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July 19, 2010

"In many cases the judges who diverge from the advisory Guidelines ranges will do so for the wrong reasons"

The title of this post is a sentence from this intriguing new commentary now on SSRN from Professor Jonathan Masur, which is titled simply "Booker Reconsidered."  There is a lot worth saying about this must-read piece, and to start I welcome reader reactions to both the key sentence quoted in the post title and this key paragraph of the author's analysis that immediately precedes this key sentence (with footnotes removed):

The result [of Booker making the guidelines advisory] is a system that is likely to underperform the prior regime in several important respects.  There will certainly be cases in which judges will be better able to tailor sentences to fit offenders and their crimes under the advisory Guidelines. This ability to consider penalties on a case-by-case basis is, of course, the principal advantage of charging judges with the task of sentencing.  Yet the cost of endowing the federal courts with this modicum of flexibility in sentencing is that racial and ideological disparities are likely to reappear, possibly in even more pernicious form.  And that cost may not be balanced by a corresponding benefit from reinvigorating the role of the courts.

I greatly appreciate the effort to bring some cost-benefit analysis into the Booker debate, as well as Professor Masur's focus on the "division of institutional responsibilities" in his analysis.  But I find curious and troublesome that the statutory provisions of 3553(a), which Booker preserved as binding sentencing law, get scant attention in this piece.   Indeed, this piece strikes me as another example of both Bookerand federal sentencing judges being criticized because Congress appears unwilling to do any of the hard sentencing work that the Blakely and Booker constitutional rulings would now seem to require for the construction of an ideal sentencing system.

And here is what I find especially curious about the sentence I have quoted in my post title: if/when judges are doing their jobs properly after Booker, in all cases the judges who diverge from the advisory Guidelines ranges should and must do so based only on the mandatory considerations set out by Congress in the text of 3553(a).  If in fact the "wrong reasons" are being used by district judges in many case in light of the text of 3553(a), circuit judges should be reversing more sentences.  Alternatively, if district judges are generally complying with the text of 3553(a) when deciding to vary from the guidelines, there is something peculiar about the assertion that these variances are for the wrong reasons in many cases.

July 19, 2010 at 11:12 AM | Permalink


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I cannot be overemphasized, nor repeated too often, that what the Supreme Court did in Booker was not, as usually said, "make the Guidelines advisory." What the Court did was find unconstitutional under the Sixth Amendment jury clause the language in 18 USC 3553(b) that made sentencing within the guidelines range virtually mandatory, even though the top of the guidelines range was determined by facts not found by a jury or admitted in a plea. The Court then proceeded to determine that this small part of the statute (along with a very few related provisions of the SRA) was severable, and on that basis struck it from the statute -- leaving in place an entirely coherent statutory sentencing system. That post-severance system has two key mandatory features. First, there is the mandatory procedural obligation to "consider" about a dozen factors (listed under 7 subsections of 3553(a)), one of which (the 4th) is the properly-computed guidelines range. Then, after "considering" all of those factors, none of which is inherently more weighty than any other, the statute (post-severance) imposes a mandatory substantive obligation -- to impose a sentence which is "sufficient, but not greater than necessary" to achieve an appropriate balance of the various purposes of the criminal justice system (as set forth under 3553(a)(2)). This is a statutory system, and the lawfulness of sentences should be judged, on appeal, solely on the basis of the district court's compliance with that post-severance statutory system, just as if it had been enacted in that form by Congress in the first place. If Prof. Masur's article doesn't start from that point, it misses the point.

Posted by: Peter G | Jul 20, 2010 1:36:14 PM

I don't know this professor from Adam but I think he is full of it. If district court judges rely on impermissible factors they are summarily reversed.Who the heck is he to say a reason is "wrong" - is he just another pointy headed academic living in his dream world -how many folks is this dude sentenced for the "right" reasons ..please......

Posted by: Judge T | Jul 20, 2010 6:51:18 PM

I just read his bio ...does not appear he ever represented a defendant in a criminal case let alone in federal court...his closet encounter to a sentencing appears to be from TV shows....I am so sick of these academics with zero real world expereinces telling experienced trail lawyers turned judges what to do...makes me gag

Posted by: Judge T | Jul 21, 2010 8:40:39 PM

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