Judicial opinions post-Booker reflect something that the great legal scholar Yogi Berra described. The same decisions that turned the Federal Sentencing Guidelines (“Guidelines”) into mandatory rules are being adopted by courts across the country, with the same results. Booker or no Booker, it is déjà vu all over again!

In United States v. Booker, the Supreme Court constitutionalized sentencing in a way it had not done before. The Guidelines, the Court held, were not guidelines in any meaningful sense of the word. So long as they required judges to find facts that had consequences pre-ordained by the United States Sentencing Commission (“Commission”), what judges did looked exactly like what juries were supposed to do, and that violated the Sixth Amendment. As a remedy, the Court severed the provisions of the Sentencing Reform Act of 1984 (“SRA”) that made the Guidelines mandatory. Courts were to “consider” the Guidelines but could sentence individuals in light of all the purposes of sentencing: retribution, deterrence, public safety, and rehabilitation. Appellate courts were to review sentencing decisions for “reasonableness” not for their strict fealty to the Guidelines. The Guidelines, in short, were now “advisory,” the Court announced.

But announcing that the Guidelines are advisory does not make them so. While Booker prompted questions about what “reasonableness” review entails, and whether a within-Guideline sentence is presumptively reasonable, one thing is clear. No matter what the Guidelines are called, they will remain influential. Sentencing will not return to what I have called the “free at last" regime that pre-dated the Guidelines—sentencing without standards or rules. But at the same time, unless the courts and the Commission are vigilant, there will never be a truly advisory sentencing regime either.

Guideline regimes exist on a continuum from voluntary to mandatory, with an advisory regime lurking somewhere in the middle. One could find both “mandatoriness” and “advisoriness” in the SRA’s language and legislative history;it was not clear which direction the Guidelines scheme would go. With the complicity of Congress, the Commission, and surprisingly, the courts, the federal system quickly slid to the mandatory end. Sentencing, which for two hundred years had been a uniquely judicial function, was now portrayed as the polar opposite. A scant role for individualized sentencing judgments remained. Rule-enforcement reigned supreme. Some judges even believed that they were not competent to sentence without elaborate directives from the Commission.

This sea change in attitudes aside, the Guidelines were likely to figure prominently in post-Booker sentencing because of what cognitive researchers call “anchoring.” Anchoring is a strategy used to simplify complex tasks, in which “numeric judgments are assimilated to a previously considered standard.” When asked to make a judgment, decision-makers take an initial starting value (i.e., the anchor) and then adjust it up or down. Studies underscore the significance of that initial anchor; judgments tend to be strongly biased in its direction. In effect, the 300-odd page Guideline Manual provides ready-made anchors.

So, if the post-Booker goal of the courts and the Commission was to enforce the Guidelines, then they did not have to say much. But speak they have, and with each decision and report, the slide towards “mandatoriness” has resumed. The courts and the Commission are each walking the same path post-Booker that they had pre-Booker.

Before Booker, the Commission’s focus was Guideline enforcement. The Guidelines implemented one purpose—avoidance of disparity—to the exclusion of all others. The drafters admitted as much, as have former Commissioners, and Commission staff. One searches in vain for findings as to how a given Guideline advanced any of the other statutory purposes. Nor did the Commission ever behave like an expert sentencing agency to whom deference was due. It was supposed to take into account the “advancement in knowledge of human behavior as it relates to the criminal justice process” as well as to measure “the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing.” Instead, the Commission did what Congress did, only with a more cursory record. It considered each side’s sentencing proposals and split the difference. It was the “junior-varsity Congress” that Justice Scalia critiqued in Mistretta v. United States.

Soon after the Guidelines became effective, two hundred judges declared the Guidelines unconstitutional on delegation grounds, decisions that the Supreme Court rejected in Mistretta. And when the Commission’s report treated departures as “noncompliance,” judges were not shy about expressing their outrage, as Daniel Freed noted in his seminal 1992 article. Departures, after all, were essential to the advisory Guideline system. Avoiding “unwarranted disparity” was never intended to mean identical sentences from one end of the country to the other.

But over time the opposition quieted and slavish rule-following became the norm. Judges accepted the premises of the Guidelines—that the Guidelines were comprehensive, promulgated by an expert agency, and implemented all of the SRA’s purposes—ignoring the reality. If there were gaps, the expert Commissioners had to fill them; not judges. Judges had become clerks, not authorized to interpret the rules as a common-law judge would do, but instead meant only to find the right sentencing “answers,” like a civil code enforcer would. The Commission was the regulator; the judges the regulated.

Like the Commission, the appellate courts fixated on Guideline enforcement. Most decisions were formulaic; few ever mentioned sentencing purposes. The goal of departure review was to circumscribe it. The appellate courts did not say the Guidelines were mandatory; they did not have to.

Now, post-Booker, it is, as Yogi Berra would say, déjà vu all over again. The Commission sings the same tune—sentencing uniformity above all else. It could have announced a plan to generate more studies about efficacy, deterrence, or crime control to inform Guideline development as well as guide judges’ Booker discretion. It could have provided new, detailed findings to encourage a more nuanced Guideline interpretation. It did not. Instead, it has announced—ipse dixit—that the Guidelines already embody all purposes of sentencing, and has thrown its influence behind the “Guidelines-as-presumptively-reasonable” camp. The Commission even suggested that any legislation should deal with the standard for appellate review, and, by implication, tighten it, ostensibly to reign in the district courts—who hardly need it. Ironically, when the Commission issued post-Booker statistics about judicial “conformance” with the Guidelines, few judges balked.

Recent appellate court decisions announcing that a Guideline sentence is presumptively reasonable bear an uncanny resemblance to pre-Booker decisions. They hold that deviation from Guideline ranges is rarely appropriate and only for reasons based on the same faulty premises that under-girded the mandatory regime. Appellate courts have insisted that district court judges begin with—effectively, “anchor” their decisions—in the Guidelines before considering anything else. After years of pointed criticism by scholars and some judges, the Sentencing Commission has suddenly become the fount of all sentencing wisdom, subject to a deference far beyond that given to any other administrative agency. Even the appellate courts that have not labeled the Guidelines presumptively reasonable have acted no differently from those that have. With one exception, no within-Guideline sentence has ever been reversed. Only departures, or the new “variances” under Booker, are.

District judges have gotten the message. Advisory or not, “compliance” with the Guidelines is high. Some judges are explicit about their lack of competence to sentence without strict Guidelines. They maintain that when individual judges wander off the Guideline text they undermine national uniformity. They just insist that no single judge could possibly articulate rules for nationwide application as can a Commission. But national standards have always evolved from common law principles articulated by lower courts. Reasoning in one court, if persuasive, will be adopted by courts across the land.

The question remains, after eighteen years of straitjacketed sentencing, how should the appeals courts interpret "reasonableness" to encourage a truly advisory regime? Reasonableness review should mean evaluating sentences to see if the judge has articulated a general and acceptable rule or standard. It should mean acknowledging that the Guidelines are important but are not the only rules. It should mean developing a common law of sentencing: a new set of standards to inform sentencing decisions. It should mean interpreting the Guidelines not as atomistic civil code rules, but in context, in the light of all the § 3553(a) purposes.

It should mean allowing trial judges to behave as judges—distinguishing between Guideline rules of general application and their application to the individual case, and saying so clearly. And if the distinctions make sense, they will become precedent for the judge next door or across the country.

Finally, reasonableness review in an advisory regime should mean allowing the Guidelines to be critically evaluated as administrative rules. Why was drug addiction taken out of the federal sentencing calculus? How does the law of “extraordinary family circumstances”—which was incoherent, at best, pre-Booker—advance sentencing purposes? Perhaps if judges finally ask probing questions about the purposes of the Guidelines, the Commission will finally answer them.

The end result would be a sentencing regime that promotes all of the purposes of sentencing, a rough nationwide uniformity with differences articulated in a reasoned way. The alternative—lockstep “compliance” with Guidelines while intoning “advisoriness”—is not just bad policy or worse, hypocrisy; this time it will be unconstitutional.

The Hon. Nancy Gertner is a United States District Judge for the District of Massachusetts and a Visiting Lecturer in Law at the Yale Law School, where she co-teaches a seminar on sentencing.

Preferred Citation: Nancy Gertner, What Yogi Berra Teaches About Post-Booker Sentencing, 115 Yale L.J. Pocket Part 137 (2006), http://yalelawjournal.org/forum/what-yogi-berra-teaches-about-post-booker-sentencing#.