Supporting Advisory Guidelines
by JUDGE NANCY GERTNER
At first glance, advisory sentencing guidelines may seem wholly unrelated to the problem with which this Issue is concerned—the unprecedented and failed experiment in mass incarceration. But the link is stronger than one might expect. While there have always been some mandatory minimum federal sentencing statutes, by the 1980s, the number of such sentencing statutes and their severity exploded, fueled largely by popular pressure to “get tough on crime” and a chorus of criticism about judges. The Federal Sentencing Guidelines—promulgated to create a more rational punishment system in the face of political pressure to increase sentences arbitrarily— exacerbated the problem. Because Guideline sentences were built on top of the mandatory minimum sentences, and because they implemented only two of the purposes of sentencing, retribution and incapacitation, they only drove sentence lengths ever higher. The aim of minimizing judicial disparity in sentencing ensured that whatever their label, the “guidelines” would be mandatory.
When the United States Supreme Court held mandatory guidelines unconstitutional in United States v. Booker1, it arguably paved the way for a different kind of sentencing regime, one that would put the brakes on mass incarceration and allow for more rational sentences. These improvements would occur not merely because advisory guidelines allow for more discretion; more judicial discretion does not necessarily mean that a sentencing system will be more rational, nor more just. What makes a better sentencing system possible is precisely the mix of discretion and structure that the intersection of Booker on the one hand and a two-decade-long system of guideline sentencing on the other, has produced. The post-Booker system is a hybrid, integrating the framework of the existing and still powerful Federal Sentencing Guidelines with the judicial discretion to hand down individualized and proportional sentences. Federal sentencing now reflects more than the exclusive concern for the rote avoidance of disparity in sentencing, and instead includes meaningful consideration of other sentencing purposes, like rehabilitation and minimization of recidivism. The result is not only a system that is more just, but one that is more likely to promote public safety.
