Federal Sentencing after Booker

Abstract

The Supreme Court decision in United States v. Booker seemed to portend a new era for federal sentencing. By making federal guidelines advisory rather than “mandatory,” and authorizing judges to critically review their development, Booker empowered judges to reject unsound guidelines. Booker has had, however, surprisingly little effect on sentence severity or imprisonment use. Sentencing below guideline ranges increased, but more from a general relaxation of guidelines’ restrictions than from reasoned rejection of unsound guidelines. They continue to exert gravitational pull. Inter-judge disparity, modestly reduced by the earlier guidelines, increased after Booker. The commission claims that racial disparities increased, but the evidence is mixed and controversial. Bias in judges’ decisions contributes less to racial disparity than do statutes and guidelines that disproportionately affect African Americans. Booker has the potential to reduce structural disparities caused by unsound guidelines. The federal system remains unbalanced, however, with control of sentencing concentrated largely in the hands of Congress and prosecutors rather than of the commission and judges. Only repeal of statutory mandatory minimums and many specific statutory directives to the commission will permit federal sentencing reform to work as intended.