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Debate Club
DEBATE CLUB 1/16/06

What's the Future of Federal Sentencing?

Douglas Berman and Frank O. Bowman III debate.

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In 1987, Congress adopted the Federal Sentencing Guidelines to make sentencing more uniform. The guidelines set out a range of possible punishments for each crime and allowed judges to choose the appropriate level of severity based on the facts of the case.

But in June 2004, the Supreme Court found the guidelines of Washington State unconstitutional and, six months later, struck down the Federal Sentencing Guidelines. In a complex opinion, Justice Stephen Breyer instructed trial judges to consider the guidelines advisory but not binding.

A year has passed since the second decision and many questions remain unanswered. What is the future of sentencing?


Douglas Berman is William B. Saxbe Designated Professor of Law at Moritz College of Law at The Ohio State University and author of the blog Sentencing Law and Policy. Frank O. Bowman III is Floyd R. Gibson Missouri Endowed Professor of Law at University of Missouri at Columbia School of Law.

Berman: 1/16/06, 09:43 AM
Given the enormous and unexpected shocks to the federal sentencing system over the past three years—Congress' enactment of the PROTECT Act, then the Supreme Court's decision in Blakely v. Washington, and finally the Supreme Court's decision in United States v. Booker—I am wary about making any predictions about what will be the future of federal sentencing. But I am happy to opine about what should be the future of federal sentencing: Congress should allow the advisory guideline system created by the Booker decision to continue to operate while the U.S. Sentencing Commission and others assess its efficacy and fairness.

If writing on a blank slate, few would likely advocate the precise sentencing system resulting from Booker. Nevertheless, an advisory guideline system, monitored through appellate review for reasonableness, is not obviously inferior to other possible sentencing structures for the huge and complex federal criminal justice system. And this sentencing system is obviously superior to some of the misguided "Booker fix" proposals that have been put forth since Blakely identified a constitutional flaw in the operation of the Federal Sentencing Guidelines as mandatory sentencing rules.

Congress spent more than a decade debating how best to reform the federal sentencing system before passing the Sentencing Reform Act in 1984 (SRA), which in turn led to the creation of the Federal Sentencing Guidelines. Even after Booker, the structural reforms and central provisions of the SRA still define the federal sentencing system, and the Federal Sentencing Guidelines are still having a profound impact on sentencing outcomes. Moreover, there are good reasons to believe that the fundamental goals of the SRA are actually now being better served than they were before Booker transformed the Guidelines from mandates to advice.

Consequently, Congress should steadfastly resist any proposed quick fixes for the federal sentencing system. Congress should give the U.S. Sentencing Commission and other interested groups ample time to conduct in-depth analyses and assessments of post-Booker sentencing realities. And, utilizing the same cautious and deliberative process that led to the SRA's passage, Congress should conduct a series of hearings in order to carefully investigate whether, when and how it should develop new sentencing legislation in response toBooker.

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Bowman: 1/17/06, 09:01 AM
It is perilous, and perhaps foolhardy, to duel in the blogosphere with my good friend Doug Berman, who, due to his mastery of the form, has become the closest thing to a rock star that the criminal law academy has seen since the salad days of Alan Dershowitz. The job is made doubly difficult since Doug's views are so sensible and well-informed and because he and I are in general agreement about most things. Nonetheless, in the interest of stimulating some discussion, let me play the devil's advocate a bit.

Doug's basic premise is that neither Congress nor the Sentencing Commission should rush precipitously into adopting a major revision of or replacement for the "effectively advisory" federal guidelines system that the Booker Supreme Court invented last January by judicially amending the Sentencing Reform Act of 1984. This sensible advice seems to be based on three express or implied arguments: First, we don't really yet know how the post-Booker system is working. Second, the post-Booker system may be serving the goals of the Sentencing Reform Act better than the pre-Booker mandatory guidelines. Third, a major revision of the federal sentencing system is a complex project with far-reaching consequences that should be undertaken only after careful study, deep reflection, and wide consultation. The third point is so self-evidently right that I will say only, "Amen." The first two, however, seem open to question. In this post, I will address only the question of what we know, leaving the question of how well the post-Booker system is working for the next round.

A year has passed since the Booker decision. The Sentencing Commission has been gathering and promulgating data about post-Booker practice on a nearly monthly basis since April 2005. In consequence, we have a very good idea about how the post-Booker system has worked so far:

1. The Federal Sentencing Guidelines survived Booker. They are advisory, but remain a legally relevant, and in some jurisdictions dominant, factor in determining federal sentences.

2. Nonetheless, since Booker, the rate of compliance with the Guidelines, by which I mean the percentage of cases sentenced within the guideline range calculated by the sentencing judge, has declined by about 11% nationally—from about 72% to about 61%.

3. Virtually the entire country has experienced a decline in compliance with the guidelines. The compliance rate of every circuit has fallen, and compliance fell in more than 90% of all districts.

4. On the other hand, the extent of the decline in guidelines compliance has been regionally irregular. For example, the rate dropped by 5.5% in the D.C. Circuit and 15.6% in the First Circuit.

5. Data and analysis regarding the effect of Booker on regional sentencing disparities (i.e., the extent to which similarly situated defendants may receive different sentences based on where their cases are brought) are so far incomplete, but eyeballing the district-by-district statistics suggests that disparity has not improved and may well have gotten worse since Booker.

6. Interestingly, the average length of a federal sentence in 2005 stayed the same as it was in 2004. On the other hand, the trend in sentence length (and guidelines compliance) from 2001-2004 was sharply up, the apparent result of conscious efforts by both Congress and the central administration of DOJ to increase guidelines adherence and criminal penalties. In short, the average federal sentence length post-Booker seems to reflect not maintenance of the status quo, but the sudden arrest of what had been a powerful and continuing upward surge.

7. Both before and after Booker, prosecutors and judges have shared responsibility for the proportion of federal sentences imposed outside the guidelines range. On the one hand, both before and after Booker, the fraction of non-guidelines sentences ("departures" or "variances"—call them what you will) granted by judges at the request of the government has always exceeded the fraction awarded by judges alone without government request or sanction. For example, in 2004, 27.9% of all federal cases were sentenced outside the guideline range. Of these, 21.9% were requested by the government and only 5.2% were granted by judges on their own authority without government request.

8. On the other hand, the decrease in guidelines compliance after Booker is almost entirely due to judicial action. Judges are using their new authority to reduce sentences below the range in almost 10% of all cases, and it is their exercise of this authority that is driving the decline in overall compliance rate.

I'll make no comment now on these facts, other than to suggest that the argument for delay in response to Booker cannot much longer be premised on the claim that we don't know how the new system will work. In fact, we have a very good idea of how it's working. (For what it's worth, my detailed analysis of the post-Booker data will be appearing shortly in the Houston Law Review symposium issue titled, "The Booker Project.") While some more time should perhaps be permitted for data collection and analysis, the focus of the discussion should soon move beyond how the post-Booker system is working to the more difficult and contentious questions of whether we like what we see, and if not, how we should fix it.

Berman: 1/17/06, 03:14 PM
Thanks first for the compliments, Frank. I think I am flattered to be compared to a rock star and to Alan Dershowitz, all in your first sentence. Your entry shows, of course, that you are more than up to the challenge of this "duel." (This comes as no surprise, since you are the Amadeo Avogadro of sentencing chemistry: Your insights have led your name to be associated with a leading proposal to fix the guidelines in the wake of the Supreme Court's decisions in Blakely and Booker. And even though you advocated the "Bowman fix" as only a temporary solution after Blakely, it seems that Attorney General Alberto Gonzales and the Justice Department has embraced your proposal when advocating a "minimum guideline system" in response to Booker.)

I will begin by noting that we do not yet know how appellate review for reasonableness, another remarkable creation of the remarkable Booker opinion, is working. Even a full year after Booker, the circuit courts are only starting to give shape to this amorphous concept, and the U.S. Sentencing Commission has not yet released any data about the frequency and resolution of appeals. Nevertheless, I agree that we know enough now about district court sentencing practices to begin a serious discussing possible post-Booker reforms, and your eight-point review of the state of federal sentencing provides a terrific account of key facets of the post-Booker universe.

As we launch into a reform discussion, it is critical that we not lose sight of two fundamental reasons why pre-Booker realities cannot nor should not be our gold standard for assessing the current state of federal sentencing: (1) the pre-Booker sentencing system, according to the Supreme Court, violated defendants' Sixth Amendment rights, and (2) the pre-Booker sentencing system, according to nearly all observers, distinguished itself by virtue of its overall complexity, rigidity and harshness. Consequently, because the pre-Booker sentencing system was both unconstitutional and unsound, evidence of "decreased compliance" with the guidelines perhaps should be a cause for celebration and not concern.

Indeed, I have been disappointed to discover that a culture of guideline compliance is so entrenched in the federal sentencing system. Thanks to the way that Justice Breyer's remedial handiwork has been interpreted and applied by lower courts, we have a federal sentencing process that still remains exceedingly focused on the minutiae of guideline calculations and that still gives only limited attention to the broader sentencing goals Congress incorporated into the Sentencing Reform Act. Moreover, despite the fact that Blakely and Booker spotlight the constitutional importance of sentencing procedures, federal judges continue to increase sentences based on extra-verdict judicial fact-finding that relies on, in Justice Scalia's words, "bureaucratically-prepared, hearsay-riddled presentence reports." Thus, when I look over the post-Booker landscape, I am actually most concerned by how little change we've seen in judicial sentencing practices.

Integral to my concern is the view that "guideline compliance" is a bad proxy for sound sentencing decision-making. Because no set of guidelines could possibly capture all relevant considerations for imposing a fair and effective sentence in every case, a very high "compliance rate" would not be ideal even the guidelines were perfectly constructed. And, as the U.S. Sentencing Commission itself has highlighted in its recent 15-year report, many key federal guideline provisions are far from perfect.

Interestingly, post-Booker data highlight that federal prosecutors clearly appreciate these points: even after Booker, prosecutors are still recommending a reduced sentence below the guideline range in nearly 1 out of every 4 cases. This reality provides important perspective on the data you note showing that judges are using their new post-Booker authority to reduce sentences below the range in less than 1 out of every 10 cases. If Congress really believes that the overall guideline compliance rate is of fundamental importance, it should call in Justice Department officials to account for their practices before worrying too much about how sentencing judges are using their new discretion after Booker.

Coming full circle, I stressed appellate review above because it further informs my belief that any federal policy-maker genuinely concerned about sentencing disparities ought to focus on the exercise of prosecutorial discretion before worrying about judicial discretion. Even after Booker, district judges have to provide a reasoned explanation for the exercise of their discretion, and each sentencing decision is subject to appellate review. Prosecutors never have to explain their exercise of discretion, nor are their decisions subject to serious review.

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Bowman: 1/19/06, 08:50 AM
Amadeo Avogadro???! If I didn't know better, Doug, I'd think you were trying to do a number on me. But enough persiflage.

Let me start with a few thoughts on how appellate "reasonableness review" of district court sentencing decisions is working now and seems to be developing. First, you are certainly right that a good deal of uncertainty exists about what "reasonableness review" of district court sentencing decisions by appellate courts is supposed to consist of. The courts are all over the lot. Some say that the guidelines calculation and resulting sentencing range should be given "heavy weight" or be entitled to presumptive validity. Others emphasize that that guidelines calculations are only one factor to be considered and need be given no more weight than other factors listed in those portions of Section 3553 left intact by the Supreme Court. Some say that the concept of a "departure" from the guidelines remains a valid concept; others disagree. Some say that a sentence within the applicable range is effectively unappealable; others disagree. Some say that a judge can justify a sentence outside the guideline range based on disagreement with the policy judgments of the Sentencing Commission embodied in the guidelines; others seem to disagree. These fundamental issues, and dozens of others raised by Booker's judicial surgery on the Sentencing Reform Act, will not be resolved for years.

As the Sixth Circuit recently noted (and you highlighted on your compendious and ever-useful blog), achieving agreement among the courts on what Booker means has "been like trying to herd bullfrogs into a wheelbarrow." However, the fact that, a year after Booker, the federal appellate courts are still so uncertain about how the Booker regime is supposed to work that they see themselves as bullfrog wranglers is not necessarily a great argument for letting the amphibian rodeo continue indefinitely. To the contrary, some might well conclude that a system in which so much is unsettled and is likely to remain so for years to come is a distraction from the core objectives of criminal justice at best, and is likely to prove a breeding ground for regional disparity and individual unfairness.

Which leads to a question about the peculiar affinity many devoted critics of the pre-Booker guidelines seem to have developed for the post-Booker guidelines. There is a substantial group of folks who, a year or so ago, were withering in their criticism of the pre-Booker guidelines and passionate in their cries for abolition of that assertedly awful system, but who are now arguing passionately that the post-Booker guidelines should be left unmolested. As you wrote in your exchange with Professor Bibas here on Debate Club back in 2004 between Blakely and Booker, "I am not confident that the extension of Blakely to the federal system will bring humanity back to federal sentencing, but I am confident that we should not be troubled by the demolition of a system that is flawed in so many ways." An affinity for the post-Booker system by strong critics of the pre-Booker one would make sense if the post-Booker system solved or at least significantly ameliorated the most common complaints about the pre-Booker system. But it really doesn't.

The standard complaints about the old guidelines were that they were too complex, placed unjustifiable restrictions on the discretionary authority of judges to make individualized sentencing decisions, gave too much power to prosecutors to control sentencing outcomes, and tended to generate sentences many felt to be unjustifiably harsh. The new system is, if anything, more complex because it retains every jot
and tittle of the old guidelines rules and fact-finding procedures, but adds the additional step of weighing the guidelines outcome against other factors. The new advisory scheme has increased judiciary discretionary authority in theory, but the additional authority is being exercised so far in less than ten percent of all cases. Presumably whatever increase in judicial discretion Booker has produced should generate a proportional decrease in prosecutorial power over sentencing outcomes, but it appears to me that because the system is virtually identical to the old, prosecutors retain virtually all of the means of influencing sentencing outcomes that they had before. And finally, if one's concern is sentencing severity, sentences in the year after Booker are exactly the same on average as in the year before.

What's going on here? Why has a new system so very close in design, operation, and outcomes to the old one so many loved to hate suddenly become the apple of so many eyes? The answer plainly lies in considerations of political pragmatism. Folks who hated the old guidelines see the new system as a marginal improvement. It may be more complicated, but it does give judges somewhat more wiggle room once the guideline calculation is made. It may preserve most mechanisms of prosecutorial influence, but it loosens the government's grip a little, gives a bit more leverage to defendants in plea negotiations, and a bit more leeway to counsel in arguing for non-guidelines sentences. It may not have dramatically cut sentence lengths across the board, but looks as though it has halted the trend to even higher sentences evident between 2001-2004. Most importantly, those who profess their love for Booker advisory guidelines are usually professing a devotion based not so much on admiration of what the Supreme Court wrought, as on fear of what they think an alliance of this Congress and this Justice Department might devise to replace it.

And remember, Doug, 6.0221367 x 10 23.

Berman: 1/19/06, 11:38 AM
Rather than persevere with persiflage, let me jump right in by first agreeing that "unsettled" sentencing realities can be a "distraction from the core objectives of criminal justice" and can provide "a breeding ground for regional disparity and individual unfairness." However, attacking Booker on this ground is a form of shooting the messenger. The fundamental reason sentencing law is now so unsettled—not just in the federal system, but also in the states—is because of the schizophrenic way the Supreme Court is developing its new Sixth Amendment jurisprudence.

The uncertainties you spotlight about Booker's application pale in comparison to the constitutional mysteries which still surround the Blakely ruling (and its 2000 predecessor Apprendi v. New Jersey). As you know, Justice Clarence Thomas recently urged the court to now reject the "prior conviction" exception to constitutional limits on judicial fact-finding at sentencing. Of course, Justice Thomas was the key fifth vote to create that exception in the first instance, and so now the exception lives on in legal limbo while critical questions about its validity and scope fester in the lower courts. Similarly, the Apprendi-Blakely rule's "mandatory minimum" exception has never been on solid ground: In the 2002 case reaffirming that exception, Justice Stephen Breyer provided the key fifth vote only after writing a separate opinion reserving the right to latter change his mind.

These continuing constitutional controversies reinforce my belief that Congress should resist any hasty Booker fixes. Because of all the jurisprudential uncertainty—which is only compounded by the recent Supreme Court transitions—it would be extraordinarily difficult for Congress to quickly construct a new federal sentencing system on certain and solid constitutional ground. (Indeed, the "minimum guideline system" proposed by the Justice Department would make a great exam question in an advanced Con Law class: One can spot a half-dozen reasons why the proposal is constitutionally suspect.) The manic interregnum between Blakely and Booker highlighted that uncertainty about a sentencing system's constitutionality produces the most problematic "distraction from the core objectives of criminal justice" and the most fertile "breeding ground for regional disparity and individual unfairness." It is hard to see how any hasty congressional response to Booker could make the federal sentencing system more settled, but it is easy to see how some of the proposed fixes could result in a new round of legal tumult.

Indeed, despite the inevitable and challenging kinks of transforming a mandatory sentencing system into an advisory one, the remedy engineered by Justice Breyer in Booker actually produced remarkable stability in the wake of the court's constitutional ruling. Justice Breyer's remedial opinion clearly sought to preserve the fundamental pre-Booker features of the federal sentencing system. And, as you have highlighted, Justice Breyer largely succeeded: The Booker decision does not appear to have radically transformed the federal sentencing system's basic practices or typical outcomes. That's why, as I explained in my prior post, I am most concerned by how little change we've seen after Booker. It is also why, given your recognition that the new system is "so very close in design, operation, and outcomes to the old one," Congress and others should be suspicious of the Justice Department's assertions that a legislative response is needed.

Finally, though I agree that pragmatism more than principle explains Booker's fans, I also think devotion to Booker is grounded in its potential. Booker requires district and appellate courts to focus on the provisions of section 3553(a), which means that judges now can and must give more sustained attention to the broader goals of sentencing reform that Congress incorporated into the Sentencing Reform Act. In addition, the transformation of the guidelines from mandates into advice provides the U.S. Sentencing Commission with a remarkable opportunity to improve and simplify key facets of the guideline system. (Ex post facto considerations and other doctrines which previously hamstrung efforts to simply the guidelines may melt away now that they are just advisory.)

But Booker's potential will be wasted if judges and the Sentencing Commission continue to cling to the existing guidelines like Linus clutching his security blanket. I fear that it is some judges and members of the Sentencing Commission whose reaction to Booker has been unduly shaped by pragmatism rather than principle. I sense many are still embracing and even extolling the current guidelines out of fear that Congress might over-react to any efforts to bring more humanity to sentencing decision-making. But, rather than be stifled by such an understandable but unhealthy fear, judges and the Sentencing Commission should seize this unique post-Booker moment as an opportunity to begin incrementally developing a more fair and effective federal sentencing system. Rather than fear Congress, judges and the Sentencing Commission should trust lawmakers to respond positively to thoughtful and reasoned explanations of how federal sentencing can and should be improved.

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Bowman: 1/20/06, 08:05 AM
In the end, I think the post-Booker system neither will nor should survive for long.

In this post, a few words on what will (or at least seems most likely to) happen—At present, viewed from a national perspective that aggregates the experiences of all 94 federal districts, the "effectively advisory" regime the court invented in Booker is still close enough to the old arrangements in appearance and results that one can plausibly argue that not much has changed and thus that prosecutors should relax and Congress need not legislate. Though plausible, I do not think this argument will long prevail. First, the Justice Department does not experience the post-Booker world in terms of aggregate national statistical trends. The eyes, ears, and other sensory organs of the Department are its Assistant U.S. Attorneys, whose conclusions about Booker and ultimate recommendations to national departmental policymakers will be based on their local, personal experiences. Whatever the national statistical averages may be, the voices that will ring loudest in Departmental councils will be those of prosecutors from the significant number of districts where Booker has already led to dramatic drops in guidelines compliance. In the end, it won't matter that the Fifth and Tenth Circuits, for example, have largely adhered to the guidelines. In the Department's view, high rates of guideline compliance (and concomitantly high degrees of prosecutorial influence over pleas and sentences) are, or at least should be, the unremarkable norm. It is the fact that circuits like the Second and Ninth are now so far off the guidelines reservation that will cause consternation. Put another way, what will drive the Justice Department is its perception of what it has lost, and not what it has held onto.

Moreover, though post-Booker sentencing practice viewed through the lens of national averages has changed surprisingly modestly so far, the direction of the observable changes is plain and not congenial to either Congress or the Justice Department. Still more importantly, as time goes on and judges become more accustomed to the restoration of a measure of their old authority, they will surely exercise it more. As their confidence grows, guidelines compliance and sentence lengths will surely fall. Any sensible observer at the Justice Department or in Congress will expect precisely this gradual decay of guidelines observance. In consequence, whatever DOJ policymakers may think of the current state of things, they will act based on predictions of a future they will see as growing ever less attractive.

I think that if DOJ believes there is a constitutional way to restore the pre-Booker status quo, they'll urge Congress to legislate that outcome. Every indication points to the conclusion that the Department favors some form of the "topless guidelines" proposal I advocated last year as a temporary fix to Blakely. (As you noted, Doug, I do not favor this approach as a long-term solution substitute for the Booker advisory system, and have told Congress as much.) DOJ seems to think that such a system (which would take advantage of the Harris decision permitting judicial findings of fact to set minimum sentences) would be preferable to the current system and would probably withstand constitutional challenge. Probably the only way DOJ could be dissuaded from putting forward legislation is if they were convinced that the resultant system would itself be found unconstitutional, thus precipitating another system-wide convulsion.

Of course, DOJ merely proposes. Congress disposes. It may be that Congress will not dance to the Department's tune, either because it is unconvinced of the urgency of the matter or because it has too many other election-year fish to fry or because it becomes doubtful of the merits of the Department's proposal. But if the Department makes a sufficiently vigorous case for legislation, I would not want to bet the family homestead against its passage this year.

Tomorrow, I'll close with a few thoughts on why what Booker wrought should not long survive and how matters might order themselves to produce real federal sentencing reform that is neither a return to the pre-Booker status quo nor a desperate adherence to a post-Booker system that, as you said at the outset, Doug, "few would advocate" if "writing on a blank slate."

Berman: 1/20/06, 10:12 AM
I largely agree with your descriptive account for why the post-Booker system may not endure. Indeed, I have started a series of posts on my blog entitled "Dead BookerWalking" because I think the prosecutorial and political realities you describe ensure that the Justice Department will continue to assail the post-Booker system and that Congress will always have a sympathetic ear when DOJ wails.

But my (naive?) hope as we move forward is that the Justice Department's calls for reform are subject to as much scrutiny as are judicial sentencing decisions. You are absolutely right that "what will drive the Justice Department is its perception of what it has lost, and not what it has held onto." But everyone should appreciate and reflect on the fact that, post-Booker, prosecutors have not lost the ability to help achieve justice in individual cases. Rather, what prosecutors seem to have lost (though only somewhat) as a result of Booker is (1) their considerable power to roll over defendants during plea negotiations through the threat of harsh mandatory sentencing terms, and (2) their unfettered discretion to dictate precise federal sentencing outcomes through their charging and plea decisions.

Representative Tom Feeney, who was a driving force behind the limits on judicial sentencing discretion enacted in the PROTECT Act in 2003, defended his work by invoking the importance of "checks and balances" in "our republican form of government." Feeney wrote, in a 2003 article in Criminal Justice Ethics, that our system of government "eschews granting any government official unlimited power and discretion." I sincerely hope that Representative Feeney and other members of Congress take these words to heart, and that they recognize that DOJ's calls for post-Booker reform are fundamentally an effort by prosecutors to ensure that their power and discretion in the federal criminal justice system is not checked or balanced by sentencing judges.

Serious scrutiny of the Justice Department's calls for reform would not only reveal the institutional power play that lies at its heart, but also how misguided a "topless guidelines" system is from both a constitutional and policy perspective.

On the constitutional front, the recent Supreme Court transitions entail that there is not a single certain vote on the court to uphold such a system, while there are at least four certain votes to reject it. Moreover, the constitutional inquiry should not be simply about counting Justices. The executive and legislative branches have, of course, sworn an oath to uphold the Constitution; officials in both branches should take the time to reflect on whether they think a "topless guidelines" system respects and honors the importance of "checks and balances" in "our republican form of government."

On the policy front, the fundamental imbalances in a "topless guidelines" system would exacerbate the complexity, rigidity and harshness that marked the pre-Booker guideline system. Moreover, I fear the enactment of a topless guideline system could have profoundly harmful ripple effects throughout the entire federal criminal justice system.

Sobered by these closing thoughts, I am eager to hear your account of how to produce "real federal sentencing reform." As you and I both know, the true challenge is not in devising a blueprint for a better sentencing system, but rather in dealing with the political realities that have kept federal policy-makers from following the many fine blueprints for reform that have been previously suggested.

Bowman: 1/20/06, 06:52 PM
The bottom line here is that the pre-Booker regime of federal sentencing, with its historically stringent penalties, complex interlocking structures of guidelines and statutory mandatory minimum sentences, and relatively tight constraints on judicial choice, suited both the political purposes of Congress and the operational needs of the Justice Department to a "T". If a constitutional means of restoring the status quo ante-Booker exists, it will surely be employed. Hence, Justice Department's enthusiasm for so-called "topless guidelines."

A quick aside on the "topless guidelines" proposal. The criticism heaped on the proposal by some observers seems to me both overblown and often misleading. To hear some folks tell it, so-called "topless guidelines" would usher in an unprecedented reign of sentencing terror. Twaddle. All it would do is reinstitute the pre-Booker guideline system almost exactly as it existed before. The proposal is built on a peculiarity of the Blakely and Booker decisions—in both, the jury trial right is triggered only as to facts that increase a defendant's maximum sentence exposure. Neither Blakely nor Booker overturns Harris v. United States, which permits post-conviction judicial findings of fact to generate minimum sentences. Thus, under "topless guidelines," post-conviction judicial findings of fact would generate the same ranges they did before Booker (and do now). The only difference between "topless" guidelines and the old pre-Booker guidelines would be that, while the bottom of the range was legally binding before and would be again, the top of the range that was binding before Booker would now be "advisory." Yes, it would be theoretically asymmetrical in that judges could as a matter of law more easily move up than down. But the post-Booker data confirms the prediction I made back in the summer of 2004 that the number of additional upward departures in a system with no hard cap on the top of guideline ranges would be de minimis.

The real reason critics are so frantic about "topless guidelines" is not because they would be notably worse than the pre-Booker system, but precisely because they would reinstate that system—and the topless guidelines haters opposed the pre-Booker system. That's a perfectly sensible reason to oppose topless guidelines. Indeed, it is precisely the reason I do not support them myself as a long-term response to Booker. But let's not pretend that "topless guidelines" are some horrible thing that they plainly are not.

But back to politics. As noted, DOJ will seek restoration of the pre-Booker system. Topless guidelines accomplish that restoration. While the clutter of the political calendar may slow things down, the only way DOJ will not sooner or later seek—and Congress will not sooner or later pass—something like topless guidelines is if one or the other institution becomes convinced that this option is either constitutionally foreclosed or at least constitutionally risky. Only the Supreme Court can erect this particular roadblock╦by taking a case that raises the application of Blakely and Booker to minimum sentences and using that vehicle to overturn Harris. Were that to happen, DOJ and Congress would be forced either to accept the post-Booker advisory system or look for an entirely different sentencing architecture that accomplishes their goals of achieving reasonable uniformity and stringency in sentencing outcomes, constraining judicial discretion within reasonable limits, and giving prosecutors adequate tools for managing case loads and inducing cooperation. Precisely because I think the status quo is likely to continue its current drift toward reduced guidelines compliance, I think DOJ would find the prospect of indefinite maintenance of the present system undesirable and—perhaps—open itself to consideration of an alternative model.

This forum is not the place for a description of what an alternative model might look like. However, I've described one such model in "Beyond BandAids: A Proposal for Reconfiguring Federal Sentencing After Booker." Likewise, I've laid out a more detailed analysis of the necessary political preconditions for adoption of such a model in "Mr. Madison Meets a Time Machine: The Political Science of Federal Sentencing Reform."

The point on which I'll close this enjoyable exchange is this: If a fundamental reconfiguration of federal sentencing structures is to occur, someone or some institution outside of Congress, the Justice Department, and the robed judiciary will have to take the lead in formulating and advancing it. Congress lacks the expertise for the job. DOJ has the expertise but not the motivation. The judges don't do legislation. Institutionally, that leaves the Sentencing Commission. One of the most puzzling features of the post-Booker landscape is the absence of the Commission as anything other than a gatherer of data. The Commission has the time, the expertise, the data, and (one would think) the motivation to take a leading role in molding thinking about where we should go from here. But the silence from the second floor of the Thurgood Marshall Building has been deafening. As you correctly note, Doug, there are private groups such as the Constitution Project who have done and hopefully will continue to do valuable thinking about what should come next. But without the engagement and leadership of the Commission, that thinking may be all for naught.

The prospects for signficant positive change in federal sentencing are, frankly, a little bleak. But it is too early to despair. With your blog flogging us onward, Doug, we may yet reach those broad and sunlit lands of which we sentencing geeks all dream.

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