When the Supreme Court mandated in Booker v. United States (1) that the federal courts of appeals review all criminal sentences for reasonableness in 2005, it opened the way for significant expansion of the appellate role in sentencing. Before Booker, the federal courts of appeals played only a very minor role in sentencing. Defendants did not have a right to appeal their sentences until 1889, and when they were finally granted that right, the federal courts of appeals chose to conduct only a very deferential review, primarily limited to review for some type of legal error. (2) The federal courts of appeals continued to play a more limited role in the sentencing process after the Sentencing Reform Act of 1984 and the development of the Federal Sentencing Guidelines (the "Guidelines," "federal Guidelines," or "Sentencing Guidelines"). (3) Their role was primarily an enforcement one, concentrated on ensuring that sentencing courts did not stray far from the strictures of the Guidelines. (4) The federal courts of appeals deferred to the sentencing judgments of both the district courts and the United States Sentencing Commission (the "Sentencing Commission"), the institution tasked by Congress with developing the Sentencing Guidelines on almost all issues of sentencing law and principles.
Even after Booker, when the Supreme Court made the Guidelines advisory and mandated a broad substantive reasonableness review of sentences, the federal courts of appeals have largely rejected the unprecedented opportunity to take a more active role in the sentencing process. They have interpreted Booker's reasonableness review narrowly, upholding sentences so long as district courts consider the purposes of sentencing set out in 18 U.S.C. [section] 3553(a)--just punishment, deterrence, protection of the public, and rehabilitation--when making their sentencing decisions. Courts of appeals usually will not question the relative weights the sentencing courts place on those purposes, despite the fact that the weight a court attributes to a particular sentencing purpose (say rehabilitation versus protection of the public) often invokes vital questions of sentencing law and policy touching a broader class of cases throughout the criminal justice system.
One of the more prominent examples of this deferential enforcement approach to appellate review is the Supreme Court's decision in Kimbrough v. United States, (5) in which the Supreme Court held that district courts could decide whether to reject the old 100-to-one crack-to-powder ratio in the Sentencing Guidelines. (6) After Kimbrough, it is entirely up to the judgment of individual district judges whether to treat crack-cocaine offenses more harshly than powder-cocaine offenses. (7) Such an approach to sentencing design, which leaves fundamental decisions of sentencing policy to the individual judgment of each district judge, can have troubling consequences, including unwarranted sentencing disparity, lack of transparency in sentencing, overreliance on the guidelines to justify sentences, and uncertainty for defendants facing sentencing. (8) This heavy deference to trial courts creates more than just an inconsistency problem. It is more deeply problematic that the resulting disparity is of such broad issues of policy that we would in other contexts normally consider them to be issues of law.
One possible way to fix this problem and promote uniform application of sentencing law would be to expand appellate review to further a common law of sentencing independent of the Sentencing Guidelines. To do so would expand the lawmaking function of the federal courts of appeals, but would leave untouched their enforcement function related to the Guidelines. (9) This expansion of the appellate lawmaking function is uniquely desirable in the post-Booker sentencing regime because the advisory nature of the Sentencing Guidelines has undermined their intended function: to further sentencing consistency. …