The power of parsimony (and Justice Breyer's notable omission)

I am heading home soon to crank up the The Who's fitting Won't Get Fooled Again to better understand the Booker decision (explanation here), but one more point for now about an important feature of our new advisory world order.

As I understand matters, federal judges imposing sentences after Booker remain fully bound by the dictates of 18 USC § 3553(a).  See Breyer for the Court at 16-17; id. at 19 ("Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing.")  That provision, as Justice Breyer explains at page 17, requires consideration of guidelines ranges, of the need to avoid disparities, and of the traditional purposes of punishment.  But, the very first sentence of 3553(a) has a critical initial instruction to judges, what has been called the "parsimony provision," which states: "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment] set forth in paragraph (2) of this subsection."  Notably, and somewhat disconcertingly, Justice Breyer's opinion makes no mention of this mandate.

Federal district courts at sentencing (and circuit courts assessing reasonableness) will have to, in my view, give considerable attention to this very important, though historically ignored, mandate that federal sentencing judges impose the lowest possible sentence to achieve the purposes of punishment.  For that matter, probation officers doing presentence reports, and prosecutors and defense attorneys making sentencing recommendations, will also have to figure out what this parsimony provision means for specific cases.

But what does it really mean?  Consider Freddie Booker and Ducan Fanfan.  Both were involved in non-violent drug offenses.  What sentence will qualify as "sufficient, but not greater than necessary, to comply with the purposes [of punishment]"?  Or let's think about some fraud cases. Was Martha Stewart's 10 month sentence "sufficient, but not greater than necessary, to comply with the purposes [of punishment]"?   I can say with a some confidence, based on what I have read, that Jamie Olis will have a pretty good claim that his severe 24-year sentence is greater than necessary to comply with the purposes of punishment.   

When the Justice Department was arguing for advisory guidelines in September to avoid "sentencing windfalls," I wondered here and here whether in fact sentences would end up lower in an advisory system (at least for some defendants).  I suppose we will soon find out, and I will be especially curious to see how courts consider the parsimony mandate. 

I also will be closely watching if courts start to consider a range of mitigating offender circumstances — e.g., family circumstances, drug dependency, lack of guidance as a youth — that mandatory guidelines had largely taken off the table.  In our new advisory system, defendants have every reason (and I might even say a due process right) to raise these issues, and judges arguably now have an obligation to explain on the record whether the purposes of punishment will be served or disserved by their consideration.  Fun times ahead.