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June 24, 2006

Crack sentencing and the anti-parsimony pandemic

In a new YLJ comment noted here, Eric Citron goes to great lengths to defend the First Circuit's work in Pho (basics here, commentary here and here and here), which reversed a district court's decision not to apply the guidelines 100:1 crack/powder ratio.  But, like others who seem eager to demand the continued application of harsh and discriminatory crack guidelines after Booker, Eric's comment never directly grapples with the central instruction from Congress to sentencing judges in 18 U.S.C. § 3553(a): "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection."

I have decided to call the continued disregard of this command after Booker an "anti-parsimony pandemic."  (Recall that, as detailed here, Justice Breyer started this brain virus in the Booker remedy.) The crack debate reveals the harmful consequences of this affliction.  The US Sentencing Commission has emphatically stated in a series of thoughtful reports that (1) the guidelines' 100:1 ratio overstates the seriousness of crack offenses and (2) the crack guidelines undermine the goals set forth by Congress in 3553(a).  (Consider, e.g., Chapter 8 of the US Sentencing Commission's 2002 Report: "After carefully considering all of the information currently available ... the Commission firmly and unanimously believes that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act.")

Put differently, the USSC has repeatedly documented that the crack guidelines recommend sentences that are "greater than necessary" to achieve the purposes of § 3553(a)(2)!  Given the USSC's findings, the parsimony command of § 3553(a) supports — arguably even requires — a district court's decision not to follow the crack guidelines. Consequently, upon appellate review, it is hard to understand what is "unreasonable" about a district court's decision to follow Congress's parsimony command in light of the USSC's expert work by sentencing below the crack guidelines.  Only the anti-parsimony pandemic explains how courts and commentators can read § 3553(a) to require reversing a district court's decision not to follow guidelines that the USSC has repeatedly said are "greater than necessary" to achieve the purposes of punishment.

Eric's note and the Pho decision make much of (a debatable view of) congressional intent.  But, whatever one's view of congressional intent, shouldn't post-Booker sentencing and analysis of the crack guidelines focus on the express and duly enacted text of 3553(a)?

June 24, 2006 at 09:38 AM | Permalink


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