Document Type

Article

Publication Date

2008

Abstract

In a prescient New York Times op-ed piece entitled "Let Guidelines be Guidelines," written in response to the Supreme Court's decision in Blakely v. Washington, before certiorari was granted in United States v. Booker, Bill Stuntz of Harvard and Kate Stith Cabranes of Yale urged that the best solution for the constitutional crisis facing the United States Sentencing Guidelines would be to treat the Guidelines as guidelines, and not as a straightjacket. The Supreme Court evidently took a similar view, deciding in Booker that the Guidelines were constitutional only to the extent that they were not mandatory. The recent follow-up decisions, Kimbrough and Gall, reinforce and extend the holding of Booker that district court judges are not bound by the Guidelines, but should impose sentences based on the general criteria set forth in 18 U.S.C. § 3553(a), after giving due consideration to the Guidelines.

Before the cheering starts among district judges, let me renew the plea of Professors Stuntz and Cabranes, only this time from the other direction. Just as "sentencing guidelines" are misnamed when they are treated as narrowly rigid binding rules, so are they misnamed when they cease to guide- anyone. In these quick responses to the Supreme Court's recent decisions, I want to make two points. First, as a matter of substantive sentencing policy, a system of carefully thought-out guidelines that are subject to broad judicial discretion to depart, but accorded respect by the courts and followed more often than not, is a highly desirable system for the federal courts. Second, the existing system approximates such an ideal, but does so as a result not of conscious policy, but of a strange and somewhat accidental confluence of circumstances, in which a moderate and reasonable outcome has resulted from the clash of extreme and ill-considered positions. That haphazard path has left some residue that interferes with an ideally functioning system. Still, we are far better off today than we were under the prior mandatory guidelines regime.

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