113 Pages Posted: 17 Jan 2012 Last revised: 23 Jun 2012
Date Written: January 16, 2012
For the first time, this paper examines the fateful 1987 statutory amendment that was interpreted by the Supreme Court to authorize the Sentencing Commission to make its guidelines, policy statements, and commentary binding on sentencing judges. The mandatory nature of the Commission's product ultimately led the Court to hold in United States v. Booker (2005) that the guidelines were unconstitutional. The advisory guideline system wrought by Booker has brought balance to federal sentencing and has reduced unwarranted disparity. The proposal of Judge (and former Commission Chair) William K. Sessions for Congress to reenact mandatory guidelines raises substantial constitutional issues, including separation-of-powers issues not previously addressed by the Supreme Court. The recent proposals of the Commission to establish more tightly constraining Guidelines would appear to violate Booker and subsequent cases. The purported bases for these proposals, in particular a Commission study concluding that racial disparity has increased, are unproven and methodologically flawed. There is no need for a "Booker fix"; Booker is the fix.
Keywords: federal sentencing guidelines, United States v. Booker, multivariate analysis, racial discrimination, unwarranted disparity, The Sentencing Reform Act of 1984, the Sentencing Act of 1987, Sessions proposal, United States Sentencing Commission
JEL Classification: K14
Suggested Citation: Suggested Citation