What Booker and Fanfan are about (and not about)

A quick read of the briefs submitted in Booker and Fanfan yesterday, especially the amicus briefs, could give one the impression that the Supreme Court’s job in these cases is to decide the broad policy question of whether guideline sentencing reforms are a good idea. The “Senators brief” especially reads in this vein, and the way that brief frames the question presented is almost comical:

Whether, or to what extent, the Court should give effect to the intent of Congress in enacting the Sentencing Reform Act of 1984 to eliminate the intolerable disparities that had plagued the federal sentencing system by creating an integrated and cohesive sentencing guidelines system.

In my view, it is inaccurate and quite dangerous to understand or frame the issues in Booker and Fanfan in this way; there is absolutely no way, no matter what the Supreme Court says, that the decision in these cases will formally or even functionally destroy the possibility of any guideline sentencing reforms.

Indeed, this is why I think it is very significant that states have not filed any amicus briefs in support of petitioners. States apparently recognize, correctly in my view, the truth in Justice Scalia’s statement in Blakely that this line of cases “is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment.” Kansas retained its guideline system even after its state Supreme Court gave Apprendi a broad reading, and I think the states all realize that they can continue modern sentencing reform efforts even if defendants are given broad procedural rights at sentencing.

Booker and Fanfan are not about the theory or soundness of guideline reforms in general. The cases are both formally and functionally about what rights defendants have under the Sixth Amendment (and the Due Process Clause). Obviously, the definition of these rights will necessarily impact how jurisdictions can implement guideline reforms, and also profoundly impact whether the federal sentencing system can continue to operate in its current form. But it is in my view misguided and harmful to even suggest that the Supreme Court inthese cases is in the role of a super-legislature with the task of deciding whether the general policies motivating sentencing reform are justifiable.

If observers (and legal realists) feel it is appropriate to frame Booker and Fanfan as cases about sentencing policy rather than as cases about constitutional doctrine, I think the dialogue should move down one level of abstraction. Rather than defended the broad value of guideline sentencing reforms in general, I would like to hear a defense of the current federal sentencing system in operation. Ironically, given all the strong evidence that the exercise of prosecutorial discretion and other forces has produced great disparities in the operation of the federal guidelines (see, e.g., this report from the USSC on disparities in substantial assistance departures), a good case could be made that striking down the federal system in Booker and Fanfan would “give effect to the intent of Congress in enacting the Sentencing Reform Act of 1984 to eliminate … intolerable disparities.”