Your Cheatin' Heart(Land): The Long Search for Administrative Sentencing Justice
88 Pages Posted: 8 May 2000
This article explores two central concepts in federal guideline sentencing and explores the role of administrative law in improving federal sentencing. The Sentencing Commission used the concepts of mirroring and heartland to create and defend the legitimacy of the guidelines. The Commission claimed that its original set of guidelines in 1987 mirrored the prior sentencing practices in the federal system, and were therefore presumptively reasonable. The mirroring claim, however, was not a useful or accurate account of the origin of the initial guidelines. The Commission never explained how it translated its various sources of data into a starting point for the guidelines. The claim of mirroring became an oversimple account for a complex blend of strategies that produced the initial guidelines. It made the guidelines more acceptable to judges and other constituencies, and also made the guidelines more difficult to evaluate.
The Commission introduced a second critical concept to guide judges in applying the guidelines and considering departures. The Commission asserted that sentences should remain within the guidelines whenever a case fell within the heartland; a sentencing judge should depart from the guidelines only in unusual cases lying outside of this heartland.
The problem with the heartland concept was its high level of generality. For any given crime or type of offender, there was no way to know what exact factors brought a case within the heartland. Judges could only guess about what sort of case fell within the heart, and presumed that most guideline sentences mirrored prior judicial practice. As a result, judges have been stymied from becoming seriously involved in developing better sentencing law. We reveal the obfuscatory impact of the heartland concept in the courts, focusing on its origins and application in Koon v. United States and a series of more recent cases.
The article closes with a simple proposal for further reform. The failure of the heartland concept - and, we believe, the failure of the guidelines - is in large part a failure of explanations. Thus, we propose a remedy that should coax better explanations out of the Commission. Congress should pass a two-sentence statute that will apply the full judicial review provisions of the Administrative Procedure Act to the Sentencing Commission.
Keywords: Criminal Sentencing, Criminal Procedure, Federal Sentencing Guidelines
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