In United States v. Booker, the Supreme Court excised two provisions of the Sentencing Reform Act of 1984 (SRA) that had made the Sentencing Guidelines binding on sentencing judges: 18 U.S.C. § 3553(b), the provision that had confined departures to specified, limited circumstances, and 18 U.S.C. § 3742(e), the standard of review under which courts of appeals had enforced those limitations. The Court made the law of sentencing the purposes and factors set forth in 18 U.S.C. § 3553(a), and the standard of review for all sentences, inside or outside the guideline range, the “reasonableness” of the sentencing judge’s application of that law.
The mandatory guidelines system Booker replaced was badly out of balance in ways never contemplated by the framers of the SRA or the Supreme Court when it upheld the U.S. Sentencing Commission against separation-of-powers challenges. Yet Booker was initially met with resistance by the Commission and the Department of Justice, and many lower courts continued to treat the guidelines as “virtually mandatory.” In subsequent decisions, the Supreme Court firmly insisted that the guidelines are—and must be—advisory only. The result has been a gradual but marked improvement in the quality, transparency, and rationality of federal sentencing, in both the sentencing of individual defendants and the Commission’s rulemaking. The advisory guidelines system has broad support: the vast majority of federal judges believe that advisory guidelines achieve the purposes of sentencing better than any kind of mandatory guidelines system or no guidelines at all, the Criminal Law Committee of the Judicial Conference of the United States supports the advisory guidelines system, prosecutors prefer advisory guidelines to other available options, and the organized public and private defense bars support the advisory guidelines system.
Nevertheless, a former Chair of the Sentencing Commission and the current Commission itself have each proposed that Congress enact a Booker “fix.” Former Commission Chair Judge William K. Sessions III proposes “the resurrection of presumptive (formerly called ‘mandatory’) guidelines,” with enhancing facts to be charged in an indictment and proved to a jury beyond a reasonable doubt or admitted by the defendant. The Commission proposes codification of a variety of devices designed to give its guidelines, as well as its restrictions on non-guideline sentences, increased weight at sentencing, and to more strictly enforce the guidelines on appeal. These proposals—seeking to fix a system that, far from being broken, is actually working properly for the first time—are unwise, unworkable, and likely unconstitutional.