Debunking some myths about the quest for sentencing uniformity
As I read the Rita and Claiborne oral argument transcripts, I am aggravated by the persistent assumptions that (1) Congress is exclusively concerned with sentencing uniformity, and (2) a guideline-centric sentencing system with judicial fact-finding is essential to achieving sentencing uniformity. These assumptions reflect a superficial understanding of the Sentencing Reform Act of 1984, subsequent sentencing legislation passed by Congress, and the federal guidelines in operation. Let me explain.
The text of the SRA and its legislative history show that Congress in 1984 was interested not only in greater sentencing consistency, but also in creating a more principled, reasoned and transparent federal sentencing system. As the crack sentencing debate spotlights, slavish adherence to certain guidelines can often produce an unprincipled form of uniformity. That why the US Sentencing Commission has repeatedly said the crack guidelines undermine the goals of the SRA.
Further, in a major report in 1991, the USSC explained to Congress that mandatory minimums in operation produce unwarranted disparity. Nevertheless, Congress has continued to embrace mandatory minimum statutes that undermine the sensible pursuit of sentencing uniformity. In addition, Congress has rarely sought to regulate prosecutorial discretion even though the USSC has long detailed the myriad ways prosecutorial discretion can produce unwarranted disparities. In fact, the 2003 PROTECT Act broadly expanded prosecutorial discretion in various ways, including formally embracing different prosecutorial fast-track policies throughout the country. Obviously, Congress has many sentencing goals beyond just achieving sentencing uniformity.
Relatedly, after Booker, Congress could have readily returned the guidelines to their mandatory status simply by declaring that guideline fact-finding should conform to Sixth Amendment. (This is how the majority of states responded to Blakely.) But we have now had advisory guidelines in place for more than two years, and Congress has not seriously considered any legislative fix to make the guidelines mandatory again. This shows, yet again, that Congress has many sentencing goals beyond just achieving sentencing uniformity.
As I explain in much of my scholarship, I am a strong believer in sentencing guidelines because they can and should enhance more consistent, principled, reasoned and transparent sentencing practices. Unfortunately, the federal sentencing guidelines often champion superficial notions of uniformity over other equally important sentencing goals (even though the SRA as reflected in text of 3553(a) & (c) and other provisions rightfully stress other critical goals). I am hopeful that the decisions in Rita and Claiborne will be sensitive to these realities to help ensure that the federal system still aspires to achieve principled, reasoned and transparent federal sentencing justice.