Commentary: Winners and Losers in Gall and Kimbrough

Throughout today and tomorrow, we’ll have commentary on the decisions this morning in Gall v. US and Kimbrough v. US, both of which addressed issues in federal sentencing.

This entry is by Mark W. Osler of Baylor Law School. His bio and contact information are here, and a previous post he authored in the wake of the Rita decision is here. He was counsel of record in an amicus brief supporting petitioner in the Kimbrough case.

While the result in Kimbrough is certainly encouraging to many judges, practitioners, and academics, the opinion is more complex than it might at first appear. In short, Kimbrough seems to be good news for fans of the parsimony provision of 18 U.S.C. § 3553(a), bad news for fans of judicial transparency, and an announcement that the conflict over a remedy in Booker may not be resolved.

Winner: Parsimony Provision

Famously, but to date ineffectively, 18 U.S.C. § 3553(a) provides that a sentencing court “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” Commonly known as the “parsimony provision,” this bit of Congressional direction has had little real effect on sentencing, as judges have struggled to determine how it fits in with the many other factors the statute directs, and the weight to be given the guidelines themselves. In Kimbrough, though, the Court not only refers to this as an “overarching provision” (Slip Op. at 12), which implies a weight greater than any other individual factor, but ultimately found the parsimony provision to be the relevant, valid justification for the sentence given Kimbrough over the government’s objections. (Slip Op. at 22). It could be that the parsimony provision will now become a crucial driver of the sentencing calculus, rather than a vague piece of background flotsam.

Loser: Judicial Transparency

Unfortunately, while promoting the use the parsimony provision, the Court also noted that “the [sentencing] court did not purport to establish a ratio of its own.” (Slip Op. at 22). Whether this was the Court’s intent or not, there is the risk that Courts of Appeal will continue to reject crack sentences where the sentencing judge was explicit on the record as to the ratio she employed. After twenty years of numerical guidelines, judges think in terms of ratios. For example, many judges have adopted the 20:1 powder/crack ratio first promoted by the Sentencing Commission in 2002. The Court’s language in Kimbrough might be construed to condemn such a clear and well-substantiated articulation of how a sentence was calculated. It rewards the judge who used the Sentencing Commission’s 20:1 ratio in coming up with a number, but strategically left that fact out of the resulting opinion and comments from the bench, and punishes those who made the sentencing mechanism clear.

The problem with condemning discussion of other ratios is two-fold: It ignores the numerical way that judges think about sentencing in the guideline era, and it discourages rather than encourages judges to make clear how they got to a specific number. Though the Sentencing Commission’s abandonment of ratios between crack and powder cocaine in the 2007 amendment of Guideline § 2D1.1 largely moots this point for future cases, this problem of ratios could become an issue in the many cases backlogged in the circuit courts.

On the Horizon: Booker, Part 2?

Justice Thomas, in his dissent, announces that he is “now convinced that there is no principled way to apply the Booker remedy.” Even Justice Souter, normally accepting of stare decisis, concurred in Gall specifically to note that the Booker remedy is “hexing our judgments today,” and to urge Congress to fundamentally alter the sentencing scheme so as to require jury findings of facts which will change the possible sentence in a way which would otherwise violate the Sixth Amendment.

Will this spur Congress to act? If not, will the Court revisit the issue? The primary objection to jury findings seems to be practicality. However, as a resident of Texas, where such facts must be found by a jury (if the defendant desires) beyond a reasonable doubt, I haven’t seen the criminal justice system grind to a halt or become troubling pro-defendant. One would think that this might be recognized in the power corridors of Washington, which for the moment are still filled with Texans.