Discretion Without Guidance: The Need to Give Meaning to 3553 after Booker and its Progeny

44 Pages Posted: 17 Jul 2008 Last revised: 10 Aug 2009

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: February 1, 2008


The exercise of the discretion accorded to a judge in determining the sentence of a convicted criminal offender bears directly on the coherence and the legitimacy of any criminal justice system. The United States federal criminal sentencing system has, at various points in time over the past century, employed schemes that have approached either the one extreme of unfettered judicial discretion or the other extreme of highly restricted judicial discretion. In January, 2005, the United States Supreme Court held in United States v. Booker that the mandatory federal sentencing guidelines, the source of the strict restriction on judicial discretion for the twenty years prior, were no longer mandatory, but merely advisory.

Three years later, there is still significant confusion concerning the manner in which the federal sentencing statute, 18 U.S.C. 3553, should be applied to determine the appropriate sentence in a particular case. The cases decided by the Supreme Court this term, Gall and Kimbrough, and the decision last term in Rita all address different aspects of the relative weight of the advisory guidelines in sentencing and the appellate review of different levels of reliance on the guidelines. None of this litigation, however, concerns the inherent conflicts in the applicable statutory provisions, particularly the application of the parsimony requirement that the sentence be "sufficient but not greater than necessary" to achieve each of the four purposes of sentencing, each of which likely dictate a significantly different outcome and certainly invoke and likewise forbid consideration of different criteria in sentencing.

This Article argues that for sentencing to be both reasoned and consistent, clear substantive meaning must be given to the application of the conflicting provisions of 18 U.S.C. 3553. Using an English statute as an example, the Article proposes that Congress remedy the confusion by prioritizing among the competing aims it articulates in 3553. After briefly suggesting why such action is unlikely, the Article assesses the current combination of elements of both indeterminate sentencing and mandatory guidelines schemes after this term's cases. It concludes that, putting purposes aside, an assessment of the current state of affairs in federal sentencing depends in large part upon one's normative view of the sentencing guidelines.

Keywords: Sentencing, Commission, Booker, Rita, Kimbrough, Gall, discretion

Suggested Citation

Berry, William W., Discretion Without Guidance: The Need to Give Meaning to 3553 after Booker and its Progeny (February 1, 2008). Connecticut Law Review, Vol. 40, No. 3, 2008, Available at SSRN: https://ssrn.com/abstract=1162287

William W. Berry (Contact Author)

University of Mississippi School of Law ( email )

481 Chucky Mullins Drive
P.O. Box 1848
University, MS 38677
United States
6629156859 (Phone)

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