At the Crossroads of the Three Branches: The U.S. Sentencing Commission's Attempts to Achieve Sentencing Reform in the Midst of Inter-Branch Power Struggles
The Journal of Law and Politics University of Virginia School of Law, Forthcoming
75 Pages Posted: 4 Mar 2011
Date Written: February 28, 2011
During the past quarter-century, federal sentencing policy has been impacted by struggles among the three branches of government, with each branch possessing a legitimate stake in formulating the policy but at times exerting inordinate influence at the expense of the other branches. The United States Sentencing Commission has faced – and will continue to face – enormous challenges in its mission to serve as the neutral expert at the intersection of the three branches regarding federal sentencing policy.
In the same manner in which the Commission has had to adjust to dramatic changes in the past (such as the PROTECT Act and the Supreme Court’s decision in Booker v. United States), I envision that additional changes will occur in the foreseeable future and the Commission will yet again be forced to adjust. In particular, I predict that, despite allowing the advisory guidelines system created by Court to exist for over six years to date, Congress eventually will retool the current system because of growing sentencing disparities – both inter-judge disparities and demographic disparities, the same type which caused bipartisan support for the Sentencing Reform Act of 1984. With this in mind, and as a consequence of its unique vantage point of being at the crossroads of the three branches of government, the Sentencing Commission must assume a leadership role in developing an improved federal sentencing scheme that recognizes the legitimate interests of each branch.
I urge the Commission, working together with Congress and executive branch, to reformulate the guidelines in a manner that helps reduce unwarranted disparities while, at the same time, remove the main obstacle that has hindered lasting achievement of the aspirations of the SRA: the undue complexity and rigidity of the guidelines system, which have resulted in large part from congressional directives and draconian mandatory minimum statutes and which have caused increasing numbers of judges to resist (and, after Booker, in some cases entirely reject) substantial portions of the current guidelines. The Commission should streamline individual guidelines (primarily by reducing the amount of numeric aggravating factors in Chapters Two and Three) and also simplify the Sentencing Table in Chapter Five of the Guidelines Manual to provide for fewer and broader sentencing ranges. To reduce unwarranted sentencing disparities, Congress should make the guidelines presumptive (rather than advisory) and provide for meaningful appellate review to generally keep sentences within the presumptive ranges (which also would make mandatory minimum statutory penalties unnecessary). Finally, in order to comply with the Court’s decisions in Blakely v. Washington and later Booker, juries would be required to find aggravating facts that raise the “ceilings” of guideline ranges. Yet broader ranges and fewer aggravating factors likely would make such jury findings a relatively uncommon event.
Such a presumptive guideline system subject to meaningful appellate review would meet Congress’s and the executive branch’s valid desire to minimize disparate sentences being imposed on similarly situated defendants who committed similar offenses. At the same time, however, broader sentencing ranges and fewer mandatory aggravating factors would allow sentencing judges to better account for individual offender and offense characteristics, thereby allowing judges to carry out their traditional role in determining fair and just sentences.
My proposed system would not be perfect; no sentencing system ever will come close to being perfect. But it would be a genuine compromise that would provide something meaningful to all three branches. At the very least, my proposal is intended to advance the dialogue regarding changes that are clearly needed.
JEL Classification: K14
Suggested Citation: Suggested Citation