“Post-Chevron, Good Riddance To The Sentencing Guidelines”
The ttile of this post is the title of this notable new Law360 commentary authored by Mark Allenbaugh, Doug Passon and Alan Ellis. The extended piece covers a lot of ground at the intersection of administrative law and the guidelines, and here is a snippet from its first section:
The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, overturning the Chevron doctrine, raises a critical and long overlooked question: What, if any, deference is now owed to the guidelines themselves?
Over the past few years, significant splits have developed among many federal district courts and appeals courts with respect to the deference courts should afford both to the guidelines proper, and to their commentary.
Loper Bright is certain to add to the disarray. Accordingly, it is imperative that the court step in quickly to resolve this building crisis.
We argue that, in their current form, the guidelines should not be afforded any deference for two primary reasons. First, although the guidelines were originally designed to be binding, their binding nature has since been ruled unconstitutional. Yet the commission has not revised the guidelines to account for their now-advisory nature.
Second, in their current form, they actually promote the exact opposite of the various policy goals they were intended to achieve — namely, to provide certainty, proportionality and uniformity in sentencing, while taking into account the population capacity of the Federal Bureau of Prisons.
Prior related post: