38 Pages Posted: 9 Apr 2007 Last revised: 21 Feb 2008
Since the Supreme Court decided United States v. Booker, much scholarly debate has focused on what weight the Sentencing Guidelines should be given. But this focus does not advance what should be the central issue in all sentencing decisions: whether the purposes of sentencing are being fulfilled by the sentence imposed. This Note advocates that the Booker opinion not only created a system of advisory Guidelines, but also was an attempt to refocus the sentencing inquiry on 18 U.S.C. Section 3553(a). Nowhere is this more relevant than in the case of a defendant seeking a reduced sentence. Prior to Booker, this was limited to narrowly defined departures from the applicable Guideline Sentencing Range. But because pre-Booker departure decisions were largely devoid of Section 3553(a) analysis, many departures were purposeless. Therefore, pre-Booker departure precedent should largely be discarded. Thus far, only the Seventh Circuit (and the Ninth Circuit to a lesser degree) has declared departures obsolete. That said, one very positive development post-Booker has been the increasing usage of the vastly superior "variance" as opposed to traditional departures. The Supreme Court has recently given its blessing to the increased judicial discretion post-Booker, perhaps best typified by the variance concept. This Note explores why departure "obsolescence" should be explicitly recognized in the wake of these post-Booker developments.
Keywords: sentencing, Guidelines, 3553(a), Booker, Gall, Rita, purposes, punishment, departure, variance, reduced sentence
Suggested Citation: Suggested Citation
Heckman, Lee D., The Benefits of Departure Obsolescence: Achieving the Purposes of Sentencing in the Post-Booker World. Ohio State Law Journal, Vol. 69, p. 149, 2008. Available at SSRN: https://ssrn.com/abstract=979073