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December 1, 2021

Calling out SCOTUS for failing to take up circuit splits over the federal sentencing guidelines

In this post last month, I noted this notable new paper by Dawinder Sidhu titled "Sentencing Guidelines Abstention," which astutely assails the US Supreme Court for its "refusal to review [circuit] splits involving federal sentencing policy."  I am now pleased to see Dawinder putting forward his important points in this new HIll commentary headlined "The Supreme Court's criminal justice blind spot."  I recommend the full piece and here are excerpts:

A primary role of the Supreme Court is to resolve differences among the federal appeals courts when those courts reach different conclusions on the same questions of law.  But for 30 years, the Supreme Court has refused to perform this essential role when the disagreements concern federal sentencing guidelines.  The court’s inaction has allowed uncertainty and disparities to fester in this critical area of criminal justice....

In [a] 1991 opinion, the court ... added extraneous language [in an early case address a conflict over a guideline that the US Sentencing Commission was in the process of amending], writing that because the commission possessed authority to amend the guidelines in response to interpretive conflicts, the court should be “more restrained and circumspect in … resolving such conflicts.”

Because this language was unnecessary to the disposition of the case, it should have no precedential weight.   At most, this case supports the unremarkable proposition that, when the commission’s amendment process is under way regarding a guideline that triggers a judicial conflict, the court should exercise restraint and allow the commission to complete its amendment process.  The court regularly abstains from interfering with parallel administrative or state proceedings.  Deferring to the commission during the course of a simultaneous amendment process would be consistent with this respect for alternative decisional bodies.

The problem, however, is that the court has refused to hear all guideline conflicts, not just those the commission is actively addressing.  In adopting this broad position, the court has ceded its role of ironing out judicial conflicts to the commission.  As then-Judge Samuel Alito recognized [in this FSR article], “No other federal agency — in any branch — has ever performed a role anything like it.”  Indeed, the court does not forgo consideration of a case when Congress or an administrative agency may one day amend a statute or regulation producing a conflict.

This anomaly has real-life consequences.  This year, Justices Neil Gorsuch and Sonia Sotomayor believed that the court should not hear a sentencing guidelines case, notwithstanding the fact that it raised an “important and longstanding split” among the federal appeals courts. They reasoned that the commission should “address the issue in the first instance.”  But the justices conceded that until the commission resolves the split, “similarly situated defendants may receive substantially different sentences depending on the jurisdiction in which they are sentenced,” with the disparities ranging by a factor of “years” and spanning from a “fixed-term” to a “life sentence.”

This knowingly perpetuated uncertainty and disparity in the federal courts.  To make matters worse, the court did so knowing that the commission has been without a quorum for almost three years. As such, the court punted a conflict to an agency incapable of amending the guidelines or resolving conflicts.  This isn’t the first time the commission has lacked a quorum for a significant period.  Even when the commission is fully functional, it only has the capacity to take on some of the conflicts that exist.  This is not to disparage the commission but to call into question the Supreme Court’s hoisting the responsibility of addressing guideline conflicts onto the shoulders of a regularly shorthanded commission.

Anyone interested in coherence and consistency in criminal justice should be troubled by the court’s refusal to review conflicts involving the federal sentencing guidelines.  It is one thing to be discerning in case selection; it is another to step aside altogether from guideline cases that implicate the fair and uniform administration of justice.

December 1, 2021 at 04:38 PM | Permalink


Confused by: "Even when the commission is fully functional, it only has the capacity to take on some of the conflicts that exist."

The Commission has far, far greater bandwidth to address intercircuit conflicts than the Court, which must address the Constitution, 50 titles of the USC, and (at a lower level of priority) rules and regulations of hundreds of agencies. Its hard to imagine a remotely certworthy conflict that a Commission with quorum lacks sufficient bandwidth to address.

Posted by: Jason | Dec 1, 2021 10:41:23 PM

I am tempted to guess that the author means that even a fully functional USSC might be disinclined and/or feel unable to address guideline conflicts that implicate constitutional or statutory issues. For example, there are now various lower court splits, based on SCOTUS admin law doctrines, over whether and how certain guideline commentary can be be applied to explicate the application of certain guidelines. I expect SCOTUS will at some point take some version of this issue up, in part because I suspect most recognize that it would be hard for the USSC to cleanly resolve it.

That said, Jason, your point is sound that a fully functional USSC is generally going to have the bandwidth needed to address circuit conflicts more efficiently and effectively than SCOTUS. But I am with the author in thinking that this basic reality does not alone justify SCOTUS entirely abdicating it reviewing role in this arena. And that is especially true when we have gone now many years without a fully functional USSC.

Posted by: Doug B. | Dec 2, 2021 9:42:40 AM

Given that the guidelines are now entirely advisory I suspect the Court simply doesn't care. District court judges can choose to apply whatever weight they care to and so long as the outcome is even marginally explained that is just fine with a majority of the justices.

Posted by: Soronel Haetir | Dec 2, 2021 3:47:57 PM

Jason, I apologize for my lack of clarity. The point that I attempted to make is that the Commission has identified more circuit splits than it has the ability to address through the amendment process. In one year, for example, the Commission found forty conflicts involving the Guidelines, and was able to take up only five of them. This limited capacity, as Professor Berman notes, cuts against the Court's categorical expectation that the Commission can or will address Guideline splits in the first instance. I agree, though, that relative to the Court, the Commission with a quorum has a greater ability to respond to these splits. Again, my apologies for the confusion. Dave

Posted by: Dave | Dec 2, 2021 5:22:59 PM

In theory it is true that the guidelines are entirely advisory, but in reality the guidelines range is, by far, the most important factor when it comes to sentencing at least where I come from. The chances of a judge being reversed for imposing a within guidelines sentence are slim to none and judges hate being reversed. I believe I practice in the most conservative circuit in the country and look wistfully at some of the opinions coming out of other parts of the country. I am a defense attorney, mostly appeals.

Posted by: Alan | Dec 2, 2021 5:28:45 PM

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