Advice for the Justices on Gall

Greg Poe and Brian Willen have this short article on Gall in the current issues of Legal Times. The piece is entitled “Tailored To the Crime: Sentencing case shows need to defend judicial discretion,” and it concludes with this sound tripartite advice to the Justices:

First, there should be no thumb on the scale in favor of a guideline sentence.  Although the judge must consider the advisory guideline range, that range is not to be treated as a tether.  Congress has set out a variety of factors to guide courts in sentencing.  Judges must assess those factors and articulate how any particular sentence would advance the legislative goals.

Second, the sentence ultimately imposed, whether inside or outside of the guideline range, should be entitled to substantial deference on appeal as long as the district court follows correct procedures and articulates substantial reasons for the sentence. Such deference recognizes a trial judge’s superior ability to assess the facts and circumstances of each case.  But deference is not abdication, and appellate review would allow true outlier sentences to be corrected.

Third, judges must respect the statutory command to impose a sentence “sufficient, but not greater than necessary” to achieve specified purposes of punishment. This “parsimony principle,” which traces back to Montesquieu, has been a central maxim in American criminology since the framing of the Constitution.