The Reason Behind the Rules: Finding and Using the Philosophy of the Federal Sentencing Guidelines.

Article excerpt

  I. INTRODUCTION
     A. Finding and Using the Federal Philosophy of Sentencing
     B. How the Guidelines' Philosophy Got Lost
        1. The Critics Speak
        2. The Root of the Problem
        3. The Original Commission's Compromises and
           Accommodations
 II. THE PROJECT OF RATIONAL RECONSTRUCTION
     A. The Consequences of Philosophy-Free Guidelines
        1. The Empty Idea of Disparity
        2. Missing Criteria for Evaluation
        3. Weakened Rational Decision-making
        4. Missing Tools for Legal Reasoning
     B. The Method of Rational Reconstruction
     C. Sources of the Guidelines' Philosophy
        1. The SRA and Mistretta
        2. The Guidelines and Commentary
        3. General Justifying Aims Versus Specific Reasons
        4. United States v. Koon: "The Structure and Theory of the
           Guidelines as a Whole"
III. IDENTIFYING THE GUIDELINES' SENTENCING PHILOSOPHY
     A. Modified Just Desert
     B. Rehabilitation
     C. Incapacitation
     D. Deterrence
     E. Just Desert
        1. The Components of Offense Seriousness
        2. Harm is Central
        3. Culpability Is Considered
     F. The Best Account of the Rules as a Whole
 IV. WHAT IS A PHILOSOPHY GOOD FOR?
     A. Guideline Criticism
        1. Culpability Receives Relatively Little Weight
        2. The Drug Trafficking Guideline's Internal Incoherence
        3. Congressional Directives and Incoherence
     B. Guideline Interpretation and Application
     C. Guideline Departure
        1. What Kind of Rules?
        2. What Kind of "Heartland"?
        3. Reducing True Disparity Through Departure
  V. CONCLUSION

I. INTRODUCTION

A. Finding and Using the Federal Philosophy of Sentencing

The Sentencing Reform Act of 1984 was intended to eliminate unwarranted sentencing disparity by establishing a "comprehensive and consistent statement of the Federal law of sentencing, setting forth the purposes to be served." (1) As described in the exhaustive legislative history that accompanied the Act (2) (the SRA), Congress believed that "[f]or the first time, Federal law will assure that the Federal criminal justice system will adhere to a consistent sentencing philosophy. Further, each participant in the system will know what purpose is to be achieved by the sentence in each particular case." (3) Despite this seemingly clear mandate, a common complaint about the primary product of the SRA, the federal sentencing guidelines (the Guidelines), is that it fails to express a coherent philosophy of punishment. The United States Sentencing Commission was created to develop the Guidelines, (4) and was given the job of establishing sentencing priorities and deciding how the tensions among the four purposes of punishment listed in the federal statutes should be resolved. (5) But members of the Commission could not agree on which purposes were most important. In the end, they explicitly declined to articulate a philosophy of sentencing that could explain the Guidelines' priorities and which purpose of sentencing should control in cases where the purposes conflict. (6)

Given the Commission's silence regarding purposes, judges applying the Guidelines are given only a few unsatisfactory options. If the relevant guidelines are unambiguous, judges can apply the rules mechanically, even if it is unclear what purpose, if any, justifies the sentence. (7) Obviously, this is an uncomfortable form of judging, from which many have rebelled, particularly when the sentence required by the Guidelines conflicts with the judge's own sense of justice. (8)

Mechanical application of the Guidelines also neglects a crucial component of the Guideline system: the judge's departure power. The SRA provides for departure from the recommended Guideline range if the judge finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the [G]uidelines that should result in a sentence different from that described. …