Federal Sentencing's Big Week

For those of us who study federal sentencing, it has already been an extraordinary week. As I discussed in postings on Monday, the Supreme Court issued not just one, but two, new decisions on the scope of judicial sentencing discretion in the federal system. Then, late yesterday, the Sentencing Commission decided to give retroactive effect to recent amendments that reduce the severity of crack sentences. I am inclined to view the Commission's decision as more consequential than the Supreme Court's decisions. Not only does retroactivity mean that thousands of federal prisoners may see years shaved off their sentences, but the decision (coupled with the underlying crack amendments themselves) may mark an important turning point in the history of the Commission. Marvin Frankel, the father of the sentencing commission concept, intended such commissions to be independent bodies that would be insulated from the political pressures often surrounding policymaking in the area of crime and punishment. However, the United States Sentencing Commission has not exactly lived up to this vision, often seeming to be a creature of the Department of Justice. What may have weakened the Commission's institutional will and political standing more than anything else was its failed attempt to reduce crack sentences in 1995, which was shot down by Congress. That earlier history with crack sentencing lends added significance to the new retroactivity decision, in which the Commission actually rejected DOJ's position on a controversial matter that attracted considerable public attention. This may indicate a new level of intestinal fortitude by the Commissioners and a renewed commitment to play the sort of principled, independent role that Frankel envisioned.

As for the Supreme Court decisions, as I indicated in earlier posts here and on SCOTUS, the messages sent to the lower courts of appeals regarding judicial discretion were surprisingly equivocal. Although both decisions rejected particular constraints on discretion that had been adopted by most circuits, the Court also affirmed that the "advisory" sentencing guidelines have a special role to play at sentencing and cannot be wholly disregarded. Thus, appellate court practices, which have tended to treat sentences within the guidelines more generously than "variances," may not actually change much after Gall and Kimbrough. Moreover, given the low percentage of sentences that are appealed (particularly the variances), I have always been skeptical that the formal rules of appellate review matter a lot at the district court level. My sense is that most judges follow the guidelines in most cases, not because they have to, but because they are comfortable with the guidelines and appreciate having a seemingly objective analytical process to help them make difficult decisions in what are often emotionally charged cases. This is not to say that the endorsements of discretion in Gall and Kimbrough are wholly inconsequential--crack sentencing, in paricular, is likely to undergo real change as a result of the combined effects of the Commission and Supreme Court decisions--but it is to explain why I think that institutional leadership in federal sentencing reform is passing, and must pass, from the Supreme Court to the Sentencing Commission.