Guidance from above and beyond.

• Author: Chanenson, Steven L.
• Position: Extended sentence review

INTRODUCTION I. APPELLATE REVIEW AFTER BOOKER: THE PATH NOT YET TAKEN A. Operating Within the Present Framework B. Creating a Responsive Guidelines System II. DISCRETIONARY PAROLE RELEASE: A NEW LIFE FOR AN OLD IDEA III. EXTENDED SENTENCE REVIEW: LESSONS FROM THE PAST CONCLUSION INTRODUCTION

Criminal sentencing does not just happen in the courtroom. Some key sentencing decisions happen long before court convenes, while other critical sentencing decisions take place long after court adjourns. Although the public focuses primarily on the black-robed figure wielding the gavel, sentencing reflects decisions by a veritable parade of actors, including legislators, sentencing commissioners, police officers, prosecutors, juries, trial judges, appellate judges, and executive branch officials. (1) All of these people guide and constrain the sentencing process. Through their official actions, they inform each other about what is happening in their corners of the sentencing drama and prod their counterparts to respond appropriately. As the Supreme Court has written, the federal constitutional design assumes that the branches of government "converse with each other on matters of vital common interest." (2)

Many of the points of communication, leverage, and decision that operate before the trial judge imposes the sentence--including the congressionally set maximum for the offense, mandatory minimums, and the Federal Sentencing Guidelines--have played a central role in the policy and scholarly debate following the Sentencing Reform Act of 1984. (3) Less discussed over the past two decades--but just as vital--are several devices that can provide important postsentencing guidance, communication, and action. These mechanisms can enhance a sentencing system's vitality by providing guidance from "above and beyond."

This Article explores three postsentencing tools. Part I advocates for the meaningful appellate review of sentences. There are various ways to organize such review, and it remains unclear how the federal system will operate after the dust settles from the Supreme Court's recent decisions in Blakely v. Washington (4) and United States v. Booker. (5) Regardless, Congress can build on the recognized value of sustained and substantial interchange between sentencers by taking tangible steps to improve the communicative role of appellate review and to reinforce its structural framework. For example, Congress can work to reduce appellate conflict over the Guidelines by creating a special appellate court, the Court of Appeals for Sentencing, which would resolve important questions of sentencing law.

Part II explores the role of discretionary parole release authority and concludes that a modest version of this device can offer significant benefits in a post-Booker world. It observes that a properly structured indeterminate sentencing scheme, which by definition includes discretionary parole release, would both enable Congress to create a more tightly controlled front-end sentencing system if it so chose and to institutionalize communication from the back-end sentencers.

Finally, Part III examines the possibility of extended sentence review (ESR) for certain long-serving, older offenders. This type of hybrid review--part clemency and part discretionary parole release--may have an important, but limited part to play in modern sentencing. At a systemic level, ESR, by evaluating past sentencing decisions, would offer insights and lessons that current sentencers can use to craft sentencing policy today. Nevertheless, responsible sentencing decisions at the front end should restrict the need for substantial ESR activity.

1. APPELLATE REVIEW AFTER BOOKER: THE PATH NOT YET TAKEN

   Appellate courts should be key players in the consultative and interactive process of sentencing guidance and communication. Appellate review ought to be the fulcrum around which guided sentencing systems revolve. (6) With their dual focus on establishing broad principles of sentencing law and evaluating individual cases, appellate courts can bring a distinctive voice to the sentencing discussion. Indeed, the Supreme Court's decision in Booker encourages appellate courts to take a more active role in conversing with the Sentencing Commission and Congress. At this point, Congress might want to leave the specifics of appellate review largely alone and allow the appellate courts to resolve some of the post-Booker uncertainty. Nevertheless, Congress should act now to improve the structural framework supporting appellate review, which in turn will enhance the federal sentencing system. To that end, Congress should ban sentence appeal waivers from plea agreements, release all sentencing data, and create the Court of Appeals for Sentencing.

   1. Operating Within the Present Framework

      Every jurisdiction has recognized that no set of ex ante rules--be they criminal statutes or guidelines--can either anticipate every circumstance or provide the appropriate sentence for every case. (7) For example, Congress sets the maximum punishment, but that is only suitable for the most severe version of the offense committed by the most serious offender. (8) Sentencing guidelines provide suggestions (of varying degrees of authority, or "bite") just for the typical case, leaving sentencing judges with differing levels of bounded discretion to do their jobs appropriately. (9) This discretion and its boundaries serve as part of a web of checks and balances, an approach that serves us well in other governmental arenas. (10) A key question, of course, is how to construct the limits on that discretion. In many systems, appellate courts play a vital role in that process as part of the proper functioning of a sensible, guided sentencing system. (11) As Professor Kevin Reitz explains elsewhere in this Issue, the existence and amount of appellate review largely determines whether the entire guidelines scheme is more "voluntary" or more "mandatory." (12)

      Even in the pre-Booker world, modern federal district judges possessed some discretion and, under certain circumstances, deviated from the otherwise applicable Guidelines sentence. In doing so, they gave feedback concerning the Guidelines to the Sentencing Commission and Congress. Appellate judges, in turn, can give similar feedback in the post-Booker world while serving their traditional functions of checking the sentencing discretion of the lower court, correcting errors, and developing the law. (13) In theory, this kind of feedback will facilitate "the continuous evolution of sentencing law and policy within the guidelines system." (14) Although perhaps reflecting too much naivete, this "reformist ideal" desires to capitalize on "the interlocking substantive lawmaking competencies of the commission and the judiciary." (15)

      Booker may yield a system that Congress finds acceptable; if so, appellate courts are likely to play a pivotal role. For example, appellate review could ensure that district courts continue to take the Guidelines seriously. Although Booker produced an "effectively advisory" (16) Guidelines system policed by a reasonableness standard on appeal, the true extent and manner of that review remains obscured. (17) The courts can flesh out a "reasonableness" standard of review in various ways. It may mean comparatively little or it may result in a system similar (18) to the pre-Booker regime.

      As of June 2005, only vague appellate trends can be discerned, and even these may be unreliable because most (if not all) of the decisions involve sentences imposed before Booker. Nevertheless, it seems as though district court judges must still calculate and consider the applicable Guidelines range. (19) Sentencing judges cannot ignore the Guidelines on a whim, and appellate courts will reverse sentences with procedural errors as unreasonable. (20) Just as they did before Booker, sentencing judges must work through the Guidelines (including the departure analysis) and find facts by a preponderance of the evidence in order to determine the applicable range. (21) In fact, appellate courts seem likely to continue to review Guidelines calculations, interpretations, and departures de novo. (22) Thus, the Guidelines' now-advisory sentencing range still appears to be rather tightly controlled.

      Once the Guidelines range is determined, the sentencing judge must consider all of the statutory purposes of sentencing--including the Guidelines range--set forth in 18 U.S.C. [section] 3553(a) when imposing the actual sentence. (23) It appears that at least several courts of appeals will subject only the imposition of the final sentence to the more pliable reasonableness review. (24) What this will actually mean is unknown. The Supreme Court has said that the courts of appeals must link their appellate review for "reasonableness" to the Guidelines, (25) but just how close of a link is required or permissible remains to be seen. The Second Circuit, in its initial post-Booker pronouncement, referred to reasonableness as inherently a concept of flexible meaning, generally lacking precise boundaries." (26) Within some still-evolving limits, (27) there may be "more than one right answer." (28) Perhaps this kind of "reasonableness" review will primarily aim to remedy significant legal errors and eliminate outliers (however defined). Appellate review of differences from the now-advisory Guidelines range cannot be exactly what it was before without functionally reintroducing the former Guidelines system and violating the holding of the Booker merits majority. Although the courts of appeals may be able to come close to the old system by setting common law appellate benchmarks for reasonable sentences, it is possible that this, too, would contravene Booker. (29)

      More broadly, Booker may facilitate better communication between the sentencers by encouraging a fundamental review of the Guidelines by the federal courts and by retaining (and perhaps...