Academic journal article Texas Journal on Civil Liberties & Civil Rights

Why March to A Uniform Beat? Adding Honesty and Proportionality to the Tune of Federal Sentencing

Academic journal article Texas Journal on Civil Liberties & Civil Rights

Why March to A Uniform Beat? Adding Honesty and Proportionality to the Tune of Federal Sentencing

Article excerpt


This Article fills a gap in current scholarship concerning the Federal Sentencing Guidelines ("Guidelines") by bringing together many sentencing concerns and refocusing them on the Guidelines themselves. Since United States v. Booker,1 in which the Supreme Court demoted the Guidelines from mandatory to advisory status and imposed reasonableness as the appellate standard of review, several scholars have written about the new, advisory Guidelines scheme. Some have focused on the constitutional problems that Booker failed to settle.2 Others have argued against a presumption of reasonableness for within-Guidelines sentences.3 For some scholars, the biggest issues with the advisory Guidelines regime are the lack of any guiding punishment policy for sentencing courts, and the lack of emphasis on district courts' reasons for imposing a sentence.4 While this Article draws on some of the ideas presented in prior scholarship, its main objective is to bring all of these concerns together by focusing on problems within the Guidelines, advisory or not.

Rather than focusing exclusively on how appellate courts should review sentences, or how district courts should impose sentences, this Article focuses on why courts on every level should be skeptical of the Guidelines and should, therefore, give less credence to them as providing proper sentencing "guidance." Some of these arguments were made when the Guidelines were first developed. Now, though, over twenty years later, there is data to back up these early concerns. For the purposes of this Article, the term "bias" means any factor outside of the sentencing statute that influences a judge's decision-making and leads to disparate sentencing. This can include characteristics of the defendant (such as race, age, gender, and socioeconomic status) or characteristics of the sentencing judge (such as political ideology, mood, and sentencing philosophy). As this Article will discuss, the Guidelines are imbedded with biases that encourage - or at least do not adequately diminish - disparities and hide judges' reasons for imposing sentences.

The Supreme Court emphasizes uniformity as its reason for continuing to instruct district courts to begin their sentencing determination with a Guidelines calculation. Uniformity means that punishment is based on an offender's real conduct and that similar offenders who have committed similar conduct receive the same punishment.5 However, as this Article demonstrates, the Supreme Court's singular focus on uniformity is neither based on statutory construction nor on Congress's own articulated sentencing policy, which includes honesty and proportionality as well.6 Honesty refers to "avoiding the confusion and implicit deception that arose out of the [indeterminate] pre-guidelines sentencing system."7 While a portion of the honesty goal was achieved with the abolition of federal parole, honesty also referred to being transparent about the sources and reasons dictating the sentences imposed.8 Although honesty and proportionality can inform uniformity, each sentencing goal requires different considerations. The Supreme Court's approach obstructs any meaningful progress toward accomplishing the uniformity, honesty, and proportionality in sentencing that Congress charged the Sentencing Commission to achieve.

Part II of this Article gives a brief history of federal sentencing discretion. It moves through the pre-Guidelines era, to the mandatory Guidelines years, to the current advisory Guidelines period. In doing so, Part II reveals the longstanding concern with individualized sentencing as a basis for justice and fairness and the tension between that concern and the threat of judicial bias plaguing discretionary sentencing.

Part III focuses on the development of the Guidelines themselves by explaining the early criticism of the Guidelines and the concerns that continue to this day. The purpose of Part III is to reveal the imprudence of relying on the Guidelines as a sound resource based in studied sentencing policy. …

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