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September 26, 2011

New call for a (long overdue?) legislative and USSC fix to Booker

Matt Miner, who not long ago served as former Republican staff director for the Senate Judiciary Committee (and now is a partner at White & Case), has this notable new commentary on federal sentencing in today's National Law Journal.  The piece is headlined "It's time to fix our sentencing laws; Years after the Supreme Court put the ball in Congress' court, commission can finally spur action."  Here are excerpts:

The U.S. Sentencing Commission is confronting a challenge to its own existence.  Critics of the commission's budget and inaction on sentencing reform have begun to call for massive cutbacks and even full elimination of the commission.  Yet unlike other agencies that face similar crises, the commission has the power to propose reforms to justify and strengthen its role.

For more than six years — since the U.S. Supreme Court invalidated parts of the federal law governing sentencing policy in Booker v. U.S. — courts have increasingly disregarded the federal sentencing guidelines.  At the same time, racial disparities have increased. The Supreme Court called for policymakers to respond, stating, "The ball now lies in Congress' court."  But more than a half-decade later, neither Congress nor the commission has acted.

The time for action is now, and the commission has the opportunity to urge changes to restore order to our system.  Given the impact of the commission's reports on crack-cocaine sentencing — resulting in passage of the Fair Sentencing Act — a commission-led Booker-fix proposal could be a game changer....

Since Booker, courts have drifted farther from guideline-based sentences, with many courts applying the guidelines less than half the time.  Even more troubling, racial disparities in federal sentencing are on the rise.  According to a recent commission report on demographic disparities post-Booker, the difference in sentences given to black versus white defendants has "been increasing steadily since that decision."

Sadly, racial and educational disparities have grown in a system that is increasingly determined by the judge a defendant draws.  Making matters worse, appellate judges find themselves out of the sentencing business due to the lack of a meaningful appellate standard and the broad discretion retained by district courts....

The appetite for reform appears to have returned.  Conservative law professor William Otis has called for a rewrite of the 1984 Sentencing Reform Act to once again make the guidelines mandatory, albeit with certain enhancements decided by a jury.  And past commission chairman William Sessions, a federal judge, has proposed a grand reform to broaden the discretion given judges under the guidelines, while also restoring certainty and consistency to the system by making the guidelines "presumptive" rather than merely "advisory."

Although such reforms may take time, the commission should immediately recommend basic reforms such as codifying an appellate standard to replace the language struck down by Booker.  The Supreme Court made clear that the standard that existed before the 2003 Feeney amendment would withstand constitutional challenge, and that standard is a worthwhile place to start.  More recent Supreme Court decisions, including U.S. v. Rita, provide further components that could be added to the old appellate review standard, including a presumption of reasonableness for properly calculated sentences within the guidelines.  Additionally, the commission should dem­and reforms that require judges to provide a heightened justification for any major departure from the prescribed guideline sentence.

In the absence of congressional action, federal courts will continue to struggle to apply constitutional principles to fill gaps in the sentencing statute.  In essence, courts will be left to legislate from the bench.

I share Mr. Miner's interest in having the US Sentencing Commission and Congress playing a much more active role in managing and bringing greater legal order to the post-Booker sentencing system.  I also think the "lack of a meaningful appellate standard" is a part of the systemic problem with the status quo.  But I think this commentary overlooks at least three critical realities that must play a central role in any future sentencing reform work by the USSC and Congress:

  1. Crime rates are at historic low levels and have been continuing to trend down since Booker (basics blogged here and here);
  2. Federal prison populations are at record high levels, and the resulting overcrowding and costs must be addressed as soon as possible (as the US Justice Department stressed in its recent letter to the USSC);
  3. Before Booker and perhaps now even more after Booker, the defendant's luck in which prosecutor he draws matters a lot more than what judge he draws (which, as noted here, USSC stats always show).

For me, these three critical realities suggest (at least) three essential guideposts for future federal sentencing reform: (1) "Do no harm": we cannot figure out what is "working" with crime reductions, but we should make extra sure any federal sentencing changes do not reverse national crime trends; (2) "Reduce federal incarceration": we cannot afford stuffing a lot more federal prisoners into limited (and expensive) prison space, and thus we should make extra sure any federal sentencing changes do reverse the system's hyper-incarceration tendencies; (3) "Better regulate prosecutors first": initial USSC efforts to limit the impact of prosecutorial discretion have not really worked, and the USSC and Congress ought to start with prosecutorial guidelines/regulations if there is a genuine concern with enduring federal sentencing disparities.

September 26, 2011 at 09:55 AM | Permalink


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miner's suggestions seem all wrong to me. we've already done the stalking horse of racial disparity for the reality of let's punish everyone harshly in the original guidelines. perhaps the better way to fix the disparity would be to put some teeth into appellate review of sentences. it's not that hard to see when some poor, minority defendant gets an outsize sentence, but it is hard to fix when the appellate courts treat review of sentences as a chance for easy disposition numbers instead of thoughtful review. the fundamental error of the guidelines was the hubristic belief that individuals could be quantified, stamped, and barcoded to a sentence. sentencing is tough work, requiring thought and discretion applied to the individual. neither the
Democratic nor the Republican conception of an easy, bureacractic, similar-offense-offender admits that. the guidelines overpunished most of the mostly low-level offenders run through them from 1987 to 2005. if "legal order" means some sort of mandatory system, i say, let's stick with advisory guidelines---however dubious blakely and booker are intellectually. the advisory system has, in my extesnive experience, resulted in the right people getting lower sentences and the right people getting higher sentences. a grid won't do that.

Posted by: big bad wolf | Sep 26, 2011 12:18:52 PM

Great comments, big bad wolf, which reflect a lot of my own sense of both the FSG past and present. That all said, I wonder if there is broad agreement with your view that the post-Booker system has generally "resulted in the right people getting lower sentences and the right people getting higher sentences." Indeed, this is the question I'd like to see the USSC asking of everyone involved in the system --- notably, the distict judges surveyed not long ago were pretty strong in stating their views that the status quo best served 3553(a) goals among viable alternatives. I wonder if many/most POs and defense attorneys and prosecutors would basically agree.

Posted by: Doug B. | Sep 26, 2011 12:39:28 PM

i think that would be an interesting survey, doug. i'd be particularly interested to hear what the POs respond because, in the district in which i work, we have a 20+ year culture of the POs seeing their job as ringing up the highest score possible under the guidelines. it wouldn't surprise me if, in my district, the prosecutors and defense attorneys were in general agreement that advisory/3553 sentencing has made the process more accurate for individuals and the POs were annoyed that judges were disregarding their calculations. the POs got used to determining the sentence; their recs almost always carried the day before booker, a reason why the official rec has never been permitted to be a public document or even available to defense attorneys in this circuit. to those who think i exaggerate how the POs here see themselves, more than several times the various POs have remarked about how the defense is on the other side.

Posted by: big bad wolf | Sep 27, 2011 12:22:14 PM

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