CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, October 2, 2009

Exum Presents Sentencing Paper at Cincinnati

Exum Jelani Jefferson Exum (Kansas) is presenting Why March To A Uniform Beat?: Adding Honesty and Proportionality to the Tune of Federal Sentencing at the University of Cincinnati College of Law today. Here is the abstract:

The Federal Sentencing Guidelines were initially created to increase uniformity, honesty, and proportionality in sentencing by diminishing the influence of individual judges’ biases in the sentencing determination.  However, now that the Guidelines have been rendered advisory by the Supreme Court in United States v. Booker, and circuit courts have been directed to review sentences for “unreasonableness”, most of the Supreme Court’s attention has been focused on ensuring the preservation of uniformity, rather than recognizing the continued importance of honesty and proportionality in bias reduction. The assumption, it seems, is that once uniformity in sentencing is achieved then the potential of judicial bias has been erased. However, judicial bias in sentencing is not eradicated by the form uniformity brought by sentencing guidelines alone. Despite this, the Supreme Court has ignored these additional purposes of sentencing. Recently, in United States v. Gall, the Supreme Court explained that in order for a sentence to be procedurally reasonable, district courts must first calculate and consider the proper Guidelines range, consider the § 3553(a) sentencing factors, and adequately explain the chosen sentence.

However, out of those three requirements for procedural reasonableness, only the requirement that district courts begin the sentencing process by calculating the applicable Guidelines range – the factor that the Court considers to be the most closely related to ensuring uniformity - has been given any force. The requirements to consider the § 3553(a) factors and adequately explain the sentence have fallen by the wayside as vague concepts, though these are the requirements that can most effectively ensure the reduction of impermissible bias in sentencing by allowing for a check on both honesty and proportionality. This Article reveals the Supreme Court’s error in requiring that district courts begin their sentencing determinations by calculating and considering the applicable Sentencing Guidelines range in order for the sentence to be procedurally reasonable. Not only is this requirement based on a misreading of the sentencing statutes, but it also drowns out the voice that Congress sought to give to honesty and proportionality.

This Article provides an in-depth look at the Guidelines themselves in order to make the argument that the Supreme Court’s approach to sentencing post-Booker is misguided. The Supreme Court’s framework for an advisory Guidelines scheme allows the biases that are already buried in the Guidelines themselves to continue to act as theprevailing factors in sentencing. These biases, whatever the source, counteract Congress’ three-fold purpose in promulgating the Sentencing Guidelines in the first place – honesty, uniformity, and proportionality. The Article also studies the concepts of uniformity, honesty, and proportionality to determine their proper role in sentencing. The new, advisory Guidelines system provides the opportunity for the Court to require that sentences be based on § 3553(a) factors, in order to create uniformity in sentencing purposes rather than just in sentencing results, and to require real explanations to justify those sentences. Therefore, this Article proposes that the Supreme Court: (1) do away
with the procedural requirement that district courts begin the sentencing process by calculating the Guidelines range in order to remove the possibility of using the Guidelines as a shield behind which to hide bias in the name of uniformity; and (2) bolster the requirement that district courts explain their sentences using the § 3553(a) factors to provide a means of measuring a district court’s compliance with uniformity, honesty, and proportionality. 
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