Hessick on the Commission's Recommendation to Strengthen the Guidelines System

Carissa Byrne Hessick (University of Utah - S.J. Quinney College of Law) has posted A Critical View of the Sentencing Commission's Recent Recommendations to 'Strengthen the Guidelines System' (Houston Law Review, Vol. 51, No. 5, 2014) on SSRN. Here is the abstract:

In its 2012 report on the continuing impact of Booker, the U.S. Sentencing Commission recommended that Congress consider adopting a number of proposals designed to “strengthen the guidelines system.” In particular, the Commission recommended that Congress: (a) require heightened appellate scrutiny for the substance of sentencing decisions; (b) reconcile statutory language that restricts the Commission’s ability to consider certain offender characteristics in developing guidelines, while apparently requiring courts to consider such characteristics under § 3553(a); (c) codify the three-step sentencing process articulated in federal sentencing guideline §1B1.1; and (d) require district courts to give substantial weight to the guidelines as a factor at sentencing. The Commission’s recommendations to Congress are explicitly designed to ensure that the guidelines play a more prominent role in federal sentencing. 

This Symposium Essay argues that accepting the Commission’s recommendations would upset the balance the Supreme Court struck in the Booker remedy.

In particular, Booker sought to balance adherence to the guidelines with district court discretion. And, given the uncertain state of federal sentencing doctrine, it is unclear whether the current members of the Court believe that the current balance between guidelines and discretion is constitutionally required, or whether they will permit some congressional tinkering with that balance. 

This Symposium Essay identifies another path which might better assure the continued importance of the Guidelines and which does not reduce district court discretion. The Commission can “strengthen the guidelines system” by (1) providing detailed explanations for the numerous policy decisions inherent in the guidelines, (2) amending more guidelines with which there is wide-spread judicial disagreement, and (3) making recommendations to Congress that will increase the legitimacy of the guidelines in the eyes of judges and other sentencing stakeholders.