AM

Judge Sessions is onto something very important, and I am grateful that he has written about it. His suggestions, however, do not go far enough. What's needed is what Justice Stevens and three of his colleagues described in their dissent to the remedial portion of Booker -- to wit, the restoration of mandatory guidelines, while requiring the government to prove at sentencing such facts as Blakely requires.

The Sentencing Commission has twiddled its thumbs for six years as Booker and its aftermath have set us on the path back to the bad old days of luck-of-the-draw sentencing, in which district judges' ideology and idiosyncrasy tell the tale.

I have described the problem and set forth the solution in my article in the current edition of the Federal Sentencing Reporter. The article is linked in the last paragraph of my entry on Crime & Consequences, which can be found here:

Posted by: Bill Otis | Mar 3, 2011 10:38:37 AM

Mr. Otis,
I accept that opinions may differ on the relative value of the advisory guideline system since Booker. However, one thing has become clear since Booker. It is now obvious to anyone who has been paying any sort of attention that under the mandatory system, that the Commission was doing far worse than "twiddling their thumbs". The Commission was simply acting as a rubber stamp to any desire on the part of law enforcement and the executice branch to increase penalties regardless of whether there was in fact a justification to do so.

Before Booker there was a prohibition on questioning the wisdom of any decision that the Commission made. A discussion of the reasons behind ever increasing penalties was simply forbidden. The clearest benefit of Booker and the advisory system that it created has been to allow this discussion to take place. Unfortunately, some of the institutuional actors (prosecutors and judges) have yet to acknowledge that this discussion is now required, or even allowed. They resisted and resisted and resited acknowledging that it was appropriate to examine whether or not particular provisions had any rational justification. They continue to resist, and even after SCOTUS' decision in Pepper this week, I expect them to continue resisting.

The main reason that I, as a defense attorney, am concerned about changing the current state of sentencing is that judges and prosecutors do not seem to have learned this primary lesson of the advisory system. When I have claimed that a guideline is not justified by the reasons given by the commission and invited the government to attempt to explain and justify the provision they have uniformly declined to accept the challenge. Also unfortunately, many judges do not seem to think that the government's inability to provide any rational support for particular provisions is relevant at sentencing, even though anyone who has been paying attention to what the Supreme Court has been saying since Kimbrough could have figured this out. resist resist resist.

Until the institutional actors have learned what I see as the most important lesson of the Booker era, which is that guideline provisions that increase sentences should actually be supported by sound reasoning, and if the proponent of the increased sentence (the government) is unable to articulate a decent reason for the provision then is should be viewed with extreme caution. Until the government feels that it should actually try to do this and the courts feel that if the government cant do it that there might be a problem then I would oppose a legislative change. When that finally happens then I might consider supporting a change.

Posted by: KRG def attny | Mar 3, 2011 1:33:17 PM

KRG --

"Before Booker there was a prohibition on questioning the wisdom of any decision that the Commission made."

That's simply not true.

"A discussion of the reasons behind ever increasing penalties was simply forbidden."

That is also not true.

Overall, what you appear to believe is that mandatory guidelines might be acceptable, as long as they provide for lower sentences.

As I pointed out in my FSR article, however, whether guideines are mandatory or not does not, in principle, have anything to do with what the length of sentences is. The PROCEDURE for figuring out what the sentence should be is separate from the SUBSTANTIVE length of the sentence.

As Judge Sessions sees, and Justice Stevens saw, Booker is the fast road back to luck-of-the-draw sentencing. The defense bar might like what it gets with district judges appointed by President Obama, but it will like much less what it will get with judges appointed by, say, a President Christie or a President Pawlenty.

The best way -- indeed very likely the only way -- to avoid irrational, ideological and idiosyncratic variations in sentencing is a mandatory guidelines system.

There has been ample time for discussion of this question in the more than six years since Booker was decided. It is now time to act; indeed, as Justice Souter said in his concurrence in Gall four years ago, it's past time for a new Act of Congress re-establishing mandatory guidelines, Gall v. United States, 552 U.S. 38, 61 (2007)(Souter, J., concurring).

Posted by: Bill Otis | Mar 3, 2011 2:49:09 PM

Bill Otis, is it really true that district judges impose Guideline sentences only about half the time, and falling? I was under the impression that the Guidelines are followed quite a bit more frequently than that.

What’s more, I’m under the impression that the cases in which the Guidelines are not followed, are overwhelmingly in a few limited categories: child porn possession, loss calculation in white collar crime cases, and the crack/powder cocaine disparity. And in these categories, there seems to be a widespread perception (not merely among defense attorneys and judges appointed by Democratic presidents) that the Guidelines are wrong.

I note that Judge Sessions includes the abolition of mandatory minimums, a measure that, if adopted (which seems to me unlikely), would lead to lower sentences in many cases.

I agree with most of what Judge Sessions suggests, but it’s worth noting that the Commission could do some of these things on its own. He is right that the Guidelines are far too complicated, and the ranges far too narrow. The Commission could start working on these things now.

One recommendation not mentioned is that, in my view, the acceptance of responsibility element should be expressed as a percentage of the guideline, instead of being fixed at 3 levels regardless of the type of case.

Posted by: Marc Shepherd | Mar 3, 2011 4:23:01 PM

From my view guideline sentences are the norm...Agree thast MM need to be removed...If one pleads guilty with the current grotest sentences, one should get 40% reduction.....Since there is no Parole, it would make federal about 2-3 times more severe than state sentences, with the reduction....They need to get a very high rate of good time days going... For those that follow the rules, give them 1 on 1....After all its purpose is to grow these people, give them a reason for good behavior, other than adding more time on for a minor infraction..... Use honey, not vinegar...

Posted by: Josh | Mar 3, 2011 4:40:56 PM

Marc Shepherd --

"Bill Otis, is it really true that district judges impose Guideline sentences only about half the time, and falling?"

Yes, it is true. It's now at a bit under 55%, and it has fallen every year since Booker. I estimated in my FSR article that, at the present rate of decline, in three years, the majority of sentences will be outside the range. I stand by that estimate in full.

Here's a link to the figures:


To repeat what I said in the FSR, many of the departures result from government substantial assistance motions, which are mostly done in drug conspiracy cases (including but not limited to cocaine cases), rather than porn or white collar cases.

As I also point out, the direction of departures is very telling. Downward departures outnumber upward departures by better than 20-1. I severely doubt that the public is aware of how one-sided things are on the departure front. "Judicial discretion" turns out to be a one-way street, and I doubt the public knows that either.

It is true that the Commission could do some things on its own, but the main item -- the restoration of determinate sentencing, as opposed to the anything-goes system we have now -- is in Congress's hands. The Commission could make a recommendation to Congress (indeed that is one of its statutorily-assigned missions) but it has just sat on its hands.

Mandatory minimus are also in Congress's power. That the last Congress, the most liberal in 50 years, took no action is a sure sign that there will be none for the foreseeable future.

Basically, as Justice Stevens and Justice Souter pointed out, we can have a determinate sentencing system, which is what Congress wanted when it passed the SRA, or we can have the current lawless hodge-podge. To me, the choice is not difficult.

Posted by: Bill Otis | Mar 3, 2011 7:00:49 PM


But a return to determinate sentencing would require ... you know .. work .. on the part of Congress. That seems to be something they avoid as much as possible. Look at how much haranguing went on over the relatively modest changes in cocaine sentencing. It's going to take first getting to where every judge feels free to ignore every guideline for any or no reason, then it's going to take twenty years for Congress to notice, and then it's going to take another five or ten years for them to work out a fix. So expect ddeterminate sentencing to make a return in 35 to 50 years. By which time the concerns over government expenditures is going to be so great that we will wonder if we can afford prisons at all.

Posted by: Soronel Haetir | Mar 3, 2011 8:32:41 PM

Bill, if most of the departures are the result of government substantial assistance motions, then doesn’t it mean that most departures are not disputed by either party to the case? This doesn’t mean judges have run amok, but that judges are signing off on what both sides want, which ought to be the norm in any litigation. But perhaps I am misunderstanding you.

I doubt that the general public would be surprised that judges are departing down far more often than up. The argument that we are locking up too many people, for too long, is no longer solely a liberal cause. By their nature, the Guidelines are slow to react to the times. It’s no surprise that they are too harsh more often than they are too lenient.

In addition, the substantial assistance motion, which I believe is a feature provided by law, is designed to make sentences go down. There is no equivalent motion that makes them go up.

Posted by: Marc Shepherd | Mar 3, 2011 11:39:15 PM

Marc Shepherd --

What is less visible, since it's below the surface, is that judges, shall we say, encourage the filing of substantial assistance motions even where the assistance is somewhat gossamer, if not fictional. It got so bad in one case I handled that the judge granted a "substantial assistance" departure because we had allowed such departures for the majority of the co-conspirators. The judge acted notwithstanding that the defendant in question had told us fairly politely to go to hell, and we (accordingly) never filed any motion referring to that defendant's "assistance," since such a motion would have required perjury.

It was cases like that where I made my living as the Office's appellate lawyer. One of the judges on the Fourth Circuit panel got mad at me because I had been pretty blunt in going after the district judge, who was a kindly man in his eighties, and who was, over his long career, a pretty good jurist. But I got all the votes on the panel anyway, there being no choice under the law.

My guess is the same as yours that the public would expect that, for the most part, defendants would get more departures than the government. But they would be very surprised, I think, by the AMOUNT of the difference. Twenty-to-one makes it very questionable whether what is really going on with these departures is merely a presumably roughly balanced judicial "discretion."

The anti-incarceration argument is gaining traction, I agree (and said so in the article), but not because the public thinks the system is too harsh. They think it's too expensive, which is something very different. Fiscal conservatives are signing up (to an extent) because, with good reason, they dread our impending national bankruptcy. They understand, correctly I fear, that Obama's base will not allow him to tackle the problem where it needs to be tackled, i.e., uncontrolled entitlement spending. So they're looking for something, anything.

Substantial assistance motions are designed, first and foremost, to get information and thus enable the authorities to put away more of the bad guys. In the aggregate, this is likely to result in MORE total man-years of incarceration, not less -- as the drafters of the SA provision knew. Of course, as you correctly note, it operates in any individual case to provide a particular defendant with a sentencing reduction -- but as the means to an end, not the end in itself.

Posted by: Bill Otis | Mar 4, 2011 1:28:31 AM

Soronel --

Now, now. You should be nice to our Congress. Besides, according to your calculations, I'll only be 110 or so when they get around to doing something.

Posted by: Bill Otis | Mar 4, 2011 1:31:43 AM

Bill, I mostly agree with you, except for one thing:

Proposals to significantly reduce entitlement spending poll very poorly, not just with Obama’s base, but with everyone except the Republican base. Entitlements won’t be reformed until there’s a proposal independents agree with, since neither party can win the presidency with its base alone.

Incarceration, on the other hand, is something the public mostly pays very little attention to, unless the crime is in their own back yard. If every non-violent criminal had his sentence quietly halved tomorrow, there would be a significant cost savings, but the average voter would never notice. Cut their Social Security check by even a dollar, and they’ll probably be voting for the other party next time.

Posted by: Marc Shepherd | Mar 4, 2011 10:04:54 AM

good one marc!

"Cut their Social Security check by even a dollar, and they’ll probably be voting for the other party next time."

Or they might be like the people in north africa right now. Reaching for a ROPE!

Posted by: rodsmith | Mar 4, 2011 1:52:30 PM

Marc --

The country is going to have to come to grips with the fact that we are in over our heads. The money to tackle the deficit just isn't there in the criminal justice system in its entirety, much less in the fraction devoted to incarceration. The money is in entitlements, so it has to come from there. Reality provides no other choice.

I was appalled that, even though Obama has acknowledged that entitlements will have to be tackled, his budget, submitted two months ago, walked right past them. This is a complete abdication of leadership and responsibility. If the House Republicans pull the same head-in-the-sand stunt, I won't think much of them either.

We are going to have to start acting like adults. I don't know whether this is possible. We've been spoiling ourselves for a very long time, borrowing against an always-to-be-put-off tomorrow so that we can live fatter today. We are addicted to spending and debt, and addictions are hard to break.

The poll to which you refer is probably the NYT poll. But I have seen others, for example the Quinnipac poll, with different and more hopeful results.

Liberals who want to cut back on imprisonment, ostensibly to save money, remind me of conservatives who want to cut back on PBS and NPR, also ostensibly to save money. The same three things are wrong with each of these agendas: They're just cover for long pre-existing beliefs; they are far too small to have any significant impact on the debt whatever; and they distract us from addressing the much harder things that DO have a significant impact, to wit, entitlements.

Whether it's PBS or imprisonment, it is past time for us to quit thinking we can nibble around the edges. The core of the problem has to be addressed, and people are going to have to accommodate themselves to the fact that their government checks are going to get smaller, because the money simply is not there. And accommodation is coming, one way or another. The only question is whether it's coming with relatively less pain, by trying to get ahead of events now, or coming with relatively more (and severe) pain when the consequences of debt land on a public that thinks they can be made to go away if we simply don't think about it.

Posted by: Bill Otis | Mar 4, 2011 1:52:33 PM

i have to agree with you bill. There is a lot of stuff we can cut. starting with everything we spend sucking up to the rest of the world or trying to fight THEIR battles for them. give the united nations 48hrs to get out and end any support to it. same with the IMF and there rest. Start up the underwater mining regan canned since the UN wanted us to sh ow the rest of the world how to do it and then give up 50% of whatever we brought up. Then like you said end any benefits we can't afford to new individuals and freeze any for those receiving them now unless they are funded.

Of course let's not forget handing the U.S Govt a demand for payment from social security for the trillion dollars they took out of the system in all t hose decades it took in MORE than it paid out so it could be used to paid for govt givewaways in the general fund.

Posted by: rodsmith | Mar 5, 2011 1:44:57 AM

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