The More Things Change: A Psychological Case Against Allowing the Federal Sentencing Guidelines to Stay the Same in Light of Gall, Kimbrough, and New Understandings of Reasonableness Review

Authors

Jelani Jefferson Exum, St. John's University School of LawFollow

Document Type

Article

Publication Title

Catholic University Law Review

Publication Date

2008

Volume

58

First Page

115

Abstract

(Excerpt)

In December 2007, through two decisions, the Supreme Court sought to clean up the confusion that it created just shy of three years earlier when it rendered the Federal Sentencing Guidelines advisory in United States v. Booker and called for circuit courts to begin reviewing sentences for "unreasonableness." In one of those December decisions, Gall v. United States, the Court clarified what it meant by reasonableness review and explained that such review had both a procedural and substantive component. In the other decision, Kimbrough v. United States, the Court gave more meaning to the substantive component, explaining that district courts were free to disagree with policies set forth in the Sentencing Guidelines, such as the disparate treatment of crack and powder cocaine offenses. What the Supreme Court neglected to do in these cases, however, was to reconcile the continued requirement that district courts calculate and consider the Sentencing Guidelines range in order to satisfy procedural reasonableness review with the limited substantive reasonableness review fashioned by Gall and Kimbrough combined. Now that sentencing judges have permission to consider systematic problems with the Guidelines as a basis for imposing a sentence outside of the Guidelines range, it has begun to look increasingly unnecessary to require that district courts calculate the Guidelines range in order to impose a reasonable sentence. Several scholars have criticized the Sentencing Guidelines, the courts' reluctance to let go of them, and the confusion created by reasonableness review. This Article does not seek to re-argue those positions; nor does the Article repeat claims that the Supreme Court's recent opinions do not solve the constitutional problem caused by mandatory guidelines. Rather, this Article examines the newly defined parameters of reasonableness review, discusses the psychology of sentencing decision-making, and reveals the folly of the continued requirement that district courts calculate the applicable Guidelines range before determining a reasonable sentence.

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Available at: https://scholarship.law.edu/lawreview/vol58/iss1/5/