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February 21, 2008

Exploring the relationship between departures and variances after Booker

Later this Term, the Supreme Court will hear argument in Irizarry (basics here and here), a case which may force the Justice to directly explore the status and relationship of "traditional departures" and "Booker variances" in an advisory guideline system.  Because I think these issues are very important (and yet still very under-theorized even as the Irizarry case is coming before SCOTUS), I am pleased to be able to spotlight a new version of an important note authored by a former student titled "The Benefits of Departure Obsolescence: Achieving the Purposes of Sentencing in the Post-Booker World."   Here is the abstract from SSRN:

Since the Supreme Court decided United States v. Booker, much scholarly debate has focused on what weight the Sentencing Guidelines should be given. But this focus does not advance what should be the central issue in all sentencing decisions: whether the purposes of sentencing are being fulfilled by the sentence imposed.  This Note advocates that the Booker opinion not only created a system of advisory Guidelines, but also was an attempt to refocus the sentencing inquiry on 18 U.S.C. Section 3553(a).  Nowhere is this more relevant than in the case of a defendant seeking a reduced sentence.  Prior to Booker, this was limited to narrowly defined departures from the applicable Guideline Sentencing Range.  But because pre-Booker departure decisions were largely devoid of Section 3553(a) analysis, many departures were purposeless. Therefore, pre-Booker departure precedent should largely be discarded. Thus far, only the Seventh Circuit (and the Ninth Circuit to a lesser degree) has declared departures obsolete. That said, one very positive development post-Booker has been the increasing usage of the vastly superior "variance" as opposed to traditional departures. The Supreme Court has recently given its blessing to the increased judicial discretion post-Booker, perhaps best typified by the variance concept.  This Note explores why departure "obsolescence" should be explicitly recognized in the wake of these post-Booker developments.

February 21, 2008 at 09:51 AM | Permalink


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I chuckle when I hear academics exult that Booker served to " refocus the sentencing inquiry on 18 U.S.C. 3553 (a). There is no great wisdom in this section. It can be read to support any position or predilection. I believe it was Judge Posner who said it best--3553 (a) factors are vague and undirectional. To that I would add unavailing.

Posted by: anonymous | Feb 21, 2008 12:43:03 PM

anonymous, do you share the same contempt for other statutory provisions enacted by Congress? How about, say, the really precise Sherman Antitrust Act?

Or, let's not even bother with congressional acts and put your focus on constitutional amendments. After all, everyone from Judge Posner on down surely knows that "[t]here is no great wisdom in [any section of the First or Second or Fourth or Fifth or Sixth or Eleventh Amendments]. It can be read to support any position or predilection."

I chuckle when I hear judges and anonymous commentors assert that, because duly enacted text is "vague and undirectional," then judges should feel free to ignore them. If that's really your view, I suppose I have a (living?) Constitution to sell you.

Posted by: Doug B. | Feb 21, 2008 1:47:36 PM

I'm not arguing the statute should be ignored --only that its vagueness will undoubtedly result in the kind of disparate sentences that the Sentencing Reform act sought to remedy.

Posted by: anonymous | Feb 21, 2008 2:26:32 PM

"vague and undirectional" is jive talk for "judgie no like". There is nothing vauge or undirectional about those sections, Posner just doesn't like the consequnces of implimenting those sections so he pretends he doesn't get it. Just like the cop who played dumb and said, "The fifth admendment, what's that?"

Posted by: Daniel T | Feb 21, 2008 2:32:21 PM

Daniel T.

Judges love 3553 (a) because almost any sentence can find support in its broad and sometimes antithetical language.

Posted by: anonymous | Feb 21, 2008 2:54:02 PM

anonymous, 3553(a) came into being as part of Sentencing Reform Act (SRA), so it is kind of comical that you think judges trying hard to give meaning to the provisions of the SRA will undermine the goals of the SRA. I suppose you could (and would?) also say judges should not try to give content to the vague terms of the US Constitution because doing so might undermine the goals of the US Constitution.

To make more sense, perhaps your point is that in the wake of Booker, we should not expect judges following only 3553(a) will effectuate the goals of the SRA as well as did judges following mandatory guidelines. Of course, if that's you real complaint, it is not with the text of 3553(a), but rather with the rememdy that Justice Breyer created to preserve judicial fact-finding in Booker. You should lament the Booker remedy, not the statutory text that Breyer turned to in an effort to justify his remedy.

But then, of course, if you really want to say Congress just doesn't believe in the Booker remedy and 3553(a) as an effectuation if its true sentencing reform goals, you have to deal with the reality that Congress has now been okay with Booker as the law of the land for more than 3 years. Hmmmm....

In short, I keep having a chuckle when you keep changing your tune. And, of course, you've already cited a judge who apparently does not like 3553(a) -- namely Judge Posner --- but maybe you meant to be suggesting he is not really a judge because he shares your contempt for the work of Congress in 3553(a).

Posted by: Doug B. | Feb 21, 2008 3:05:40 PM

Doug B

3553 (a) is being asked to fill a role for which it was not intended. The SRA was predicated on a mandatory guideline system. Everything else is basically statute filler. My concern with focusing on 3553 (a) factors is that unwarranted disparity will inevitably rear its ugly head.

Posted by: anonymous | Feb 21, 2008 8:15:13 PM

Anonymous -- you clearly know little about the guidelines if you think that they do not themselves promote unwarranted disparity and unwarranted uniformity. "Unwarranted" is the key. The alternative, which you seem to prefer, is blind uniformity, something the Supreme Court wisely rejected in both Gall (rejecting guideline limits on individual circumstances) and Kimbrough (rejecting the crack guidelines, and all drug guidelines, as not based on empirical evidence).

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