Kimbrough, Spears, and categorical rejection: the latest additions to the family of federal sentencing policy cases.

• Author: Vandergrift, Sophia A.

In the past three decades, the federal sentencing system has been in a state of flux. (1) At the core of the debate, and at issue in a great deal of modern cases, is how much discretion federal judges ought to have when sentencing defendants. (2) The amount of discretion committed to judges depends largely on how the United States Sentencing Guidelines ("Sentencing Guidelines" or "the Guidelines") are construed. In Spears v. United States, (3) the Supreme Court sought to clarify the role of the Sentencing Guidelines under the post-United States v. Booker (4) advisory sentencing scheme. Spears held that judges may categorically reject the Guidelines pertaining to powder-to-crack cocaine ratios. In the wake of this holding, significant questions about the role of the Sentencing Guidelines persist. Of particular importance are questions about when judges may categorically reject the Sentencing Guidelines outside of the crack cocaine context. (5)

In order to put the Supreme Court's recent federal sentencing decisions and the modern debate from which they stem in proper context, this Note will begin, in Part I, with a discussion of the history of federal sentencing, including the pre-Sentencing Guideline era and the origination of the Sentencing Guidelines. This section will also address the various criticisms the Sentencing Guidelines have attracted and how their role has evolved accordingly. Part II will analyze the Spears decision and the associated case law. Part III will examine the way federal district courts are currently construing Spears, with an eye for the meaningful constructive uncertainties such courts are grappling with and on which they are diverging. Finally, in Part IV, this Note will seek to suggest the most fruitful treatment of Spears, concluding that judges should practice categorical rejection only in limited circumstances and that sentencing opinions should accompany all instances of categorical rejection.

1. THE HISTORY OF FEDERAL SENTENCING POLICY

   1. Origin of the United States Sentencing Commission and the Birth of the Guidelines

      Congressional creation of the United States Sentencing Commission (6) ("the Commission") and the subsequent implementation of the Sentencing Guidelines (7) reflected a belief that federal sentencing was misaligned with national values. (8) By enacting the Guidelines, Congress sought to express modern national sentencing values and mandate their application in the federal courts. (9)

      The undesirable condition of federal sentencing preceding the 1980s prompted Congress to take action in the realm of federal sentencing. (10) At this juncture, the federal system was an "indeterminate sentencing regime," supplemented by the parole system. (11) Under this dual system, judges and parole officers alike made individualized assessments of a given offender's blameworthiness and potential for rehabilitation. (12) Such assessments, in all of their broad discretion, were practically invulnerable to appellate review because appellate courts pledged great deference to the sentencing judge's relatively superior familiarity with the facts in a given case. (13) Consequently, district court judges possessed nearly limitless discretion to sentence federal offenders, (14) with their unilateral sentencing judgments curtailed only by the occasional presence of an applicable statutory minimum or maximum. (15) These judges applied the lowest standard of proof known to the criminal justice system in sentencing hearings, and evidentiary safeguards were conspicuously absent. (16) As a result, similarly situated perpetrators received highly disparate sentences for the same or similar crimes. (17) These troubling inconsistencies turned out to be one of the fatal flaws of the indeterminate sentencing scheme; they were key factors prompting the passage of the Sentencing Reform Act of 1984 (SRA). (18)

      Congress passed the SRA as a component of the Comprehensive Crime Control Act. (19) In turn, the SRA created the Sentencing Commission to serve as an independent judicial agency (20) charged with the tasks of first promulgating and then providing oversight for the new system of federal Sentencing Guidelines. (21) The expectation was that the role played by the Commission, and the Guidelines they would promulgate, would together remedy the problems that had plagued the historically indeterminate sentencing regime. (22) Supporters hoped that the Commission might prove successful at this task by virtue of the fact that it was independent from the political process and could therefore review and contemplate sentencing from a dispassionate and autonomous vantage point. (23) Hope for the Commission's success was also pinned upon the fact that they would employ empirical data and expertise about sentencing that judges often lacked. (24)

      In 1987, the Commission issued the first version of the mandatory federal Sentencing Guidelines. (25) But significant legal obstacles followed on the heels of this acheivement, for suspicion about the legal legitimacy of the Guidelines was afoot from the time of their inception.

      In Mistretta v. United States, (26) the Supreme Court confronted its first opportunity to consider the constitutionality of the SRA and the Sentencing Guidelines. The petitioner contended that the SRA was an unconstitutional delegation of legislative power to another branch of government in violation of the constitutional principle of separation of powers and the related nondelegation doctrine. (27) Ultimately, the Supreme Court stood in support of the SRA, finding Congress's delegation of power through the SRA sufficiently specific and therefore within Congress's permissible ambit of delegation. (28) Fortified by the Court's rejection of the constitutional challenges to the SRA and the Commission, Congress enacted the Guidelines nationally in January of 1989. (29) Under the new Guidelines-based regime, federal sentencing was a transformed concept. The Guidelines shifted the power balance in sentencing, significantly scaling back judicial discretion. Furthermore, individual sentences became largely the product of mathematical calculations (30) devoid of the personal judgment and instinct that had characterized the old system. (31)

      The new power distribution was cemented by [section] 3553(b)(1) of the United States Code, which explicitly affirmed the mandatory quality of the Guidelines. (32) While the Guidelines allowed judges to grant downward departures (33) for a defendant's mere "substantial assistance" (34) or "an aggravating or mitigating circumstance ... of a kind, or to a degree, not adequately taken into consideration ... in formulating the Guidelines," (35) the appellate review provisions of the Guidelines discouraged judges from doing so. (36) The appellate review provisions permitted a dissatisfied prosecutor (37) to appeal a judge's application of the Guidelines, which often resulted in reversal of downward departures by the appellate courts (38)--something all judges seek to avoid.

   2. The Unique Institutional Role of the Guidelines

      From the time of their origin, the Guidelines were designed to, and did in fact, serve a unique institutional role. Because the Commission was intended to remedy the flaws in the previous sentencing regime and not just codify existing sentencing trends, it was apparent that it must adopt a different approach to sentencing than that previously employed by judges. (39) Hence, in its development of the Guidelines, the Commission used an empirical approach to sentencing, informed by data and past sentencing practices. (40) To ensure that the Guidelines maintain an empirical approach, the SRA required the Commission to conduct ongoing crime policy research, consult commentary from participants and experts in the field, and periodically adapt the Guidelines to reflect changing data. (41) The Commission also distinguished the new Guidelines by explicitly setting forth four purposes of sentencing: just punishment, deterrence, incapacitation, and rehabilitation. (42) The Guidelines were committed to implementing these purposes of sentencing in a dispassionate and reasoned fashion. (43) Accordingly, the unique empirical approach and the commitment to effectuating the various purposes of punishment allow the Guidelines to be characterized as having a distinct institutional role.

      All of the Guidelines promulgated by the Commission are intended to be a product of this distinct institutional role, but, unfortunately, some Guidelines are not. At times, the Commission has deviated from its intended role and implemented Guidelines that were influenced by social pressure, popular politics, or other nonempirical factors. (44) The 100:1 powder-to-crack cocaine drug quantity ratio established by Guideline 2D1.1 is one illustration of this problematic phenomenon. (45) Not only does this shirk the empirical approach, but it corrupts the principle that the identified purposes of punishment should be effected in a dispassionate way. (46)

   3. The 100:1 Powder-to-Crack Cocaine Ratio: A Guideline Enacted Outside of the Commission's Unique Institutional Role

      There is a broad consensus that in developing the Guidelines related to drug-trafficking offenses, the Commission acted outside the scope of its characteristic institutional role. (47) Instead of utilizing data about past sentencing practices and considering the purposes of punishment as intended, the Commission relied on the 1986 Anti-Drug Abuse Act's weight, or quantity-driven, scheme to promulgate the drug-trafficking Guidelines. (48) By relying exclusively on this scheme, the Commission neglected to accord the proper weight to empirical factors and the purposes of punishment.

      Borrowing from the Anti-Drug Abuse Act, the Commission implemented a 100:1 powder-to-crack cocaine ratio under which courts would sentence drug offenders. (49) Practically speaking, the adoption of this ratio meant that possession of one unit of...