This is the third in a series of articles analyzing the current turmoil in federal criminal sentencing and offering suggestions for improvements in the federal sentencing system. The first article, "The Failure of the Federal Sentencing Guidelines: A Structural Analysis," 105 COLUMBIA L. REV. 1315 (2005), analyzed the structural failures of the complex federal sentencing guidelines system, particularly those arising from imbalances among the primary institutional sentencing actors - Congress, the judiciary, the Justice Department, and the U.S. Sentencing Commission. The second, "Beyond BandAids: A Proposal for Reconfiguring Federal Sentencing After Booker," 2005 U. OF CHICAGO LEGAL FORUM 149 (2005), proposed a simplified guidelines system designed to address the structural flaws common to both the pre- and post-Booker federal sentencing regime in a manner consistent with the Supreme Court's developing Sixth Amendment jury trial jurisprudence. However, neither a failure analysis nor a blueprint for a revised system is of practical value unless the institutions in control of federal sentencing can interact in ways that will permit reform. Consequently, this third Article considers the politics and political science of federal sentencing reform. The Article describes the current state of federal sentencing in terms of the interactions of Congress, the judiciary, the Department of Justice, and the United States Sentencing Commission, with particular attention to the effect of the Supreme Court's decision in United States v. Booker declaring the Federal Sentencing Guidelines unconstitutional. The Article observes that Booker has changed the federal guidelines system relatively little, and that a powerful alliance of the Justice Department and Congress favors maintenance of a sentencing system as much like the pre-Booker guidelines regime as possible, to the enduring disadvantage of the judiciary and the Sentencing Commission. The Article concludes that an improved federal sentencing system is politically possible, but only if a series of relatively low-probability events converge. First, either Congress or the Justice Department must come to see the current complex guideline system as no longer in its interest. A break-up of the Congress-DOJ alliance could be precipitated if the Supreme Court were to: (1) overturn Harris v. United States, 536 U.S. 545 (2002), which held that post-conviction judicial findings of fact can generate enforceable minimum sentences, and (2) give judicial sentencing discretion constitutional stature by expressly defining the boundary between a constitutional and unconstitutional guidelines system in terms of the degree of discretion granted judges to depart from it (a result implied but not made explicit in Booker). In combination, these two constitutional developments could render the current post-Booker regime and the simplest legislative modifications of it unpalatable to Congress and the Justice Department. Constitutionalizing a minimum level of judicial departure authority for guidelines systems based on judicial findings of fact would render such systems undesirable to DOJ and Congress by conferring what they would see as too much discretion on judges. The reversal of Harris would render the Justice Department's preferred legislative alternative to the post-Booker advisory regime (making the bottom of current guideline ranges mandatory) unattractive because, absent Harris, facts generating legally enforceable minimum sentences would have to be determined by juries and the current guidelines are too complex to make this course desirable. Under these circumstances, a simplified system might hold great appeal for the Justice Department. Second, the Sentencing Commission must be convinced that the complexity and rigidity of the structure it created have led to the dominance of sentencing policy by the Justice Department and Congress and concomitantly to the Commission's own increasing marginalization. And the Commission must act on that conviction by employing its expertise to draft and promote a simpler, more flexible, system. Third, because desirable modifications of the present federal sentencing system would inevitably lead to at least some reductions in some federal sentences, the transformation to a simpler and more flexible system probably cannot be accomplished without a shift in the perception that longer, tougher sentences are always a political good. The Article suggests that a nascent coalition of interest groups from across the political spectrum might be capable of altering this perception.
Frank O. Bowman III, Mr. Madison Meets A Time Machine: The Political Science of Federal Sentencing Reform, 58 Stan. L. Rev. 235 (2005)