CrimProf Blog

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

Thursday, April 30, 2015

Hessick on Booker in the Circuits

Hessick carissaCarissa Byrne Hessick (University of Utah - S.J. Quinney College of Law) has posted Booker in the Circuits: Backlash or Balancing Act? on SSRN. Here is the abstract:

In her essay, Rebellion: The Courts of Appeals’ Latest Anti-Booker Backlash, Alison Siegler identifies what she characterizes as a rebellion in the circuit courts against the Supreme Court’s recent sentencing decisions. Those decisions, which include the seminal case United States v. Booker, transformed the federal sentencing regime from a mandatory system, in which all judges were required to follow the Federal Sentencing Guidelines, into a system in which the Guidelines were only advisory. Professor Siegler perceives the circuits as rebelling against Booker because they have adopted rules that “underpolice within-Guidelines sentences.” 

Professor Siegler is entirely correct that the circuit courts engage in a number of practices that privilege criminal sentences that are consistent with the now-advisory Federal Sentencing Guidelines. Many of those practices, however, are a direct result of the Supreme Court’s own doctrinal choices, rather than evidence of a lower court rebellion. The Supreme Court’s sentencing jurisprudence seeks to promote adherence to the Guidelines, in part by encouraging more favorable standards of appellate review for sentences that are within the Guidelines sentencing range. 

That is not to say the courts of appeals are not, on occasion, circumventing the Supreme Court’s decision in Booker. When the circuits subject non-Guidelines sentences to heightened review, those practices may run afoul of the constitutional remedy that the Supreme Court adopted in Booker. But a claim that any circuit court doctrine that privileges within-Guidelines sentences represents a circuit court rebellion misunderstands the current state of federal sentencing law.

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