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April 19, 2005

A punchy, though puzzling, perspective on parsimony

In the hours after Booker was handed down, I discussed the power of parsimony in highlighting that the very first sentence of 3553(a) instructs that federal judges "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."  This statutory mandate is often called the "parsimony provision," and Judge Cassell suggested in his original Wilson opinion (basics here, commentary here and here) that this statutory directive arguably "requires a court to impose a sentence at the low end of any applicable Guidelines range." Wilson Slip op. at p. 23.

Judge Kopf's (entertaining) Tabor opinion yesterday on crack sentencing (discussed here) suggests that the parsimony provision, which was barely ever discussed pre-Booker, is now getting plenty of attention.  But, as indicated in footnote 14 in Tabor, Judge Kopf apparently is not too pleased with this development:

If a criminal defense lawyer invokes the "not greater than necessary" chant one more time as the raison d'etre for a sentence below the Guidelines, I am likely to throw up.  What the hell does "not greater than necessary" really mean?  Please do not refer me to 18 U.S.C. § 3553(a)(2) as if it provided a concrete answer for individual cases.  Centering a sentence on the words "not greater than necessary" is the judicial equivalent of reading tarot cards — neither the legitimacy of the sentence nor the truth of the reading can be proved or disproved by rational means.  More to the point, why should anyone trust one unelected judge like me to provide ad hoc definitions of this virtually meaningless and circular abstraction unencumbered by the lodestar of the Guidelines?  Booker tells me to use discretion. It does not tell me to pick sentences out of the air by fixating on the phrase "not greater than necessary" as an excuse to sentence below the Guidelines.

Though this discussion of the parsimony provision is a wonderful rhetorical flash of legal realism, I must note that these comments by Judge Kopf are a bit jarring within an opinion that otherwise heavily stresses the importance of judges following Congress's sentencing instructions.  After all, the parsimony provision is a statutory mandate enacted by Congress as part of the Sentencing Reform Act two decades ago, and it has never been altered.  (In contrast, neither the crack guidelines nor most other specific provisions of the "lodestar of the Guidelines" have ever been formally enacted by Congress). 

Though Judge Kopf may struggle with Congress's statutory instruction in 3553(a) that judges "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment]," it is the obligation of all judges at sentencing to try to give effect to this mandate unless and until Congress changes the terms of 3553(a).  Moreover, when the US Sentencing Commission and others seek to judge the status of post-Booker sentencing, they should be sure to keep in mind that this statutory obligation now controls federal sentencing decision-making in individual cases.

April 19, 2005 at 04:07 PM | Permalink


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There seems to be quite the epidemic in our government of determining the desired results, then making the "facts" fit those desired results. Paraphrasing a late, great lawyer, if the fact don't fit, you must ignore it. Judge Kopf might want to get to a diagnostician forthwith. There may be a cure.

Posted by: Jeannie | Apr 19, 2005 8:31:01 PM

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