INTRODUCTION I. RESPONDING TO BOOKER: WHAT THE SENTENCING COMMISSION CAN DO II. RESPONDING TO BOOKER: WHAT CONGRESS CAN DO A. Structural Deficiencies of the Sentencing Commission B. Establishing a Sentencing Agency in the Judicial Branch III. THE IMPORTANCE OF JUDICIAL REVIEW CONCLUSION
By declaring that the Federal Sentencing Guidelines are no longer fully binding "law" and thereby shifting some discretionary authority back to individual judges, United States v. Booker (1) creates the opportunity to finally vindicate the holding in United States v. Mistretta. (2) Congress can establish a new sentencing agency that is truly located in the judicial branch and that provides independent and expert sentencing guidance to judges. In urging that a new sentencing agency be structurally and functionally located "in the judicial branch," we mean that the judicial nature of the agency should be reflected in its composition, method of appointment, and work product. The last of these would be focused not on lawmaking, but on giving guidance--guidance to judges regarding the exercise of sentencing discretion, and guidance to Congress as to which factors relevant to punishment are best treated as elements of the crime and which are best treated as discretionary sentencing factors. Perhaps most importantly, we urge that the new agency's sentencing guidelines be subject to judicial review equivalent to that provided by the Administrative Procedure Act (APA) (3) in order to ensure legitimacy and credibility with Congress, judges, and the public.
Booker, and the line of cases that preceded it, fundamentally reconceptualized sentencing in the United States; in the wake of this transformation, sentencing law and its administration must also change.
I. RESPONDING TO BOOKER: WHAT THE SENTENCING COMMISSION CAN DO
From its inception, the United States Sentencing Commission has provided neither guidance nor advice. It has provided only rules. These detailed instructions specifying the factors relevant (and not relevant) to sentencing and the precise weight to be given each factor supplanted, rather than guided, judicial sentencing authority. But post-Booker, the present set of Guidelines (we use the term to encompass the Commission's policy statements regarding departures (4)) makes little sense. The effect of Booker is to redact from the Sentencing Reform Act of 1984 two central mandates of that charter: that judges must sentence within the Guidelines range in all but extraordinary cases, (5) and that even when departing from the Guidelines range, judges are bound by the Commission s rules. (6)
Absent these two mandates, the Commission's set of precise, numerical, discretion-free sentencing instructions remains, but it yields at most a proposed sentence for the sentencing judge to consider. Yet post-Booker, the judge's task has only begun, for in addition to determining the Guidelines sentence (including, as noted above, Guidelines-approved departures from the calculated Guidelines range), the judge must consider the several broad purposes of punishment set forth in 18 U.S.C. [section] 3553(a) and impose a sentence that meets the "reasonableness" standard. (7)
The present set of Sentencing Guidelines provides no guidance as to how the courts are to consider or implement these ambitious purposes of sentencing, nor how they are to judge the extent to which the recommended Guidelines sentence achieves some or all of those purposes. Additionally, there are many ambiguities in the Booker-redacted Sentencing Reform Act. Among them is the question of how much deference, if any, courts owe the Sentencing Commission's implicit judgment that its Guidelines (including its departure rules) fully reflect the [section] 3553(a) purposes. The Commission, after all, was directed to consider these same purposes; (8) yet post-Booker, its judgments are no longer given the force of law. Even Justice Breyer, in his remedial opinion in Booker, (9) did not claim that Congress would have enacted the statute that emerged, with its curious combination of detailed and rigid instructions to the Commission, resulting in Guidelines that are only advisory, and accompanied by broadly worded, open-ended instructions to sentencing judges and reviewing courts. The effect is a huge wind-up, only to produce a weak pitch that cannot even make it to home plate, if indeed there remains a home plate after Booker.
Still, until and unless Congress amends or replaces the Sentencing Reform Act, as we will argue it should, the Sentencing Commission must try to make sense of the statute as it now exists and to implement its mandates to the extent feasible. With Booker having torn the heart out of its statutory charter--the provisions that gave the Commission's rules the force of law--it is incumbent upon the Commission to reconsider where to expend its time, energy, and resources. In our view, just as it is no longer legally sufficient for judges simply to apply preordained sentencing rules, so also it is no longer sufficient for the Commission simply to issue such rules. At the least, Booker demands that the Commission devote its resources less to writing specific sentencing rules and more to giving guidance to judges as to how they may best implement the purposes of sentencing set forth in the Sentencing Reform Act. The Commission's statutory mandate relates to all aspects of the sentencing decision, and it makes little sense in the wake of Booker to retain its current Guidelines-range instructions and departure rules.
Simply put, if judges are to judge, as Booker says they are, the Commission must now attend to this reality. As the Commission considers how to recast its work product to provide greater guidance to sentencing judges in their exercise of discretion, it may be tempted to leave its present discretion-free sentencing rules in place and respond to Booker by simply tacking on a series of general statements regarding the application of the other [section] 3553(a) factors. That would be a band-aid solution to a problem that requires surgery. It would make far more sense to build guidance regarding the exercise of discretion into the consideration of each factor that may be relevant to sentencing (such as quantity, role in the offense, amount and nature of harm, personal characteristics, etc.). There was a good argument even before Booker that the Commission was not statutorily bound to write discretion-free sentencing instructions. (10) This argument takes on greater weight now that the Guidelines are no longer binding, and sentencing judges are required to impose a sentence that best meets all the purposes set forth in [section] 3553(a). (11)
II. RESPONDING TO BOOKER: WHAT CONGRESS CAN DO
In our judgment, however, it is not enough for the Sentencing Commission to reconsider how best to implement the post-Booker Sentencing Reform Act; Congress must step up to the plate and enact legislative reform. As noted above, in the wake of Booker, the statute as it now stands lacks coherence. Moreover, there are fundamental weaknesses in the structure of the present Sentencing Commission, which have been exacerbated by Booker. Finally, the current Commission bears the taint of longstanding and widespread disrespect for its own Guidelines. (12) This lack of respect is especially evident in Congress itself, which increasingly has rejected a role for the Sentencing Commission in formulating federal sentencing policy. Now is the time for Congress to reenvision its relationship both to any independent sentencing agency it establishes and to the sentencing decision itself.
A. Structural Deficiencies of the Sentencing Commission
Congress decided to establish "an independent commission in the judicial branch" (13) because it understood that sentencing policy should be largely insulated from immediate political pressures and rewards. (14) Yet, as finally enacted in 1984, the Sentencing Reform Act provided for appointment of commissioners by the President and confirmation by the Senate, did not require that a majority of commissioners be judges, and included many specific instructions to the Commission regarding the content of the rules it would issue. (15) While the designation of the Commission as being "in …