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Whither the Guidelines?

BY Jeffrey T. Green
May 30, 2007

You might be forgiven for concluding that the U.S. Sentencing Guidelines were largely a thing of the past following the Supreme Court's decision two years ago in United States v. Booker, 543 U.S. 220 (2005). The Court held that the Guidelines were purely advisory ' not mandatory ' and just one among many factors to be consulted in meting out a sentence under 18 U.S.C. ' 3553(a). Other factors specified in ' 3553(a) include such overarching considerations as deterrence, respect for the law, and potential for rehabilitation. Given the overt hostility previously expressed by sentencing courts to the Guidelines, you might have thought that the Guidelines had atrophied to the point of disuse. You'd be wrong. The Supreme Court is now considering two cases that may restore the Guidelines to their former position of dominance in sentencing proceedings across the United States: Rita v. United States, No. 06-5754, and Claiborne v. United States, No. 06-5618.

Discretion Is Given, Then Taken Away

Following the Booker decision, DOJ and the Sentencing Comm- ission, which authored the Guidelines, made a tremendous effort to resurrect the Guidelines' primacy in the sentencing world. In seminars and meetings with district judges, and at sentencings, they proposed that, even if the Guidelines could no longer be treated as 'mandatory,' they could be viewed as 'presumptively reasonable' or accorded 'special weight.' Through these euphemisms, courts could continue to apply the Guidelines basically as they had before Booker ' as mandatory ' with only some additional, superficial wordplay. This approach was warranted, DOJ argued, because adherence to the Guidelines promotes 'uniformity' and recognizes the 'expertise' of the Sentencing Commission.

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