Why March to a Uniform Beat?: Adding Honesty and Proportionality to the Tune of Federal Sentencing

51 Pages Posted: 26 Aug 2009 Last revised: 14 Mar 2010

Date Written: August 14, 2009


The Federal Sentencing Guidelines were initially created to increase uniformity, honesty, and proportionality in sentencing by diminishing the influence of individual judges’ biases in the sentencing determination. However, the Supreme Court rendered the Guidelines advisory in United States v. Booker and directed circuit courts to review sentences for “unreasonableness”. Since Booker, most of the Supreme Court’s attention has been focused on ensuring the preservation of uniformity, rather than recognizing the continued importance of honesty and proportionality in bias reduction. The assumption, it seems, is that once uniformity in sentencing is achieved then the potential of judicial bias has been erased. However, judicial bias in sentencing is not eradicated by the form of uniformity brought by sentencing guidelines alone. Despite this, the Supreme Court has largely ignored the additional purposes - honesty and proportionality - in sentencing. Recently, in United States v. Gall, the Supreme Court explained that in order for a sentence to be procedurally reasonable, district courts must first calculate and consider the proper Guidelines range, consider the §3553(a) sentencing factors, and adequately explain the chosen sentence. However, out of those three requirements for procedural reasonableness, only the requirement that district courts begin the sentencing process by calculating the applicable Guidelines range –the factor that the Court considers to be the most closely related to ensuring uniformity - has been given any force. The requirements to consider the §3553(a) factors and adequately explain the sentence have fallen by the wayside as vague concepts, though these are the requirements that can most effectively ensure the reduction of impermissible bias in sentencing by allowing for a check on both honesty and proportionality. This Article reveals the Supreme Court’s error in maintaining that district courts begin their sentencing determinations by calculating and considering the applicable Sentencing Guidelines range in order for the sentence to be procedurally reasonable. Not only is this directive based on a misreading of the sentencing statutes, but it also drowns out the voice that could be given to the honesty and proportionality goals.

This Article provides an in-depth look at the Guidelines themselves in order to make the argument that the Supreme Court’s approach to sentencing post-Booker is misguided. The Supreme Court’s framework for an advisory Guidelines scheme allows the biases that are already buried in the Guidelines themselves to continue to act as the prevailing factors in sentencing. These biases, whatever the source, counteract Congress’ three-fold purpose in promulgating the Sentencing Guidelines in the first place – honesty, uniformity, and proportionality. The Article also studies the concepts of uniformity, honesty, and proportionality to determine their proper role in sentencing. The new, advisory Guidelines system provides the opportunity for the Court to give meaning to the requirement that sentences be based on §3553(a) factors, in order to create uniformity in sentencing purposes rather than just in sentencing results, and to call for real explanations by district judges justifying those sentences. Therefore, this Article proposes that the Supreme Court: (1) do away with the suggestion that district courts begin the sentencing process by calculating the Guidelines range; and (2) bolster the requirement that district courts explain their sentences using the §3553(a) factors. Together, these steps will prevent sentencing courts from using the Guidelines as a shield behind which to hide bias in the name of uniformity and will provide a means of measuring a district court’s compliance with uniformity, honesty, and proportionality.

Keywords: sentencing, criminal procedure

Suggested Citation

Exum, Jelani, Why March to a Uniform Beat?: Adding Honesty and Proportionality to the Tune of Federal Sentencing (August 14, 2009). Texas Journal on Civil Liberties and Civil Rights, Vol. 15, No. 2, 2010. Available at SSRN: https://ssrn.com/abstract=1461732

Jelani Exum (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

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