This entry is part of our continuing commentary on the decisions yesterday in Gall v. US and Kimbrough v. US, both of which addressed issues in federal sentencing.

This entry is by Frank Bowman of the University of Missouri School of Law. His bio and contact info are here.

My reaction to the Supreme Court’s twin decisions in Gall and Kimbrough depends on which hat I’m wearing when I read them.

The Lawyer’s Perspective

From the point of view of federal prosecutors and defense lawyers, one’s response probably depends in some measure on the jurisdiction in which one practices. The Court has plainly signaled that district courts have substantial discretion to impose sentences outside the applicable guideline range and that courts of appeals should review non-guideline sentences with a tolerant eye. So if I practice in the Second or Ninth Circuits where appellate discipline was already relaxed, nothing much is likely to change in the immediate future. On the other hand, if I practice in a circuit like the Fourth, Seventh, or Eighth, I would expect increased willingness on the part of district courts to deviate from the guidelines and a marked easing of appellate review.

At sentencing, some arguments that were either out-of-bounds (disagreement with the policy judgments inherent in the crack-powder ratio) or officially disfavored (considerations of age, prior military service, good works, ordinary family ties, and the like) are probably on the table. So lawyers on both sides will have to adjust the content and tenor of their sentencing advocacy. They should not make the fatal error of stinting on their understanding of guidelines issues or proof of guidelines-determinative facts, because in any court the guideline range will remain the critically important departure point for the judge’s sentencing decision. But successful sentencing advocacy on both sides will now rely less on law and more on the rhetoric of justice and equity.

The Defendant’s Perspective

Defense lawyers will, as a rule, like the new regime better than the old because it opens a broader field for advocacy. Whether defendants will fare any better is a very different question. Despite the long-standing conventional academic wisdom that sentences prescribed by the Guidelines are self-evidently too high, and that this injustice would surely be remedied, or at least markedly ameliorated, if district judges were given greater sentencing discretion, on average judges have done very little with the additional discretion granted them by Booker. One of the remarkable facts about federal sentencing is that, between January 2005, when Booker declared the Guidelines advisory, and June 2007, the average federal criminal sentence actually increased. The reasons for this rather surprising development are not entirely clear (though I’ve offered some tentative suggestions in The Year of Jubilee … or Maybe Not: Some Preliminary Observations about the Operation of the Federal Sentencing System After Booker, 43 Houston L. Rev. 279 (2006)), but what’s perfectly plain is that the sentencing levels generated by the current federal sentencing structure are quite resistant to marginal fiddling with degrees of judicial discretion.

After Gall and Kimbrough, defendants may derive some emotional satisfaction from hearing their lawyers make the welkin ring with pleas for mercy. But it’s not at all clear that the average federal criminal defendant not charged with a crack cocaine offense will see much immediate benefit in terms of actual sentence length. Indeed, some defendants are going to find that the 1980s reformers who wanted guidelines in order to restrain the excessively punitive impulses of some judges knew whereof they spoke. Although the number of upward departures from the guidelines has always been small in comparison with downward variations, since Booker, the percentage of sentences above the guidelines has roughly doubled. I can’t see Gall and Kimbrough changing that trend.

The combination of the Kimbrough decision and the Sentencing Commission’s now-retroactive amendments to the crack guideline will plainly confer a big benefit on crack defendants who will, on average, receive lower sentences than they did before. But I have a sneaking suspicion that crack cases will be a notable exception to the norm. It may be that, over time, sentence lengths will drift gradually lower as more judges become comfortable with straying from the Guidelines reservation, but I wouldn’t bet much on the drift being either rapid or sustained.

The Sentencing Reformer’s Perspective

When wearing my sometime-defense-lawyer hat, I’m sure I’ll like the world created by Gall and Kimbrough better than the pre-Booker state of affairs. But when I put on my sentencing reformer hat, the situation looks less attractive. I strongly suspect that the Blakely-Booker-Rita-Gall-Kimbrough line of cases will let all the steam out of the movement for significant reform of the federal sentencing system.

The Guidelines remain in place in all their splendid complexity, and thus the Sentencing Commission feels no need for fundamental re-examination of the edifice that justifies its existence. The Justice Department, regardless of administration, will grumble at the modest decrease in prosecutorial control produced by Gall and Kimbrough, but it will never seek a replacement for the guidelines system so long as judges continue to impose guideline sentences most of the time. Indeed, a rational Justice Department will always favor a complex fact-based system, even an advisory one, over any other alternative because prosecutors are masters of the facts and thus will continue to control at least the critical starting point of judicial sentencing reasoning.

And because the Guidelines system survives and will continue to function in roughly the way it always did, there is no pressure for Congress to intervene to prevent immediate catastrophe. Moreover, congressional Democrats have largely bought into the twin notions that increased judicial discretion will produce more humane sentencing and that expanding judicial sentencing discretion is a poke in the eye to judge-bashing Republicans. Particularly now that the crack-powder disparity so noxious to African-American legislators is being dealt with through guideline amendment and Supreme Court-sanctioned judicial departure authority, there is no readily apparent impetus for congressional re-examination of the fundamental flaws in the federal sentencing machinery.

Conversely, I suspect that the “advisory” character of the Guidelines will only exacerbate the tendency of Congress to meddle in the specifics of guidelines rules. The pre-Booker system had become a one-way upward ratchet as Congress consistently urged or commanded the Commission to raise penalties in response to the national crime du jour or the electoral needs of particular members. But in the pre-Booker world, responsible legislators, at least, were checked by the knowledge that guidelines adjustments necessarily produced real sentence increases across the board to virtually all covered defendants. In the post-Booker-Gall-Kimbrough universe, not even that modest check remains. Micro-managing congressmen proposing yet another two-offense-level increase for spitting on a federal sidewalk can salve any incipient pangs of legislative conscience with the thought that judges will redress any case-specific injustices by exercising their expanded sentencing discretion. My rueful prediction is that, with only occasional exceptions, Congress will, on a congenially bipartisan basis, continue to bloat guidelines sentencing levels whenever electorally convenient.

As for the courts, the Supreme Court took a shot at constitutionally-based solutions for the ills it saw in federal sentencing, but has tied itself in such knots that it has surely lost any stomach for having another go. Those district court judges now on the bench have, with few exceptions, become accustomed to the guidelines. The guidelines sentencing process is familiar and the sentence lengths prescribed by the Guidelines, however long they may seem by comparison to former pre-1987 times, have largely been internalized as an acceptable, or at least democratically sanctioned, norm. For the few cases where applying the guidelines kept judges up at nights, Booker, Rita, Gall, and Kimbrough have given them a safety valve. And thus one should not expect either open or covert agitation from the federal bench for fundamental reform.

It remains a mystery to me why so many people whose basic position is that the Federal Sentencing Guidelines are a disaster and that the sentences imposed in federal court are a travesty are so enamored of the Apprendi-Blakely-Booker-Kimbrough line. I understand that the loosening of the reins these cases command makes judges and defense lawyers feel better because they allow judges and lawyers to act more judge-like and lawyer-like during sentencing. And (to be fair) the practical consequence of these cases is that some defendants, and maybe some thousands, will receive lower sentences than would have been the case before. But from a systemic perspective, it is very hard to avoid the conclusion that the primary result of these cases will be to ensure the continued survival of the Guidelines much as they have always been. As the co-author of a popular treatise on the guidelines and the father of three children whose college tuition will, I hope, be partly financed by the royalties from that book, this result is not without its charms. For others without this rather singular motivation, the allure of the Supreme Court’s Sixth Amendment sentencing work is harder to divine.

Posted in Kimbrough v. US, Gall v. US, Uncategorized