Introducing the "Heartland Departure"
Lamparello, Adam, Harvard Journal of Law & Public Policy
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. …