The King Is Dead, Long Live the King: Booker v. United States and Its Place in the History of Federal Sentencing Law and Policy Free

Abstract

Many of us thought, when the Supreme Court issued its decision in Booker v. United States,¹ that it would be the decisive turning point in what was then a twenty-year cold war over federal sentencing law and policy. We surmised that innovation would follow, for the decision made a fundamental change in federal sentencing law, policy, and practice that would surely require some systemic reexamination of—and then reform to—existing sentencing laws and guidelines. And we thought, and hoped, that with that reform, some of the most reasonable, thoughtful, and oft-repeated criticisms of the United States Sentencing Guidelines as a system would be addressed within a short time.

For others, though, Booker was the “fix.”² While they had been, for some years, among the most vocal critics of the Guidelines and strongest voices for reform, now these voices believed the Court’s decision would, in and of itself, bring about the desired changes in sentencing outcomes. They were as concerned, certainly, that any direct reforms by Congress or the U.S. Sentencing Commission at that time would likely only reinstate presumptive guidelines and, with it, much of what they believed harmful with federal sentencing.³

Justice Stephen Breyer, of course, famously said in the Booker remedial opinion, “Ours, of course, is not the last word: The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.”⁴ Breyer expected a reaction from policy makers. So did many of us. But Congress never did pick up that ball and act.⁵ And the commission never really did either, at least not to implement in the Guidelines the changes to sentencing law and policy made in Booker.

Perhaps Congress can be excused for its inaction. For most of the last twenty years, crime rates have been near generational lows, and crime was for years losing its salience as a political issue, beginning around the time Booker was decided.⁶ Whatever concerns were being expressed about unwarranted disparities in sentencing focused on the specific rather than the systemic, most notably, on federal cocaine sentencing policy and the 100-to-1 crack-to-powder quantity ratio.⁷

But the commission’s inaction is a bit more puzzling. Initially, a cautious approach may have been sensible, as voices in 2005 indeed called immediately and reflexively to reinstate presumptive guidelines.⁸ But over the next twenty years, neither the commission nor Congress ever pivoted in a significant way, once those voices had passed from the scene and more moderate ones replaced them. There was never a serious dialogue among the factions, and the commission never amended the Guidelines to reflect the change from a presumptive guideline system to an advisory one. And it never addressed the structural flaws in the Guidelines system that had been identified and spoken about by so many for so long.

Today, the Guidelines looks an awful lot like it did in January 2005, when Booker was decided, dictating sentencing outcomes within a narrow range based almost entirely on offense conduct. The Guidelines still tells courts to consider most offender characteristics only in extraordinary cases, when the law unambiguously states otherwise, mandating that offender characteristics be considered in every case.⁹Booker gave sentencing judges the freedom to follow their own path and their own policy determinations. And yet the commission never reflected its changed role, or those of the Guidelines, in the manual.¹⁰

Before Booker, federal sentencing was criticized for being overly complex, overly harsh, and overly reliant on such quantifiable offense factors as drug quantity and loss and for helping create a system of ever-growing plea bargaining and the “vanishing” jury trial.¹¹ Twenty years after Booker, the system is even more complex. It is still overly reliant on quantifiable factors. There are fewer jury trials today, not more, even though the Booker decision was expressly predicated on vindicating the Sixth Amendment jury trial right. The average federal sentence has increased since Booker. And there is more unwarranted disparity in sentencing among the districts and within districts, with some courts following the Guidelines regularly and others following it rarely.¹²

Was Booker the fix? It doesn’t appear to be so. With the twentieth anniversary of Booker and the fortieth anniversary of the Sentencing Reform Act both now upon us, the time is right for the Sentencing Commission to think again about Booker and about comprehensively addressing Booker in the Guidelines and, with it, many of the Guidelines’ long-standing structural flaws.

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Back in the mid-1980s, crime rates were high and rising, leading to much public concern and, with it, congressional action.¹³ That action, which became known as tough-on-crime policy, among other things raised criminal penalties and limited judicial sentencing discretion, which was seen then as being exercised in a disparate way and too favorably toward the guilty. It included the enactment of the Sentencing Reform Act of 1984¹⁴ and severe mandatory minimum sentencing statutes for certain drug trafficking, firearms, and, later, child exploitation offenders.¹⁵ The forces supporting long, determinate sentencing were firmly in control, both in Congress and in the executive branch. Democrats and Republicans supported most of these changes to federal sentencing policy. There was some resistance, but it wasn’t really much of a fight then.

In the coming years, the administrations of Ronald Reagan, George H. W. Bush, and Bill Clinton were all supportive of “strong” sentencing policy as a critical part of an overall federal crime control strategy. So was Congress. There were a few advocating moderation, including a newly formed nonprofit called Families Against Mandatory Minimums (later FAMM), created in 1991 by a great leader, Julie Stewart. The U.S. Sentencing Commission, too, advocated moderation at times. The commission, for example, issued a unanimous report in its early days condemning mandatory minimum sentencing statutes,¹⁶ and it even modified its sentencing guideline for drug offenses in the early 1990s to limit the most extraordinarily long sentences.¹⁷

Those glimpses of moderation also manifested during the Clinton administration in a few important provisions of the now mostly discredited 1994 Crime Bill. Those provisions created the so-called safety valve exception to the application of drug mandatory minimum sentencing statutes and replaced proposed new mandatory minimums with directives to the commission.¹⁸ There was also the Reno Bluesheet, named after Attorney General Janet Reno, that installed a new charging policy at the Justice Department, requiring a more complete examination of a case rather than simply charging the most serious, readily proven offenses.¹⁹

But there was little doubt where federal sentencing policy was heading in those days and the policy perspectives that were in command. Retributive justice and a tariff-based system of sentencing guidelines—where the crime and its harms are translated by formula to presumptive sentencing ranges—were the order of the day. Offender characteristics were largely left out of federal sentencing decisions, sentences were generally severe, and the federal prison population was growing, and growing quickly. Trials were slowly decreasing in number, and the Guidelines were becoming more complex as “factor creep” played out over time.²⁰ When the commission voted in 1995 to lower penalties for crack cocaine offenses following the issuance of a well-received report identifying gross unwarranted sentencing disparities in the treatment of cocaine offenses, the new Republican congressional majority, led by the new Speaker of the House, Newt Gingrich, and the new Michigan Senator, Spencer Abraham, quickly enacted legislation to overturn the commission’s action.²¹ And President Clinton signed it into law.

But despite all this, by the late 1990s the forces of change were organizing and growing. As important, crime rates were falling, and the political imperative to increase penalties was slowly, if not completely, fading.²² That political imperative would reappear now and then, but only in limited pockets, for example, as the Internet emerged and a new platform for distributing child sexual abuse material was created.²³ But the tide was changing. And it was helped along immensely by the Supreme Court. In the 1996 Koons v. United States decision, the Court, in an opinion by Justice Anthony Kennedy, held that while the Sentencing Reform Act intended to guide sentencing courts, the Act manifested “an intent that district courts retain much of their traditional sentencing discretion.”²⁴ “We agree that Congress was concerned about sentencing disparities, but we are just as convinced that Congress did not intend, by establishing limited appellate review, to vest appellate courts wide-ranging authority over district court sentencing decisions.”²⁵ The Supreme Court gave greater latitude to district courts to depart from the otherwise applicable sentencing guideline range. “A district court’s decision to depart from the Guidelines, by contrast, will in most cases be due substantial deference, for it embodies traditional exercise of discretion by sentencing courts.”²⁶ The Court reversed the decision of the Ninth Circuit Court of Appeals that had, along with other circuits, reviewed de novo, and quite closely, decisions by district courts to depart from the Guidelines. Justice Kennedy summed up the view of the Court this way:

For some, these were fighting words. They would lead directly to a measurably greater use of downward departures by district judges. And they would later lead to blowback from Congress and from the Department of Justice.

In the years following the decision in Koons, the rate of nonsubstantial downward departures doubled, albeit from a small base, reflecting the greater discretion brought on by the holding.²⁸ For several years, the Department of Justice reacted by asking the commission to limit the grounds for departure as new ones were identified by district courts or as the use of existing ones increased.²⁹ It didn’t stem the tide, and by the turn of the twenty-first century, the cold war around federal sentencing was getting warm. In 2000, in the midst of a heated presidential election campaign, the Senate Judiciary Committee held an oversight hearing of the U.S. Sentencing Commission, in large part to voice its discontent with the growing trend of nonguideline sentences.³⁰ Senator Strom Thurmond summed up the view of many on the committee:

After President George W. Bush was elected a few months later, his justice department would increase the frequency and volume of its complaints about below-guideline sentences. For example, in 2002 U.S. Attorney James Comey of the Southern District of New York testified before the Senate Judiciary Subcommittee on Crime and Drugs that “the pattern now seems clear that federal judges are using downward departures frequently, in some cases nearly routinely, as a way of getting around the prescribed Guideline sentences.”³² Comey made clear that “this Administration is very concerned about the type and increasing number of non-substantial assistance downward departures.”³³

These concerns in Congress and at the Department of Justice led directly to the enactment of the PROTECT Act of 2003 and the so-called Feeney Amendment.³⁴ The goal of the Feeney Amendment was as clear as the swiftness of its passage: to reduce judicial sentencing discretion and ensure guideline sentences in the vast majority of cases. The changes in law were multifaceted, but the impact was simple: making it more difficult for defendants to obtain downward departures and easier for the Department of Justice to challenge downward departures on appeal.

For the Bush administration and the voices of determinate sentencing and limited judicial discretion, this was an enormous victory, and they boasted publicly about it and of the connection between “strong” sentencing and increases in public safety being experienced around the country. For example, in November 2004 Assistant Attorney General Christopher Wray testified before the U.S. Sentencing Commission that the ten-year crime decline experienced at that time was directly attributable to the 1984 sentencing reform and the “strong” sentencing policy it brought into being.³⁵ “Among the principal reasons that the United States is experiencing such low crime rates today are the effects of tougher determinate sentences and the elimination of parole that the 1984 federal sentencing reforms reflect and that many states have also adopted.”³⁶

By the time Wray testified before the commission, though, the Supreme Court had already decided Blakely v. Washington, invalidating parts of the Washington state sentencing guidelines and casting doubt on the procedures used in other states and in federal sentencing.³⁷ And Booker had already been argued by then-Acting Solicitor General Paul Clement. The die certainly seemed to have been cast.

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When the Booker decision was handed down, the reaction of the tough-on-crime sentencing advocates was swift and robust. Congressman Tom Feeney, the author of the Feeney Amendment, said that the Court’s decision was an “egregious overreach” and said that it “flies in the face of the clear will of Congress.”³⁸ The House Judiciary Committee called a hearing almost immediately and held it less than a month after the decision was handed down. There, Daniel Collins, a former associate deputy attorney general and a driving force behind the PROTECT Act, captured the view of the decision’s critics well: “By declaring the U.S. sentencing guidelines to be merely advisory, the United States Supreme Court’s decision in Booker effectively demolishes in one stroke the entire edifice of Federal sentencing reform that had been carefully built over the course of the last 20 years.”³⁹

“Booker fix” legislation was quickly drafted and circulated. Some, with rather colorful names (e.g., “topless guidelines”), tried to work around the constitutional particulars of the Booker opinion.⁴⁰ Others were simpler and more straightforward, proposing new mandatory minimum sentencing statutes.

The forces that for years had been calling for change, moderation, and reform were now resisting change. They supported greater judicial discretion and more modest sentencing outcomes, and they took an understandably defensive stance following the Court’s decision. The Judicial Conference, the defense bar, many advocacy groups, and the Sentencing Commission all advocated a “go-slow” approach.⁴¹ “Wait and see” was one of their tag lines. Congressman Bobby Scott, then the ranking member on the House Judiciary Crime Subcommittee, encapsulated the views of this side of the debate with a different tag line: “Booker is the fix.”⁴² And the position carried the day. No “Booker fix” legislation made any significant headway toward enactment, and the commission was content to gather and report data on how Booker was being implemented in the courts.

In the context of this history, perhaps it is no wonder that here we are, twenty years later, with roughly the same constitutional framework the Court created in Booker and the same Guidelines framework the commission created in 1987. The forces of discretion and moderation never pivoted to reform, in large part out of fear that the advocates of the immediate post-Booker period and their desire for presumptive guidelines and longer sentences would ultimately prevail in the political branches. There were many new and more moderate sentencing voices on the scene, but little serious dialogue took place among the factions. When Judge William Pryor in 2016 gave a talk to the American Law Institute advocating a simpler and presumptive set of guidelines, for example—“Today I want to propose a solution both to the original problems created by the mandatory guidelines and to the new problems created by Booker”—the same opposition to reform mobilized again.⁴³ Few saw Pryor as a moderate sentencing voice or his proposal as an opportunity to develop a coalition to address fundamental structural flaws of the original Guidelines by adjusting them for the post-Booker era.

Were they right to take that stance? Was Booker indeed the fix? Did Booker, on its own, solve the problems that Congressman Scott and so many of the critics of the Guidelines voiced, including the vanishing trial, sentencing severity, complexity, overreliance on quantifiable factors, and increased litigation? Did Booker lead to more moderate sentencing outcomes and a better sentencing policy, one we should be satisfied with today?

The answers to these questions will require much further study beyond what’s possible here, and I hope the commission will undertake to answer them more fully in the months ahead. This guideline amendment year encompasses the fortieth anniversary of the Sentencing Reform Act and the twentieth anniversary of Booker. It is certainly time for a thorough reevaluation.

For now, though, the U.S. Sentencing Commission’s data and research suggest that we should not be content, that the answers to all the questions above are no. Here are some data points to consider around these questions:

Trials: Justice Stevens made clear in his Booker majority opinion the principles the Court was trying to vindicate in the case.⁴⁴ “The Framers of the Constitution understood the threat of ‘judicial despotism’ that could arise from ‘arbitrary punishments upon arbitrary convictions’ without the benefit of a jury in criminal cases.”⁴⁵ The foundation of the decision was that juries were being wrongfully cut out of the process.

The data show that juries are playing a lesser role now than they were pre-Booker. In FY 2003, the last full fiscal year before the Supreme Court’s decision in Blakely v. Washington and the year arguably best for comparison, 95.7 percent of sentenced federal defendants resolved their case through a guilty plea (2,996 trials were reported by the commission).⁴⁶ All those who pled guilty were sentenced without the benefit of jury involvement. In 2023, 97.2 percent of sentenced federal defendants resolved their cases through a guilty plea; even more (1,824 trials were reported, a 39 percent reduction from 2003).⁴⁷ So, fewer trials post-Booker. And it’s fair to surmise that, in an advisory sentencing system, the risk and incidence of “arbitrary punishments” have risen, not fallen.

Sentence length: From the earliest days of sentencing reform, criticism of federal sentencing has focused on its severity. At least one measure of severity suggests that it has increased post-Booker. For FY 2003 the commission reported that the average federal sentence for all cases was 47.9 months imprisonment.⁴⁸ In FY 2023, it was 52 months imprisonment.⁴⁹

Since Booker there have certainly been changes in the kinds of cases prosecuted in the federal system, changes that impact the average sentence imposed. For FY 2003 the commission reported that 69,680 were sentenced in federal courts for felonies and Class A misdemeanors.⁵⁰ Of those, 38.1 percent were sentenced for drug offenses, 21.6 percent for immigration offenses, and 17 percent for fraud and theft offenses.⁵¹ In FY 2023, 64,124 were sentenced in federal courts for felonies and Class A misdemeanors.⁵² Of those, 29.9 percent were sentenced for drug offenses, 30.0 percent for immigration offenses, and 8.1 percent for fraud and theft offenses.⁵³ Comparing average sentences by certain crime types, in FY 2003 the average sentence for drug trafficking offenders was 76.9 months imprisonment.⁵⁴ In FY 2023 it was 82 months.⁵⁵ In FY 2003, the average sentence for fraud offenders was 14.4 months.⁵⁶ In 2023, it was 22 months.⁵⁷

Disparity: In 2010, the Department of Justice’s annual report to the commission noted that, post-Booker, “federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes. On the one hand, there is the federal sentencing regime that remains closely tied to the sentencing guidelines. … On the other hand, there is a second regime that has largely lost its moorings to the sentencing guidelines.”⁵⁸ The available data suggests this is even more so today.

The commission itself has studied inter- and intradistrict sentencing disparities, and its findings are unambiguous. On interdistrict disparities, the commission said that “variations in sentencing practices across districts increased in the wake of the Supreme Court’s 2005 decision in Booker. These inter-district sentencing differences have persisted in the 13 years after Booker and six years after the Commission’s 2012 analysis.”⁵⁹

On intradistrict disparities, the commission’s “current analysis measured judges’ average percent differences from the guideline minimums in their cases in relation to their city’s average during three periods between 2005 and 2017. It demonstrated a clear increase in the extent of differences in sentencing practices in a majority of the cities studied following the Supreme Court’s 2005 decision in Booker and continuing after the Court’s 2007 decisions in Gall and Kimbrough.”⁶⁰

A glance at the percentages of cases sentenced within the Guidelines by district further shows the increased post-Booker disparities. For example, overall, in FY 2023 only 42.4 percent of cases were sentenced within the guideline range,⁶¹ while in FY 2003 69.4 percent were sentenced within the range.⁶² This is not surprising, given the post-Booker requirement that offender characteristics be considered in every case and the lack of guideline reform implementing it. But the change in nonguideline sentences has not been consistent across districts or across judges, and the numbers suggest growing disparities.

For example, the highest rate of within-guideline sentences in FY 2003 was in the First Circuit, where 77.3 percent of cases were sentenced within the range. The lowest rate that year was in the Ninth Circuit, where 59.6 percent of cases were sentenced within the range.⁶³ This resulted in a difference between the highest and the lowest rates of 17.7 percentage points. In FY 2023, by contrast, the highest rate of within-guideline sentences was in the Fifth Circuit, where 63.9 percent of cases were sentenced within the range, while the lowest rate that year was in the Ninth Circuit, where 22.5 percent of cases were sentenced within the range.⁶⁴ This was a difference of 41.4 percentage points. Examination of other circuit and district data similarly show expanding disparities.

Complexity: The post-Booker federal sentencing system has grown in complexity. The pre-Booker guideline calculations remain part of the sentencing process and with them the pre-Booker complexity. But now there is a new step added to the sentencing process, a freeform determination based on the factors listed in 18 U.S.C. § 3553(a). Appeals are now available not just for outside-the-guideline cases, as they were pre-Booker, but for all cases. The Guidelines and its list of aggravating and mitigating factors has continued to grow—“factor creep”—including, for example, a new seventh criminal history category added in 2023 (because six weren’t good enough in an advisory system), with ten exclusions for the seventh category, each subject to interpretation and litigation.⁶⁵ There is the unnecessary categorical approach within the now-advisory Guidelines, and an increasing number of second looks at otherwise final sentences, through compassionate release and retroactive application of guideline amendments.

Innovation: While the basic framework of federal sentencing has been unchanged since Booker, it is important not to overlook some significant changes and innovations that have taken place, albeit almost entirely unrelated to Booker. In 2007, the commission reduced the guidelines applicable for crack offenses and later, in 2014, for all drug offenses.⁶⁶ However, as stated above, the average drug sentence has not gone down. In FY 2003 the average sentence for drug trafficking was 76.9 months imprisonment, while in FY 2023 it was 82 months.⁶⁷ Much of that increase is certainly due to the changing mix of drug cases in the federal docket, with more methamphetamine and fentanyl cases and fewer marijuana and cocaine cases now compared to twenty years ago.⁶⁸

There was also the enactment of the Fair Sentencing Act,⁶⁹ President Barack Obama’s clemency initiative led by Acting Pardon Attorney Robert Zauzmer and Deputy Attorney Generals James Cole and Sally Yates, and changes to compassionate release and the criminal history score.⁷⁰ All of these are important changes, but all are independent of Booker, and none address the systemic changes brought on by Booker or the systemic issues at the heart of the now almost forty-year critique of the Federal Guidelines system.

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So, is it time for guideline reform that incorporates Booker in the Federal Sentencing Guidelines? Last year, under the heading “Simplification,” the commission seriously looked at eliminating departures from the Guidelines.⁷¹ This was considered, in part, to address the anomaly that sentencing courts are required, post-Booker, to consider offender factors in every sentencing, while the Guidelines suggests that most offender factors should be considered only in extraordinary cases.⁷²

This was an important first step in thinking about how to incorporate Booker into the Guidelines, and the commission should certainly consider it further. But it should, at the same time, consider all the aspects of Booker as it looks at reform. This is the way to politically viable systemic reform.

The commission should fully research the issues of severity, disparity, complexity, and guilty pleas discussed above. It should consider whether there is still a need for the complex guideline formulas of the current Guidelines Manual when, post-Booker, judges are required to undertake the freeform step. It should consider whether the Guidelines should try to nudge judges in how it exercises both the Guidelines part of the sentencing process and the third step of sentencing—perhaps using a very different guideline framework—or whether the commission has no role to play in the third step. It should consider alternative structures to simultaneously reduce unwarranted disparities. And depending on its findings, the commission should then propose a comprehensive reform—rather than a series of partial reforms over several years that will just frustrate many practitioners (including judges and probation officers)—that can guide sentencing decisions over the next twenty years and beyond.

The possibility for creating a political coalition—including a unanimous commission—for such comprehensive reform is real. It comes from the promise of less litigation for some and more modest sentences for others, identifying the most violent offenders for some and reform of relevant conduct for others. There are ways to craft a better system for guidelines and a coalition to enact it. In this year of anniversaries, the time is right to have this on the U.S. Sentencing Commission’s agenda.

Notes