An Appellate Perspective on Federal Sentencing after Booker and Rita

Abstract

Federal sentencing is haunted by two sets of truths that, if not mutually exclusive, are at least difficult to reconcile.

One set of truths goes something like this: Individuals who commit crimes, like individuals who do not, are unique. They commit crimes for different reasons; they have different prospects for redeeming themselves or for doing it again; and prison time will affect people differently at different stages in their lives. Some crimes deserve more punishment than other crimes. And the effects of crime, whether on individual victims, communities or institutions, differ from crime to crime.

The other set of truths goes something like this: When it comes to federal criminal laws, the National Government is one sovereign and there thus ought to be some parity, from one federal courthouse to the next, in sentencing practices for violations of the same criminal laws by individuals with similar criminal records. “Equal Justice Under Law” are the first words that visitors see as they approach the entrance to the Supreme Court, yet there is nothing equal or just about permitting one judge to send an individual to prison for ten years while permitting another judge to give probation to a second individual who committed the same crime and who comes before the court with the same criminal record. Bitterness, not self-reflection, is bound to be the first, and may well be the lasting, sentiment of the hapless criminal sent to languish in jail with the unparolable ten-year sentence.

The question after United States v. Booker and Rita v. United States is where the next Hegelian turn will take us -- back to an individualized sentencing regime, back to a consistency regime governed by guidelines that are advisory in name but not in practice, or forward to a system that attempts to accommodate, however imperfectly, these competing goals. Only a fool would presume to know how this will play out -- because knowing requires not just a prediction of how the courts will respond to the decisions but also knowing how (and whether) Congress will respond to the courts. And perhaps only a fool should hope. But if an utterly indeterminate sentencing regime slights consistency and if an overly determinate sentencing regime slights individualized sentencing, it may be that Booker and Rita present an opportunity to thread the sentencing needle.

Keywords: federal courts, criminal law, sentencing, Booker, Rita