INTRODUCTION I. THE FAILURE OF THE MANDATORY GUIDELINES SYSTEM A. The Vision of the Sentencing Reform Act's Framers: An Expert Judicial Branch Agency Insulated from Political Influence B. The Breakdown of the Framers' Vision: Insufficient Checks on the Commission 1. The Commission's Exemption from Judicial Review and Related Transparency and Explanation Requirements 2. The Eradication of Reasoned Departures 3. Unexplained and Imbalanced Guidelines II. THE SUCCESS OF THE ADVISORY GUIDELINES SYSTEM III. THE UNCONVINCING RATIONALES FOR A BOOKER "FIX" A. Disparities Under the Mandatory Guidelines B. Racial Disparity 1. Improvements in Racial Fairness Through Increased Judicial Discretion 2. The Commission's Study a. Missing and Excluded Variables b. Failure to Report Fluctuations That Would Undermine the Discrimination Hypothesis c. Different Methodologies; Different Results C. Interdistrict Disparity D. Interjudge Disparity IV. THE PROPOSED FIXES A. Judge Sessions's Proposal 1. The Details 2. The Flaws B. The Commission's Proposal CONCLUSION 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 Sentencing Guidelines binding on sentencing judges: 18 U.S.C. [section] 3553(b), the provision that had confined departures to specified, limited circumstances, and 18 U.S.C. [section] 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. [section] 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 with resistance by the Commission and the Department of Justice, (5) and many lower courts continued to treat the guidelines as "virtually mandatory." (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 individual 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 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 'mandatory') 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 devices designed to give its guidelines, as well as its restrictions on nonguideline sentences, increased weight at sentencing, and to more strictly enforce the guidelines on appeal. (13) These proposals--seeking to fix a system that, far from being broken, is actually working properly for the first time--are unwise, unworkable, and likely unconstitutional.
This Article proceeds in four parts. Part I explores the history and failings of the former mandatory guidelines system. Some of the history we set forth has not previously been examined, yet is critical to understanding how the Supreme Court came to the conclusion that the Sentencing Commission's policy statements and commentary, as well as its guidelines, were binding on judges--a conclusion that was essential to the Court's recognition in Booker that the guidelines regime was "mandatory." (14) Part II describes the improvements made by the advisory guidelines system, drawing primarily upon new data and recent cases. Part III examines the flawed justifications that have been offered for a Booker "fix." Most importantly, we carefully examine and refute the claim that judges have exercised their increased discretion after Booker in a racially biased manner. Drawing on a variety of evidence including empirical analyses by others, we conclude that (1) increased judicial discretion after Booker has mitigated racial disparity built into the guidelines; (2) racial disparity after Booker is driven primarily by the increased impact of mandatory minimums that constrain judicial discretion and apply most frequently to black offenders; and (3) if it were possible to devise a study controlling for all legally relevant factors, a finding of racial disparity in judicial decisionmaking would be unlikely. Part IV sets forth practical, policy, and constitutional reasons for rejecting both Judge Sessions's and the Commission's proposals. We conclude that these proposals would likely violate Booker and its progeny, and that Judge Sessions's proposal would violate fundamental principles of separation of powers.
THE FAILURE OF THE MANDATORY GUIDELINES SYSTEM
The Vision of the Sentencing Reform Act's Framers: An Expert Judicial Branch Agency Insulated from Political Influence
Congress could have enacted a set of statutory sentencing guidelines. But the framers of the SRA (15) recognized that Congress lacked the expertise and political neutrality required for this task, and chose instead to delegate the job to a sentencing commission. (16) As envisioned by Congress, the Commission was to be a politically neutral expert body that would promulgate guidelines based on empirical research and judicial experience. (17) The Commission would be guided by the "intelligible principles" set forth in the SRA, (18) which required it to develop guidelines on the basis of sentencing data, empirical research, and consultation with frontline participants. (19) The Commission would be engaged in an "essentially neutral endeavor" (20) and would not be coerced or co-opted by the political branches. (21) Because the SRA's framers intended for the new Commission to be insulated from political influence, the judicial branch was the natural place to put it. (22)
There were other compelling reasons for locating the Commission within the judicial--and not the executive--branch. One was Congress's "strong feeling" that sentencing was "within the province of the judiciary" and "should remain primarily a judicial function." (23) Another was that the executive branch had no constitutional or historical authority to make sentencing policy or to impose sentences. (24) Another was Congress's related concern that placing sentencing authority within the executive branch would violate constitutional separation of powers principles (a concern that, as noted below, the Supreme Court shared). (25) Congress had no expectation that the Department of Justice would dominate the Commission. The SRA gave the Department only an ex officio, nonvoting seat, (26) and placed the Department on the same footing as other institutional actors in the rulemaking process. (27) Moreover, aware that ex ante sentencing rules might have the effect of transferring sentencing power to prosecutors, (28) Congress directed the Commission to issue policy guidance to judges to avoid that result. (29)
The expectation was that the judicial branch would have the greatest ongoing influence over the development of the guidelines, not only because at least three voting Commissioners had to be judges, (30) but also because judges were to be the primary source of information regarding whether and how the guidelines needed to be revised. To determine whether the guidelines were effective in meeting the purposes of sentencing--and to revise them if they were not (31)--the Commission was to systematically collect and study data regarding sentences imposed, the relationship between the factors set forth in [section] 3553(a) and sentences imposed, and the effectiveness of sentences imposed in meeting the purposes of sentencing. (32) District courts were required to state their reasons for departure, (33) and appellate courts were to uphold "reasonable" departures having regard for the sentencing court's reasons and the factors set forth in [section] 3553(a). (34) The Commission would study the district courts' reasons and the appellate courts' decisions, and revise the guidelines based on what it learned. As then-Chief Judge Breyer stated:
[T]he very theory of the Guidelines system is that when courts, drawing upon experience and informed judgment in such cases, decide to depart, they will explain their departures. The courts of appeals, and the Sentencing Commission, will examine, and learn from, those reasons. And, the resulting knowledge will help the Commission to change, to refine, and to improve, the Guidelines themselves. (35) The Commission's placement within the judicial branch proved critical in Mistretta v. United States; largely for this reason, the Supreme Court rejected a separation of powers challenge to the SRA. (36) Emphasizing the "consistent responsibility of federal judges to pronounce sentence within the statutory range established by Congress," (37) the Court noted that it was proper to delegate to the judicial branch rulemaking power related to the "conduct of its own business." (38) Sentencing rules, the Court reasoned, were "attendant to a central element of the historically acknowledged mission...