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August 22, 2006

The central flaw in reasonableness review

Recent circuit opinions have helped me see the one central flaw that infects reasonableness review after Booker.  Put simply, circuits have framed and judged reasonableness in reference to the guidelines, when they should be framing and judging reasonableness in reference to all the provisions of 3553(a).

In the Booker remedial opinion, Justice Breyer explains that "Section 3553(a) ... sets forth numerous factors that guide sentencing.  Those factors in turn will guide appellate courts ... in determining whether a sentence is unreasonable."  Even when imposing within-guideline sentences, most district courts seem attentive to at least some of the "numerous factors" in 3553(a).  But nearly all circuit court decisions are focused excessively on the guidelines when judging reasonableness.

Circuits declaring within-guideline sentences "presumptively reasonable" and the ugly patterns of reasonableness review highlight the guideline-centric approach to reasonableness.  But, as I stressed in my recent Yale Law Journal Pocket Part commentary, Congress's nuanced instructions in 3553(a) set out the guidelines as just one factor among many — and not the first or most important one.  Moreover, the US Sentencing Commission has never fully explored — nor even formally addressed — whether the guidelines comply with the central command of 3553(a) directing courts to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment.  On the contrary, the USSC has often stated that certain guidelines — such as crack guidelines and the severe career-offender enhancement — undermine the sentencing goals set forth by Congress in 3553(a)(2).

In this recent post, I pondered when and how the Supreme Court might take up a case concerning reasonableness review.  Now I am thinking that SCOTUS should simply start its new Term with a summary reversal clarifying that reasonableness review must be informed, as the Court said in Booker, by the "numerous factors" of 3553(a) and not just the guidelines.  I am not holding my breath, but will at least dream, that the Justices will seek to ensure that what Congress expressly set forth in 3553(a) and what the Court clearly said in Booker gets taken seriously.

August 22, 2006 at 08:57 AM | Permalink


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That observation is precisely correct. David D'Addio's article in the Yale Law & Policy Review was the first place I saw this problem articulated with clarity. His solution, though not my policy preference, is the most coherent one possible given the mess Booker left us with. I highly recommend the article to anyone interested in this issue. David J. D'Addio, Sentencing After Booker: The Impact of Appellate Review on Defendants' Rights, 24 Yale L. & Pol'y Rev. 173 (2006).

Posted by: JDV | Aug 22, 2006 9:26:58 AM

It should also be noted that the language you quote from Justice Breyer is the only part of that opinion that even hints that anything other than the Guidelines is important. The rest of the remedial opinion encourages the circuit courts to do exactly what they have been doing.

Posted by: JDV | Aug 22, 2006 9:49:44 AM

That's not exactly accurate, JDV, as other parts of the remedial opinion stress all the provisions of 3553(a). Moreover, and perhaps more critically, the merits portion of Booker makes clear that business as usual would be unconstitutional. And, of course, whatever the Justices say in Booker, the plain text of 3553(a) is what's arguably most important. And 3553(a) is obviously NOT guideline-centric.

Posted by: Doug B. | Aug 22, 2006 10:42:56 AM

Perhaps I am just more cynical, but I think Justice Breyer's statement that circuit courts were "already familiar" with reasonableness review from "the past two decades of appellate practice" is quite a clear directive to circuit courts to use Section 3553(a) "as they have in the past". That past is quite a Guidelines-centric one.

Your reference to the constitutional ruling raises what I find to be the most intriguing part of post-Booker circuit cases. It does seem as if they have all forgotten that Justice Stevens's opinion even exists. It is the rare opinion that attempts to balance the two. Perhaps this focus on the remedial opinion is some indication that "work-a-day" courts don't much go for the heady stuff and really only want to know what the Supreme Court wants them to DO. I would be interested in your thoughts on this.

And though I am normally a plain meaning type myself, I will suggest (tounge-in-cheek) that given the legislative nature of the remedial opinion, what Section 3553(a) actually says is of little practical import. Despite what Justice Breyer said with reference to 3553(a), that so many circuit judges have discerned a Guidelines-centric tone from his opinion gives the lie to anything he might say to the contrary. And yes, this is unconstitutional.

Posted by: JDV | Aug 22, 2006 11:20:55 AM

I think the root of the problem is that sentencing judges need some idea of where to begin when fashioning a sentence, and they're starting with the guidelines. Although defense attorneys, like myself, argue that judges should not start with the guidelines because they've been told to consider all of the 3553(a) factors, I have to wonder whether that's a practical solution. I'd like to think that all sentencing judges want to ensure that the sentences they're handing out are fair in comparison to the sentences that similarly situated defendants who committed similar crimes are serving throughout the country. It seems that the only way to do that is to give them some kind of common frame of reference, and if it's not the guidelines, we need to come up with something else.

Of course, this doesn't explain why, even when faced with a unique defendant who can point to heinous circumstances in his life that quite obviously warrant some leniency, so many judges are refusing to "depart" from the now-advisory guidelines. They aren't even doing it in those cases. And as for the crack guidelines, don't even get me started. Some judges are completely devoted to the guidelines even after Booker, but they aren't willing to defer to the Sentencing Commission to the same degree when it tells them again and again that the crack guidelines are unreasonable.

Posted by: Moira | Aug 22, 2006 3:21:17 PM

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