Special Section
New Thinking About Crime and Punishment

Aftermath

The federal sentencing guidelines are dead. Long live the guidelines.

illustrationOn Jan. 12, 2005, the U.S. Supreme Court ruled that the strict and sometimes unforgiving sentencing guidelines that have tied the hands of federal judges for nearly 20 years would no longer bind them.

The ruling came in United States v. Booker and United States v. Fanfan, consolidated cases which became known almost immediately in the criminal justice world as simply "Booker," much the way lawyers use one-word references for other cases of landmark importance, like Miranda or Gideon.

But, while the Court ruled 5-4 that judges are no longer obligated to follow the guidelines' punishment ranges when imposing sentences, it did not throw out the guidelines completely and, in a second part of its decision--and by a different 5-4 split--appears to have preserved their use, saying judges must continue to consult them.

The twin rulings have answered some questions with certainty but have raised a host of new ones, leaving practitioners and prisoners wondering where they stand as the aftershocks subside and the lower courts begin to feel their way through the new landscape.

"The clearest winners in this, at the moment, are the federal judges," said Professor William Stuntz. "They've been complaining about the inflexibility of the guidelines for the better part of 20 years, and suddenly they've been given back much of the discretion that the guidelines took away from them."

Defendants, too, are likely to benefit from Booker, at least in the short run, because judges are no longer bound by some of the tougher penalties that the guidelines required. "When judges complained about the mandatory rules, it was usually because they thought the penalties were too harsh, especially in drug cases," said Stuntz. "But this could turn out to be a case of 'Be careful what you wish for,'" he added, "because if sentences now start looking lenient, Congress could decide to jump in with even tougher mandatory minimum penalties."

Indeed, one of the new questions after Booker is whether Congress, fearful that courts will now be too lenient, will try to impose a "Booker fix" in the form of even tougher penalties or other legislation. "That's a huge question at the moment," said Professor Philip Heymann '60. Heymann recently joined ranks with former Attorney General Edwin Meese and Frank O. Bowman '79, a professor at Indiana University School of Law, asking the House of Representatives not to pursue a quick fix in response to Booker.

Another looming question is whether or to what extent Booker will be given retroactive effect--whether droves of defendants who were sentenced under the guidelines will now ask to be resentenced without the guidelines playing a mandatory role in their punishments.

The Court did not specifically address the question of retroactivity in Booker, but suggested that the reach of the decisions is limited to cases awaiting sentencing and some cases where appeals were pending. A few lower courts have already decided that Booker does not have retroactive effect. Nevertheless, says Stuntz, until the Court unequivocally slams the door on Booker-based attempts to reopen old punishment decisions, there will probably be hundreds of motions or petitions to reopen sentencings.

But perhaps the most important question raised by Booker is: What is the role of sentencing guidelines, now that they are no longer mandatory but must still be consulted? "What will an advisory guideline system look like?" Stuntz asked. "How much should judges adhere to them?"

Although Booker made clear that the guidelines must be consulted and taken into account, it did not expressly address the question of how much weight they should be accorded by sentencing courts. There are already several district court decisions with varying opinions regarding the precise weight that should be given to the guidelines. Some have held that the guidelines should be given "heavy weight" and should be deviated from only in unusual cases for clearly identified and persuasive reasons, while others have said the guidelines are just one of a number of sentencing factors to be considered.

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