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July 13, 2010

Wasn't pre-Booker federal sentencing an "ongoing source of discord, disunity, and criticism"?

There are so many intriguing aspects of the letter sent last month by the Justice Department's Criminal Division to the US Sentencing Commission (basics here), and I am still reflecting on DOJ's current assessment and criticism of 2010 post-Bookerrealities.  But, upon my first re-read of the DOJ letter, this introductory paragraph jumped out at me:

[W]e think the existence of these dichotomous regimes [with some judges regularly sentencing within the guidelines and others frequently sentencing outside the guidelines] will, over time, breed disrespect for the federal courts.  Trust and confidence in the criminal justice system is critical to successfully bringing justice to all and keeping crime rates low. To the extent that federal sentencing is an ongoing source of discord, disunity, and criticism, the reputation of the federal courts will be seriously damaged and the effectiveness of federal criminal justice will be compromised.

I do not disagree with any of the sentiments in this paragraph, but it seems to incorporate an implicit assertion that all was well with federal sentencing law and practice before Booker five years ago transformed the guidelines from rigid mandates into general advice.  As the question in the title to this post spotlights, in my view, federal sentencing before Booker was "an ongoing source of discord, disunity, and criticism" and that reality seriously damaged the reputation of federal courts and the effectiveness of federal criminal justice.  Indeed, I think it fair to assert that the amount of discord and criticism of the federal sentencing system has been reduced by Booker, though arguably the amount of disunity may be increasing.

The broader issue that the DOJ letter and this post raises concerns the appropriate benchmark for assessing and criticizing modern post-Booker federal sentencing realities.  There are clearly many problems with the current advisory federal sentencing regime.  But I continue to believe that most of these problems are generally less bad now than they were before Booker --- though the current problems may now be more transparant and irksome (especially to prosecutors who generally see increase judicial discretion being used to reduce sentence lengths relative to the guidelines).  Moreover, the fact that a lot of the problems with federal sentencing are now more transparant after Booker serves itself as a mark in Booker's favor because problems that are easier to see are generally easier to fix.

July 13, 2010 at 08:57 AM | Permalink


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The paragraph you quoted makes it sound like the author of the letter is are whining because the prosecutors lost a good deal of control over the process. That control in now in the hands of neutral decisionmakers who exercise judgment, i.e., judges. To the extent prosecutors believe sentences should be more uniform, perhaps the sentencing guidelines should be amended to reflect the fact that a good number of judges believe sentences under the guidelines are too harsh (re: you may some reference to the appropriate benchmark)? After all, sentencing has historically been in the hands of the judiciary and, if I recall correctly, Mistretta v. United States, 488 U.S. 361 (1989), upheld the the guidelines partially based on the fact that the sentencing commission was placed in the judiciary branch. Mistretta acknowledged that it was proper for Congress to place the Commission within the judicial branch due to the fact that sentencing is within the “central mission of the judiciary” and was based on Congress’ “‘strong feeling’ that sentencing has been and should remain ‘primarily a judicial function.’” 488 U.S. at 389-90. Again, perhaps the guidelines should be amended to reflect the reality that a great many (large majority of??) judges believe they are too harsh? Perhaps there would be less of "discord" in sentencing if this happened?

Posted by: Tim Holloway | Jul 13, 2010 9:38:14 AM

Answer to the question in your post heading: Of course it was.

Posted by: another FPD | Jul 13, 2010 12:15:21 PM

Is the DoJ willing to have a mandatory system where any and all enhancements (as well as base quantities) are proven to the jury beyond a reasonable doubt? This change would appear to accomodate a desire for more uniform sentencing while still respecting the jury system.

Posted by: Mark Pickrell | Jul 13, 2010 1:30:43 PM

As would a variation of the system Mark Pickrell mentions, a variation Prof. Berman has proposed: a mandatory system where any offense-related enhancements are proven to a jury BRD, but offender-related enhancements are found by the judge by a POE.

Posted by: another FPD | Jul 13, 2010 1:56:38 PM

@another FPD: I believe that if the guidelines are mandatory, the only offender-related enhancement that can be left to the judge is the fact of a prior conviction.

Posted by: Marc Shepherd | Jul 13, 2010 2:01:08 PM

Wasn't pre-Booker federal sentencing an "ongoing source of discord, disunity, and criticism"?

Yes, but only to judges, defense attorneys, defendants, families and taxpayers. It was great for the DOJ. Hence the letter.

Posted by: Matt | Jul 13, 2010 4:15:28 PM

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