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Booker Rules Baron-Evans FINAL_v2.docx (DO NOT DELETE) 6/13/2012 1:05 PM ARTICLE BOOKER RULES † AMY BARON-EVANS & KATE STITH INTRODUCTION .............................................................................. 1632 I. THE FAILURE OF THE MANDATORY GUIDELINES SYSTEM .............. 1636 A. The Vision of the Sentencing Reform Act’s Framers: An Expert Judicial Branch Agency Insulated from Political Influence ......... 1636 B. The Breakdown of the Framers’ Vision: Insufficient Checks on the Commission ................................................................... 1641 1. The Commission’s Exemption from Judicial Review and Related Transparency and Explanation Requirements ............................................ 1641 2. The Eradication of Reasoned Departures ..................... 1646 3. Unexplained and Imbalanced Guidelines .................... 1657 II. THE SUCCESS OF THE ADVISORY GUIDELINES SYSTEM.................. 1667 III. THE UNCONVINCING RATIONALES FOR A BOOKER “FIX” ............... 1681 A. Disparities Under the Mandatory Guidelines .............................. 1682 B. Racial Disparity ....................................................................... 1685 1. Improvements in Racial Fairness Through Increased Judicial Discretion ......................................... 1686 2. The Commission’s Study ................................................ 1691 a. Missing and Excluded Variables .................................. 1694 † Amy Baron-Evans, Sentencing Resource Counsel, Federal Public and Community Defenders; Kate Stith, Lafayette S. Foster Professor of Law, Yale Law School. The au- thors thank Daniel L. Kaplan for editorial advice on a previous draft, Jennifer Niles Coffin for research assistance, Paul J. Hofer for statistical analyses, and Yale Law School students Ravi Ramanathan, Jonathan Siegel, and Dana Stern for editorial assistance. (1631) Baron-Evans FINAL_v2.docx (DO NOT DELETE) 6/13/2012 1:05 PM 1632 University of Pennsylvania Law Review [Vol. 160: 1631 b. Failure to Report Fluctuations That Would Undermine the Discrimination Hypothesis ...................................... 1697 c. Different Methodologies; Different Results ...................... 1698 C. Interdistrict Disparity ................................................................ 1703 D. Interjudge Disparity .................................................................. 1708 IV. THE PROPOSED FIXES ............................................................... 1713 A. Judge Sessions’s Proposal ........................................................... 1713 1. The Details ...................................................................... 1713 2. The Flaws ........................................................................ 1716 B. The Commission’s Proposal ....................................................... 1730 CONCLUSION ................................................................................. 1741 INTRODUCTION In United States v. Booker, the Supreme Court excised two provisions of the Sentencing Reform Act of 1984 (SRA)1 that had made the Sen- tencing Guidelines binding on sentencing judges: 18 U.S.C. § 3553(b), the provision that had confined departures to specified, limited cir- cumstances, and 18 U.S.C. § 3742(e), the standard of review under which courts of appeals had enforced those limitations.2 The Court made the law of sentencing the purposes and factors set forth in 18 U.S.C. § 3553(a), and the standard of review for all sentences, inside or outside the guideline range, the “reasonableness” of the sentencing judge’s application of that law.3 The mandatory guidelines system Booker replaced was badly out of balance in ways never contemplated by the framers of the SRA or the Supreme Court when it upheld the U.S. Sentencing Commission against separation-of-powers challenges.4 Yet Booker was initially met 1 Sentencing Reform Act of 1984 (SRA), Pub. L. No. 98-473, tit. II, ch. 2, 98 Stat. 1987. 2 543 U.S. 220, 259 (2005). Booker made clear that sentencing judges would still consider the guideline range as one of the factors in 18 U.S.C. § 3553(a), and the Court instructed judges in a subsequent decision to begin the sentencing determina- tion by calculating the guideline range. Gall v. United States, 552 U.S. 38, 49-50 (2007). 3 Booker, 543 U.S. at 261, 264. 4 See Mistretta v. United States, 488 U.S. 361 (1989) (rejecting several constitutional challenges to the Commission, its composition, and its delegated authority). Baron-Evans FINAL_v2.docx (DO NOT DELETE)6/13/2012 1:05 PM 2012] Booker Rules 1633 with resistance by the Commission and the Department of Justice,5 and many lower courts continued to treat the guidelines as “virtually man- datory.”6 In subsequent decisions, the Supreme Court firmly insisted that the guidelines are—and must be—advisory only.7 The result has been a gradual but marked improvement in the quality, transparency, and rationality of federal sentencing, in both the sentencing of indi- vidual defendants and the Commission’s rulemaking. The advisory guidelines system has broad support: the vast majority of federal judges believe that advisory guidelines achieve the purposes of sentencing better than any kind of mandatory guidelines system or no guidelines at all,8 the Criminal Law Committee of the Judicial Conference of the United States supports the advisory guidelines system,9 prosecutors 5 The Commission promptly instituted a “standard training program” that explained “how the sentencing guidelines reflect Congress’ objectives in the SRA and that the guidelines accordingly should be given substantial weight in fashioning sentences . post-Booker.” U.S. SENTENCING COMM’N, FINAL REPORT ON THE IMPACT OF UNITED STATES V. BOOKER ON FEDERAL SENTENCING 42 (2006) [hereinafter BOOKER REPORT]. The Department of Justice initially directed prosecutors to “actively seek sentences within the [guideline] range . in all but extraordinary cases . involving circumstances that were not contemplated by the Sentencing Commission.” Memorandum from James B. Comey, Deputy Att’y Gen., to All Fed. Prosecutors 2 (Jan. 28, 2005), available at http://www.justice.gov/dag/readingroom/memo-01282005.pdf. 6 Rita v. United States, 551 U.S. 338, 366 (2007) (Stevens, J., concurring). 7 See, e.g., Gall, 552 U.S. at 51 (stating that a district court commits “significant pro- cedural error” by “treating the Guidelines as mandatory”). For a further discussion of the Court’s post-Booker decisions, see infra Part II. 8 See U.S. SENTENCING COMM’N, RESULTS OF SURVEY OF UNITED STATES DISTRICT JUDGES JANUARY 2010 THROUGH MARCH 2010 tbl.19 (2010) (reporting that when asked which system “best achieves the purposes of sentencing,” 75% of district court judges selected the current advisory guidelines system, 8% selected no guidelines, 3% selected the mandatory guidelines in effect before Booker, and 14% selected mandatory guidelines with broader ranges and jury factfinding, if coupled with fewer mandatory minimums). 9 See Theodore McKee, Chief U.S. Circuit Judge, U.S. Court of Appeals for the Third Circuit, Statement Before the U.S. Sentencing Commission (Feb. 16, 2012), http:// www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/201202 15-16/Testimony_16_McKee.pdf; Paul J. Barbadoro, U.S. Dist. Judge, Dist. of N.H., Statement Before the United States Sentencing Commission (Feb. 16, 2012), http:// www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/201202 15-16/Testimony_16_Barbadoro.pdf; see also Letter from Hon. Myron H. Bright, U.S. Circuit Judge, to Hon. Patti B. Saris, Chair, U.S. Sentencing Comm’n (Jan. 10, 2012), http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/ 20120215-16/Testimony_16_Bright.pdf. Baron-Evans FINAL_v2.docx (DO NOT DELETE) 6/13/2012 1:05 PM 1634 University of Pennsylvania Law Review [Vol. 160: 1631 prefer advisory guidelines to other available options,10 and the organized public and private defense bars support the advisory guidelines system.11 Nevertheless, a former Chair of the Sentencing Commission and the current Commission itself have each proposed that Congress enact a Booker “fix.” Former Commission Chair Judge William K. Sessions III proposes “the resurrection of presumptive (formerly called ‘mandato- ry’) guidelines,” with enhancing facts to be charged in an indictment and proved to a jury beyond a reasonable doubt or admitted by the defendant.12 The Commission proposes codification of a variety of 10 See Lanny A. Breuer, The Attorney General’s Sentencing and Corrections Working Group: A Progress Report, 23 FED. SENT’G REP. 110, 112 (2010) (noting that prosecutors, defense attorneys, and judges “were not enthusiastic” about a return to a mandatory guidelines structure, and that the Department of Justice “does not plan to seek legisla- tive reinstatement of a mandatory Guidelines system”); Matthew Axelrod, Assoc. Deputy Att’y Gen., Statement Before the U.S. Sentencing Commission 88-89 (Feb. 16, 2012) (transcript available at http://www.ussc.gov/Legislative_and_Public_Affairs/Public_ Hearings_and_Meetings/20120215-16/Hearing_Transcript_20120216.pdf) (noting that “any change is going to result in lots of litigation and be disruptive” and that “uncer- tainty is not good for prosecutors or . the justice system”). 11 See, e.g., Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years After Booker: Hearing Before the Subcomm. on Crime, Terrorism, & Homeland Sec. of the H. Comm. on the Judiciary,
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