Bowman on Post-Booker Federal Sentencing

Frank O. Bowman III (University of Missouri School of Law) has posted Nothing is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System (Federal Sentencing Reporter, Vol. 24, No. 5, 2012) on SSRN. Here is the abstract:

This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.

First, the post-Booker advisory system is conceptually indefensible. It retains virtually every feature excoriated by critics of the original sentencing guidelines. Its extreme ‘advisoriness,’ while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place.

More importantly, the post-Booker system does not solve the biggest problem with the pre-Booker system – that its architecture and institutional arrangements predisposed the Commission’s rule-making process to become a one-way upward ratchet which raised sentences often and lowered them virtually never. Its sole relative advantage – that of conferring additional (and effectively unreviewable) discretion on sentencing judges – is insufficient to justify its retention as a permanent system. 

Second, there exist a number of constitutionally permissible alternatives to the court-created Booker system, one of which -- that originally proposed by the Constitution Project and more recently endorsed by Judge William Sessions, former Chair of the U.S. Sentencing Commission – is markedly superior to the present system. 

Third, the difficult problem is not designing a sentencing mechanism better than either the pre- or post-Booker guidelines, but ensuring that such a system, once in place, does not replicate pre-Booker experience and become a one-way upward ratchet prescribing ever higher sentences. I offer suggestions about how this difficulty might be solved. However, I concede both the difficulty of this problem and the justice of the concern that, however imperfect the advisory system, it may be the best that can be achieved given the present constellation of institutional and political forces.