"Topless" legislation

As Doug Berman notes in “Sensenbrenner officially introduces topless guidelines Booker fix,” the House judiciary has finally taken the plunge with regard to “fixing” the federal guidelines (draft legislation here). (Believe it or not my friends within the Beltway, there are those that don’t care a whit about the federal sentencing guidelines system, and their 5% or so of all U.S. felony sentences, and this entry isn’t for them.) Doug lays out the purported chief reasons for a fix here as:
Chief arguments/reasons for a Booker fix

-- Concerns about "increasing disparity in sentences"
-- Concerns about "a drift toward lesser sentences"
-- Concerns about "key witnesses [being] increasingly less inclined to cooperate with prosecutors"
-- Concerns about defendants "receiving sentences dramatically lower than the guidelines range without any explanation, or on the basis of factors that could not be considered under the guidelines"
-- The need to "secure a system of tougher, fairer, and greater justice for all"

As Berman notes in subsequent posts (to a chorus composed of the bulk of the academy), many or most of these reasons cannot stand the light of day. There is so much good work on this, I will only say that Stanford Law Review and the Constitution Project have some of the best. (Those of you who care/are in the know can add to this list without assistance, others don’t care – if I’m wrong submit a comment and we’ll get to work.)

So now that the shoe has dropped in the House Judiciary committee, let’s take a preliminary spin in this proposed contraption.

The legislation proposes topless guidelines – is this obscene? You be the judge. “Topless” means that the current federal sentencing guidelines would be modified by statute, so that the existing floor of each box in the 256 cell grid would be maintained (the part that prosecutors like because it limits lower sentences), while the current ceiling of each box is raised from its current position slightly above the floor, to the absolute TOP for that crime, the statutory maximum. Each defendant with a guilty plea only knows that they are pleading guilty to an enormous range that begins in a spot that favors the prosecution and ends in the stratosphere for most crimes.

So what’s wrong with this, assuming that the federal pockets are black-hole deep and imprisonment costs are no object.

Short-Sighted
The proposed Booker fix is technically in compliance with the Apprendi/Blakely/Booker line of Supreme Court decisions – as it stands today. These focused on not exposing a defendant to a sentence that was higher than that approved by law through aggravating factors, without proving those aggravators before a jury. This legislation if it were otherwise sound might be a temporary fix – assuming voluntary guidelines were a problem in and of themselves, which Mike and I have argued elsewhere they are probably not.

This fix is short-sighted because many forward-looking scholars believe that the inconsistencies of the Apprendi line of cases (Why exempt criminal history increases? Why not include mandatory minimums? indeterminate sentences? Etc.) will cause the Supreme Court to speak again, potentially soon, and in ways that negate any benefit from “topless” guidelines, which almost surely have other problems.

Destroys whatever strengths the federal guidelines possess
The federal guidelines are voluntary, but are observed by judges at levels not so very different than the previous incarnation, then mandatory. If it ain’t broke… comes to mind here. And the House Judiciary clearly doesn’t think it’s broke in fundamental ways because it makes no move to revise the guideline factors or basic structure, only to enforce them while expanding the top of each box in short-sighted allegiance to Booker.

IF the USSC’s guideline factors are fair and comprehensive, as some would argue including no doubt the authors of this bill, then narrow ranges are one of its strengths. That is, by limiting most sentences to a narrow range when accounting for the factors one believes are lawful and legitimate, unwarranted disparity is substantially reduced (see previous post on consistency and disparity as discussed in Scotland) almost by definition. That many argue disparity emerges nonetheless simply raises questions about the structure of factors routinely considered, not about the width of the ranges.

So now House Judiciary would massively expand those ranges. In guideline systems, the grid boxes, or guidelines scores in other systems, are meant to bring extreme sentences for typical cases to heel, while preserving the option to go outside the box for extreme cases that are atypical for a variety of aggravating or mitigating reasons having to do with the offender’s conduct and role in the crime, etc. This is Guidelines 101!

But the “Sensenbrenner fix” expands the box for all cases, thereby eliminating the strongest argument for the federal guidelines by opening the floodgates of disparity.

Statutory maximum the wrong standard
The “Sensenbrenner fix” substitutes the statutory maximum for the former guideline maximum, again to avoid the Booker problems while destroying the Booker remedy which many apparently reject as “soft” or something, despite the very stiff sentences meted out by the federal guidelines. The bill confuses the legitimate legislative purpose of a statutory maximum penalty with the legitimate Sentencing Commission purpose of a guideline limit.

Statutes must account for ALL crimes, including the most heinous version that one can imagine. Therefore, statutory maximum penalties must be set higher than judges would normally use in typical cases, because they are meant to account for the worst imaginable case The statutory maximum for drug distribution is set high in DC, 30 years, and other jurisdictions, for this reason – to account for “the worst of the worst.”

Guidelines are developed to address the TYPICAL case, and allow departures to address the atypical case including the “the worst of the worst.” To raise the guideline range to the statutory maximum completely confounds these 2 concepts.

In short, this bill has little so do with reducing sentencing disparity, fair sentencing practice, etc.