Since United States v. Booker, the main task of sentencing academics and appellate judges has been to solve the riddles of its mandated “reasonableness” review. This is a crucial task because the answers reached will largely determine whether Booker’s promise of fresh discretion in federal sentencing becomes a dead letter in the district courts, or whether the federal judiciary once again assumes its role at the head of our pursuit of justice in sentencing.

Of the many questions posed by Booker’s unmaking of the mandatory system, two stand out for the amount of academic and judicial attention they have received: First, what makes a sentence “reasonable” for purposes of appellate sentencing review? Second, what kind of deference is due to the judgments of sentencing judges who stick to the old, now-advisory U.S. Sentencing Guidelines? A year of Booker review has yielded few answers on the first front—with circuit courts hesitant to destroy old paradigms or dive into new ones, the criteria for reasonableness have remained elusive to say the least. We find no such indecision, however, when it comes to the status of within-Guideline sentences.

In the eighteen months since Booker, almost every circuit has come to apply some kind of presumption of reasonableness to within-Guideline sentences. Some circuits, like the Seventh, have explicitly endorsed such a presumption, while others, like the First, have nominally rejected it. Yet in practice, one can comb through mountains of case law from any circuit before finding a within-Guideline sentence reversed as unreasonable. Is this de facto deference to the Guidelines a logical outgrowth of the advisory system, or a signal that old habits not only die hard, but can survive Supreme Court assassination attempts as well? Because too-strong presumptions of the wrong kind might create a system dangerously close to the mandatory one held unconstitutional in Booker, it certainly behooves us to inquire whether the emerging presumption of reasonableness is, well, reasonable or not.

That said, the presumption of reasonableness for within-Guideline sentences is not really that important, and does not merit all the attention that a blustering sentencing academy has heaped upon it. If a sentencing judge believes that the Guidelines recommend a good sentence in a particular case, and she makes clear in her opinion that she understands herself to be free to look beyond the Guidelines to the other factors that Congress enumerated in its sentencing statute, then one struggles to see the harm in allowing her to take the Sentencing Commission’s “advice.” The Commission-approved sentence for a particular crime represents one typically valid interpretation of Congress’s sentencing statute, and the guardians policing the justice of the Guidelines as applied to individual cases are district court judges who understand themselves to be free to offer more case-specific interpretations of Congress’s sentencing mandate. Thus, when those judges concur with the Commission that a particular sentence is warranted, it seems quite appropriate to show that combined decision some serious respect.

The harder and much more important question is what sort of presumption attaches to non-Guideline sentences. Will judges think of themselves as free to roam, or will they fear that every venture away from the sturdy center of the Guidelines will leave them out on a judicial limb? If appearances from the appellate record can be trusted, a disturbing pattern has emerged. Below-Guideline sentences seem to be reversed significantly more often than they are upheld—at least in published opinions. This is extremely important because it is the non-Guideline presumptions, rather than the within-Guideline presumptions, that express most clearly the threat of appellate reversal associated with an exercise of discretion. If leaving the safe harbor of the Guidelines is too closely associated with the prospect of reversal, then the promise of Booker will become little more than the old system with a new name. The already-atrophied muscle of sentencing discretion will continue to wither in disuse, while the current habit of Guideline adherence will become all the more entrenched.

This might be fine—even a cause for celebration among Guideline enthusiasts—except that one of the few things we do know about sentencing law is that the old system was unconstitutional. We do not know how much discretion is constitutionally required, but we might rightly suspect that a de facto presumption of unreasonableness for non-Guideline sentences would raise a constitutional eyebrow. Such a presumption would essentially re-create the de novo review of outside-Guideline sentences that served to enforce the now-excised Feeney Amendment. That is emphatically not an advisory system.

And even beyond the constitutional argument, there are reasons to hope for a revitalization of judicial discretion in sentencing. One small reason is the pursuit of justice. Partisans of strong Guidelines cite the injustice of inequality across similar cases when seeking to use the Guidelines as a limit on judicial discretion. As Marc Miller has noted, it seems clear that rote application of the Guidelines to two defendants charged with the same crime under very different background facts will produce only pathological forms of sentencing equality rather than any real sentencing equity. Aristotle long ago taught that justice inheres not in simply treating people equally, but in treating equals as equals. That is judges’ work. A nuanced assessment of similarity across cases is not only a uniquely judicial function, but one that is best carried out by a judge immersed in the facts of the individual case rather than by a distant Commission operating ex ante. Thus, healthy discretion may be just as effective as iron-clad Guidelines—if not more effective—in the production of real justice across cases.

Lest this appeal to moral theory seem too, well, theoretical, rest assured that a similar valuation of discretion lies within what remains of Congress’s sentencing statute. Through its enumeration of multiple ends of sentencing, and its parsimonious requirement that judges impose a sentence “sufficient, but not greater than necessary” to make those ends meet, Congress clearly implied its view that a just sentence cannot always be determined before the fact and without all the facts. In short, this means that a renaissance of judicial discretion in sentencing is required to see that not only justice, but Congress’s will, be done.

The question as to what kind of presumption should attach to non-Guideline sentences is thus susceptible of an easy answer—none. There is no need for any unusual doctrine concerning within- or out-of-Guideline sentences. All sentencing decisions should be treated as ordinary judicial decisions are usually treated on appeal, with the kind of deference due to another trained jurist who had a much more nuanced and complete account of the facts in front of her when she made her decision. In this simple way, discretion can be reborn through ordinary deference to the sentencing judge.

Of course, there must be some sentences that are unreasonable, and so we still need criteria by which to know them. I have argued that the criteria for reasonableness should ignore the numbers game of Guideline ranges and should instead focus on the reasons that sentencing judges give for the sentences that they pick. A well-reasoned sentence would demonstrate an understanding of the principles that animate the particular Guidelines at play in a given case, as well as an appreciation of the possible impact of considerations outside the Guidelines, including the other factors in Congress’s sentencing statute. If a district judge has considered the reasons provided by the Guidelines and the relevant statutes, then appellate judges should scrutinize the particular sentence she gives with extreme deference, even if she has chosen a sentence well outside the Guideline range. The appellate judges might consider the particular number of months she chose solely to determine whether her given reasons were wholly pretextual.

That last bit about pretext is important. While I strongly endorse a rebirth of judicial discretion at sentencing, judges cannot be at liberty to invoke the Guidelines while generally ignoring them because they think they are too harsh across the board. If such general disagreements are evident, appellate courts should remand such cases for re-sentencing—after all, Congress created the Sentencing Commission and approves its work, so judges should not lightly (or really, ever) decide that this work is generally unimportant or off-target. But if the sentencing judge simply makes the sentencing judgment that a particular Guideline will be too harsh for a particular defendant given the other considerations of Congress’s statute, that judgment should be entitled to much deference.

What we need to make this system work, however, are true sentencing judgments. The Guidelines have changed judicial practice in this field. Judges once felt empowered just by virtue of their robes to do justice in sentencing; now they seem to feel incompetent without the Sentencing Manual. That sociology of sentencing will need to change if the imposition of mandatory Guidelines, as a practice, is ever to be left behind. The onus in this respect is on district courts, for if the criterion of post-Booker review for reasonableness is the well-reasoned-ness of the sentence, then sentencing courts will bear the burden of showing real, independent, and nuanced consideration of all their sentences if they hope for their non-Guideline sentences to stand up. If they give appropriate reasons then they should be entitled to deference, but that means they have to give their reasons in sentencing opinions that take time and effort to create. Yet if the federal judiciary takes up this mantle, and defends its discretion and its unique ability to do justice in sentencing, then the advisory Guideline system created by Booker can be made to work.

Eric Citron is a third-year student at Yale Law School, and the author of United States v. Pho: Reasons and Reasonableness in Post-Booker Appellate Review, a Comment on appellate review of sentencing that appeared in Issue 8 of Volume 115 of The Yale Law Journal.

Preferred Citation: Eric Citron, Sentencing Review: Judgment, Justice, and the Judiciary, 115 Yale L.J. Pocket Part 150 (2006), http://yalelawjournal.org/forum/sentencing-review-judgment-justice-and-the-judiciary.