Introducing the "heartland departure".

• Author: Lamparello, Adam
• Position: Suggested paradigm for federal sentencing guidelines

1. FEDERAL SENTENCING PRIOR TO THE FEDERAL SENTENCING GUIDELINES II. THE CREATION AND IMPLEMENTATION OF THE FEDERAL SENTENCING GUIDELINES A. A Brief Overview of the Federal Sentencing Guidelines B. The Guidelines" "Heartland"--Simply the Mathematical Averaging of Purposeless, Unprincipled Pre-Guidelines Jurisprudence C. The Commission's Restrictions on Judicial Departures--Insurance Against the Creation of a Purposeful Heartland III. THE FEDERAL JUDICIARY'S RESPONSE TO AN UNPRINCIPLED HEARTLAND AND OVERLY RESTRICTIVE DEPARTURE PARADIGM A. "Hidden Departures": Driving the Sentencing Discourse Underground B. "Overt Departures": Creating Substantive Disparities in Atypical Cases IV. INTRODUCING THE "HEARTLAND DEPARTURE". A. Reviewing the Problem--Competing Objectives in Sentencing Policy B. An Overview of the Proposed Solution--The "Heartland Departure " C. The "Heartland Departure" Will Enable the Evolution of a Principled Heartland Through Lawmaking by Trial and Appellate Courts as Well as the Sentencing Commission 1. Trial Court Lawmaking 2. Appellate Court Lawmaking 3. Commission Lawmaking D. Suggested Policy Statements Regarding the "Heartland Departure". E. Possible Implementation of the "Heartland Departure" in Light of the Hatch-Sensenbrenner Amendment to the PROTECT Act F. Lessons from the Minnesota Sentencing Guidelines Regarding the Development of a Purposeful, Principled Sentencing Jurisprudence V. CONCLUSION Under the Federal Sentencing Guidelines (the "Guidelines"), sentencing decisions have often been comprised of "more complication of detail than richness of concept." (1) This Article proposes one means--the "heartland departure"--by which federal sentencing procedure may be able to gain the conceptual depth and purpose it currently lacks.

   Prior to the advent of the Guidelines, sentencing decisions were primarily the product of unfettered judicial discretion; no rules, principles, precedent, or purposes guided or controlled district court judges in their determination of particular sentences to impose. The exercise of this discretion resulted in unjustifiable disparities in sentencing among similarly-situated defendants. As such, pre-Guidelines jurisprudence could be characterized as "lawless" in that sentences were primarily the product of individual judges' subjective predilections. Furthermore, in the absence of meaningful appellate review of such sentencing determinations, district court judges rarely, if ever, wrote reasoned sentencing decisions justifying the imposition of a given sentence in light of the purposes of criminal punishment. As such, the system was also purposeless, lacking the essential foundations for a doctrinally-rich common law of sentencing.

   While the Guidelines were designed to remedy these problems by reducing judicial discretion and creating a detailed grid of sentencing norms, their method of adoption ensured that federal sentencing practice would remain purposeless. In short, the Sentencing Commission created a grid of possible sentencing ranges and specified the conditions under which a defendant could fall within each category, based on offense and offender characteristics deemed apposite to pre-Guidelines sentencing determinations. The grid, comprised of nothing more than the mathematical average of sentences imposed by judges for particular offenses in pre-Guidelines jurisprudence, formed a "heartland" to govern all typical cases (i.e., cases that presented sentencing factors already considered by the Commission when adopting a given sentencing range). The "heartland" was not the product of substantive discussions in which the principles, purposes, and justifications of criminal punishment formed the basis for adoption of a particular sentencing norm for a particular offense. Nor was there any explication by the Commission as to the specific purposes being furthered by adoption of a particular sentencing norm, or, for that matter, how any of the delineated purposes of criminal punishment were finding expression through adoption of a particular sentencing norm for an individual criminal offense. The heartland exists merely as a codification of inconsistent pre-Guidelines sentencing decisions.

   The Sentencing Commission also limited judicial discretion by permitting departures from the Guidelines only in rare, atypical cases. Constrained by its inability to exercise even de minimis discretion, the judiciary resorted, with disastrous results, to circumventing the Guidelines in a significant percentage of cases. As a result, the Guidelines have resulted in the same incoherence, inconsistency, and lack of principle they were designed to correct.

   This Article proposes a remedy: the "heartland departure" paradigm, in which the purposes of criminal punishment are interlocked with the adoption of a particular sentence. To do so, this Article challenges three critical assumptions upon which the Guidelines ultimately rest. First, the Commission's assumption that drastically restricting judicial discretion would necessarily result in greater uniformity in sentencing failed to recognize that such measures encourage circumvention of the Guidelines. Second, the Commission's belief that the exercise of judicial discretion should be limited to the most atypical cases deprives the judiciary of the opportunity to participate in a substantive discourse about the purposes, principles, and doctrines that undergird sentencing policy. Finally, the Commission should have rejected its impulse to freeze sentencing norms at the time it issued the Guidelines and instead encouraged an evolutionary process of development in which the judiciary could collaborate with the Commission to create a principled, doctrinally-based sentencing model.

   The "heartland departure," therefore, reverses these critical assumptions upon which the Guidelines stand. It will permit district court judges to depart in both typical and atypical cases, as long as its departure decision is detailed in a written sentencing opinion explaining the specific purposes of criminal punishment that are being served by the alternative sentence and why the chosen sentence better furthers those objectives than the existing heartland sentence under the Guidelines. These opinions will provide both appellate courts and the Sentencing Commission with the substantive foundation to develop a common law of sentencing.

   Since uniformity in sentencing is an important objective in any sentencing model, judges will be severely restricted in the extent to which they may depart from the applicable heartland range. In this way, the Guidelines can enable courts to incorporate principle while maintaining substantially uniform treatment of similarly-situated offenders. The limits of judicial discretion are not therefore eliminated, but repositioned to permit an open, robust debate among the courts and Commission regarding sentencing policy. In essence, the "heartland departure" frees courts to surface the "hidden departures" that have been driven underground by the restrictive departure paradigm as part of a comprehensive discourse on sentencing or district court lawmaking.

   In addition, the Circuit Court of Appeals will similarly assume a "lawmaking function" through a two-tiered, de novo/abuse of discretion standard of review. Specifically, when a district court departs from the heartland in a typical case, the Circuit Courts of Appeal will hold de novo review over the district court's departure, enabling appellate courts to issue independent, principled, and purpose-driven sentencing opinions that assay the district court's opinions with reference to the purposes of criminal sentencing policy. Rather than acting merely as enforcers of the Guidelines' strictures, appellate courts will be called upon to exercise a "lawmaking function" aimed at deciding what purposes of criminal punishment are being served by a particular sentence, how those purpose are being furthered by a particular heartland departure, and whether the alternative sentence better expresses a principled basis for a particular offense than the existing heartland range. This process can be labeled "appellate lawmaking."

   Finally, armed with policy-driven sentencing opinions from the courts, the Commission will be better equipped to assess the legitimacy of the courts' heartland departures. The Commission could then revise or reformulate a particular heartland should it observe a substantive contribution to positive sentencing law from the judiciary. This will ultimately build a stronger, more-principled heartland than that created by mere mathematical averaging.

   The institutional partnership envisioned by this Article assumes that federal sentencing should be an evolutionary process, and one in which the judiciary exercises a critical role. Through the development of a common law of sentencing, this evolutionary heartland will emerge. In this way, guided discretion will ultimately be the vehicle by which meaningful uniformity can be realized.

   Part I details the policies and practices characteristic of pre-Guidelines jurisprudence and the resulting inequities. Part II examines the creation of the Federal Sentencing Guidelines, and Part III details the pernicious effects that have worked to undermine federal sentencing today and that prohibit a robust debate with respect to sentencing policy. Part IV introduces the "heartland departure," and proposes it as a mechanism to achieve, for the first time, a sentencing paradigm that rests upon a principled, purposeful foundation while simultaneously promoting fairness and uniformity in the treatment of criminal offenders.

1. FEDERAL SENTENCING PRIOR TO THE FEDERAL SENTENCING GUIDELINES

   Prior to the implementation of the Guidelines, federal criminal sentencing could best be characterized as lawless and purposeless. (2) It was largely governed by the subjective predilections of district court judges with "nearly unfettered authority"...