For most of the last decade, I numbered myself among the supporters of the Federal Sentencing Guidelines and wrote extensively in their defense, while chronicling their defects. In the past year, I have reluctantly concluded that the federal sentencing guidelines system has failed. This Article explains the Guidelines' failure. The Sentencing Reform Act was intended to distribute the power to make sentencing policy and rules and to control individual sentencing outcomes among a range of national and local actors - the U.S. Sentencing Commission, Congress, the federal appellate courts, and the Department of Justice at the national level, and district courts, probation officers, U.S. Attorney's Offices, and defense counsel at the local level. Equally importantly, the Sentencing Commission was intended to gather feedback about how the system worked and serve as an authoritative (though not final) body of neutral experts who would translate the feedback into sensible revisions of the rules. This vision was never perfectly realized, but in recent years it has collapsed altogether. The Article explains how basic structural features of the SRA and the guidelines, in combination with a series of choices by the Commission, Congress, the judiciary, and the Department of Justice, have shifted the institutional balance of power. To an ever-increasing degree, the power to make and influence sentencing rules has migrated away from the judiciary, from the U.S. Sentencing Commission, and even from local federal prosecutors, toward political actors in Congress and the central administration of the Department of Justice. The resulting institutional imbalance has made the guidelines a one-way upward ratchet increasingly divorced from considerations of sound public policy and even from the commonsense judgments of frontline sentencing professionals who apply the rules. At the same time, control over sentencing outcomes in individual cases has moved disproportionately into the hands of the prosecution. The Article contends that the basic structure of the federal guidelines system is flawed in ways that frustrate efforts at incremental reform and that cannot be corrected without fundamental change. A careful analysis of the strengths and weaknesses of the federal sentencing guidelines experiment is particularly critical at this historical moment. The Blakely and Booker decisions, with their peculiar and shifting alignments of the liberal, conservative, and moderate pragmatist wings of the Court, cannot be fully understood without appreciating the background of rising discontent, particularly among federal judges, with recent developments in the federal sentencing system. In addition, it is not clear that the advisory guidelines called for by Booker will be so very different than the mandatory guidelines they replaced. Furthermore, if Congress concludes that Booker has altered the guidelines regime in such undesirable ways that remedial legislation is required, then a detailed analysis of the strengths and weaknesses of the guidelines is essential. If the pre-Booker guidelines system was fundamentally sound, then legislation should involve only minimal revisions sufficient to make the system pass constitutional muster. But if, as this Article contends, the guidelines are fundamentally flawed, the response to Booker should be fundamental reform.
Frank O. Bowman III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315 (2005)