Deconstruction and Reconstruction of the Sentencing Guidelines: Part 1

November 19, 2013
By Hanging Out with Carl Gunn



  • Supreme Court case law has recognized that the Sentencing Commission is supposed to be an entity that can conduct empirical studies of sentencing and the guidelines are supposed to reflect that empirical study.
  • Multiple Supreme Court cases recognize the possibility – and the actual fact – that some guidelines don’t fit this purpose.
  • Supreme Court cases therefore recognize that courts may choose not to follow a guideline, especially a guideline not based on empirical study or data, based simply on a policy disagreement with the guideline.



Another passing comment I made in my post on the Cortessentencing entrapment Apprendi case last month (see “If I Wasn’t Completely Entrapped, I Was Entrapped At Least This Much,” in the links at the right) was a suggestion about basing a sentencing argument on the point made in Kimbrough v. United States, 552 U.S. 85 (2007) that the Sentencing Commission formulated the most serious drug guidelines by “look[ing] to the mandatory minimum sentences set in the [statutes], and did not take account of empirical data and national experience,”id. at 109 (internal quotation omitted). This brings to mind a topic I’ve been thinking about blogging on for some time – what our Federal Public Defender Sentencing Resource Counsel call “deconstruction” of the guidelines. I like to think of the scene in the Wizard of Oz where the curtain gets pulled back and you see a tiny, little man instead of a great wizard, see here or the children’s story, “The Emperor with New Clothes,” where the child points out the emperor actually doesn’t have any clothes at all on, see here.

This “deconstruction” approach finds its genesis in whatKimbrough recognized about what the role of the Sentencing Commission is supposed to be – namely, “an important institutional role” of “ha[ving] the capacity courts lack to ‘base its determinations on empirical data and national expertise, guided by a professional staff with appropriate expertise,’”Kimbrough, 552 U.S. at 109 (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring)) – and what Kimbrough’s companion case, Gall v. United States, 552 U.S. 38 (2007), recognized the guidelines are supposed to be – namely, “the product of careful study based on empirical evidence derived from the review of thousands of individual sentencing decisions,” Gall, 552 U.S. at 46. The premise of the “deconstruction” approach is that all too often the guidelines don’t reflect this Sentencing Commission role and these guidelines purposes. That – and what to do about it – is what my next few posts will be about.

But before getting to the Sentencing Commission’s failure to do what it was supposed to do, let me highlight the Supreme Court’s – now repeated – recognition that courts do have the power to do something about it. First, there was Rita v. United States, 551 U.S. 338 (2007). The issue actually presented and decided there was the appropriate standard of appellate review of a sentence. But the Court offered some hints that a defendant could attack the very wisdom of the guideline being applied. The Court suggested a judge may hear arguments that “the Guidelines sentence itself fails properly to reflect § 3553(a) considerations.” Id. at 351. It further suggested that parties may argue that guidelines “reflect an unsound judgment.” Id. at 357.

Then came more express statements in Kimbrough and Gall. The Court in Gall, after noting that the guidelines are in theory based on research and “empirical evidence,” id., 552 U.S. at 46, added in a footnote that “[n]otably, not all of the Guidelines are tied to this empirical evidence,” id. at 46 n.2. It then expressly held inKimbrough that “courts may vary [from Guideline ranges] based solely on policy considerations, including disagreements with the Guidelines.” Id., 552 U.S. at 101. It further held in Kimbroughthat the specific guideline in that case – the infamous crack guideline – “did not take account of ‘empirical data and national experience,’” id. (quoting Pruitt, 502 F.3d at 1171 (McConnell, J., concurring)), and that it was not an abuse of discretion to conclude that such a guideline “yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case,” id. at 109-10.

The Court next added a per curiam decision in Spears v. United States, 555 U.S. 261 (2009) (per curiam), in which it made clear that it meant what it said in Kimbrough. It explained that “the point of Kimbrough [was] a recognition of district courts’ authority to vary from the crack cocaine Guidelines based onpolicy disagreement with them, and not simply based on an individualized determination.” Spears, 555 U.S. at 264 (emphasis in original).

Finally, the Court reiterated in Pepper v. United States, 131 S. Ct. 1229 (2011) that “our post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views.” Id. at 1247. It then added – in a dig at the Sentencing Commission that I particularly love – “[t]hat is particularly true where, as here, the Commission’s views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted.” Id. Or, as I like to put it: “It’s a stupid guideline.”

This seems like a good stopping point in this series for today, so I’ll stop here. Next week: the empirical evidence the Commission supposedly based the guidelines on and what it overlooked.