Another Sentencing Win for Breyer

I have had a bit more time to digest the Supreme Court's new sentencing decisions. I have posted some thoughts on Gall at SCOTUS, and will concentrate here on Kimbrough. (I should note that Mark Osler has some interesting things to say about the case here. And, of course, Doug Berman's blog remains an essential place to visit for commentary on any sentencing news.)

A common way to tell the story of the Supreme Court's sentencing jurisprudence from the 2000 Apprendi decision to the present is to focus on Justice Breyer's efforts to preserve a central policymaking role for the United States Sentencing Commission, of which he was an architect and an original member, in a world of increasingly robust procedural rights at sentencing, which threaten the practical workability of the Commission's sentencing guidelines. Though he has been fighting a rearguard action, Breyer's efforts have been remarkably successful. While the Court's 2005 Booker decision nominally converted the guidelines from "mandatory" to "advisory," the lower courts of appeals quickly interpreted the new system such that a thumb was effectively placed on the scales of the guidelines sentence: a within-range sentence would be accorded a presumption of reasonableness on appellate review, while a "variance" from the guidelines would be subject to more searching review. The Supreme Court's decision last term in Rita lent clear support to the former practice, while the Court's decision today in Gall offers at least implicit support for the latter. But Kimbrough may actually provide the clearest illustration of the influence of Breyer's pro-Commission views.

In Kimbrough , the district court chose not to follow the guidelines applicable to crack offenses, which result in considerably harsher sentences than the guidelines for powder cocaine offenses. The court relied in part on the Sentencing Commission's own findings in a series of reports since 1995 that the crack-powder disparity is unjustifiable from a policy standpoint. (The Commission, in fact, attempted to eliminate the disparity in '95, but was overridden by Congress. Since then, Congress has largely ignored the Commission's persistent recommendations to modify crack sentencing by statute.) The Fourth Circuit, however, reversed on the ground that the district court judge had assumed a policymaking role that was reserved for Congress and the Commission. The Supreme Court rejected the Fourth Circuit's reasoning and held that a sentencing judge may properly take into account his or her disagreement with policies embodied in the guidelines.

So far, sounds like a big loss for Breyer's Commission, right? Not so fast. Reading the opinion carefully, I can't escape the impression that the key fact in the case was not that the sentencing judge had good reasons for disagreeing with the guidelines, but that the judge's views happened to coincide with those of the Commission itself. The Court indicated that it would generally draw a distinction between variances based on case-specific facts that take a case outside the "heartland" (which must be given great deference) and variances based on policy disagreements (which must be given less)--indeed, it was apparently to take issue with this distinction that Justice Scalia concurred. However, crack merits special treatment, the Court held, because the crack-powder disparity did not emerge from the Commission's "exercise [of] its characteristic institutional role" (i.e., the development of guidelines through "empirical data and national experience"). Rather, the crack disparity entered the guidelines in response to a statute--a statute whose premises turned out to be mistaken. In other words, the Commission's policy judgments must be given greater deference when based on its own research and analysis than when based on a response to a congressional policy decision. This seems a remarkable elevation of the Commission's policymaking role over Congress's. This impression is reinforced by the Court's reliance on a series of Commission reports whose conclusions were never embodied in successful amendments to the guidelines until well after Kimbrough's sentencing, while at the same time giving short shrift to plausible arguments as to implicit congressional intent. When it comes to Congress, text trumps policy preference; when it comes to the Commission, policy preference trumps text.

Justice Scalia once castigated the Sentencing Commission as a "junior varsity legislature." Junior?

I should add that I am perfectly happy with the result in Kimbrough. I would have preferred, though, if the Court had gotten there without relying so much on the mythology (also central to Rita) that the Commission has (in general) developed the guidelines through some sort of scientific process that carefully balances all of the purposes of sentencing in ways far beyond the abilities of the judiciary.