Both judges and members of Congress should react cautiously to the new sentencing landscape after Booker.
Supreme Court decisions in 2002 and 2004 raised questions about the use of judge-determined facts injury trials to increase the length of sentences under the federal sentencing guidelines. In United States v. Booker, decided in January of this year, the Court ruled by a 5-4 vote that this use of facts was indeed a violation of the right to jury trial in the Sixth Amendment. The Court's remedy, adopted by a different 5-4 majority, was to make the sentencing guidelines advisory rather than mandatory.
There has been considerable uncertainty about the effect of the Booker decision on district judges' sentencing practices. In part, this uncertainty reflects the paradoxical character of the Court's remedy: to address an aspect of the sentencing guidelines that gave judges too much discretion, the Court increased judges' overall discretion to set sentences. But most experts have concluded that sentencing practices are unlikely to change substantially. Although the Court established more deferential standards for review of sentences by the courts of appeals, defendants and prosecutors can still appeal from sentences outside the guidelines. Moreover, under provisions of the "Feeney Amendment" enacted by Congress in 2003, judges must provide written justification for such sentences, and information about sentences below the minimums in the guidelines is collected and available to Congress. For these reasons, among others, we can expect that judges generally will follow the practices they had already established under the guidelines.
We think this would be a desirable result. The operation of the sentencing guidelines has been criticized a great deal, and many of the strongest critics are district judges themselves. But the perceived defects of the guidelines should not obscure the problems that led to their establishment two decades ago. When judges are given wide discretion in sentencing, there is a danger that this discretion will be used in undesirable ways. The result can be arbitrariness, discrimination, or both. It can be argued that the guidelines cure was worse than the disease, but Congress chose the cure and has maintained the basic structure of the guidelines. Under those circumstances, it is best for judges to continue giving heavy weight to the guidelines in their sentencing decisions.
Justice Breyer's opinion for the Court on the remedy in Booker invited Congress to adopt a new sentencing system within the constraints of the Constitution: "The ball now lies in Congress' court." Since the sentencing guidelines were put in place, Congress has acted on sentencing issues with some frequency. …