Introducing the "Heartland Departure"

Article excerpt

I.   FEDERAL SENTENCING PRIOR TO THE FEDERAL
     SENTENCING GUIDELINES
II.  THE CREATION AND IMPLEMENTATION OF THE
     FEDERAL SENTENCING GUIDELINES
A.   A Brief Overview of the Federal Sentencing
     Guidelines
B.   The Guidelines" "Heartland"--Simply the
     Mathematical Averaging of Purposeless,
     Unprincipled Pre-Guidelines Jurisprudence
C.   The Commission's Restrictions on Judicial
     Departures--Insurance Against the Creation
     of a Purposeful Heartland
III. THE FEDERAL JUDICIARY'S RESPONSE TO AN
     UNPRINCIPLED HEARTLAND AND OVERLY
     RESTRICTIVE DEPARTURE PARADIGM
A.   "Hidden Departures": Driving the Sentencing
     Discourse Underground
B.   "Overt Departures": Creating Substantive
     Disparities in Atypical Cases
IV.  INTRODUCING THE "HEARTLAND
     DEPARTURE".
A.   Reviewing the Problem--Competing Objectives in
     Sentencing Policy
B.   An Overview of the Proposed Solution--The
     "Heartland Departure "
C.   The "Heartland Departure" Will Enable
     the Evolution of a Principled Heartland
     Through Lawmaking by Trial and Appellate
     Courts as Well as the Sentencing Commission
     1. Trial Court Lawmaking
     2. Appellate Court Lawmaking
     3. Commission Lawmaking
D.   Suggested Policy Statements Regarding the
     "Heartland Departure".
E.   Possible Implementation of the "Heartland
     Departure" in Light of the Hatch-Sensenbrenner
     Amendment to the PROTECT Act
F.   Lessons from the Minnesota Sentencing
     Guidelines Regarding the Development of a
     Purposeful, Principled Sentencing
     Jurisprudence
V.   CONCLUSION

Under the Federal Sentencing Guidelines (the "Guidelines"), sentencing decisions have often been comprised of "more complication of detail than richness of concept." (1) This Article proposes one means--the "heartland departure"--by which federal sentencing procedure may be able to gain the conceptual depth and purpose it currently lacks.

Prior to the advent of the Guidelines, sentencing decisions were primarily the product of unfettered judicial discretion; no rules, principles, precedent, or purposes guided or controlled district court judges in their determination of particular sentences to impose. The exercise of this discretion resulted in unjustifiable disparities in sentencing among similarly-situated defendants. As such, pre-Guidelines jurisprudence could be characterized as "lawless" in that sentences were primarily the product of individual judges' subjective predilections. Furthermore, in the absence of meaningful appellate review of such sentencing determinations, district court judges rarely, if ever, wrote reasoned sentencing decisions justifying the imposition of a given sentence in light of the purposes of criminal punishment. As such, the system was also purposeless, lacking the essential foundations for a doctrinally-rich common law of sentencing.

While the Guidelines were designed to remedy these problems by reducing judicial discretion and creating a detailed grid of sentencing norms, their method of adoption ensured that federal sentencing practice would remain purposeless. In short, the Sentencing Commission created a grid of possible sentencing ranges and specified the conditions under which a defendant could fall within each category, based on offense and offender characteristics deemed apposite to pre-Guidelines sentencing determinations. The grid, comprised of nothing more than the mathematical average of sentences imposed by judges for particular offenses in pre-Guidelines jurisprudence, formed a "heartland" to govern all typical cases (i.e., cases that presented sentencing factors already considered by the Commission when adopting a given sentencing range). The "heartland" was not the product of substantive discussions in which the principles, purposes, and justifications of criminal punishment formed the basis for adoption of a particular sentencing norm for a particular offense. …