A Second Chance for Sentencing Reform: Establishing a Sentencing Agency in the Judicial Branch

By Stith, Kate; Dunn, Karen | Stanford Law Review, October 2005 | Go to article overview

A Second Chance for Sentencing Reform: Establishing a Sentencing Agency in the Judicial Branch


Stith, Kate, Dunn, Karen, Stanford Law Review


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

INTRODUCTION

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. …

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