Keeping the Federal Sentencing Guidelines Advisory

In 2005, the U.S. Supreme Court decided the case of United States v. Booker, which shook the foundations of the federal sentencing system. Booker was a huge victory for sentencing discretion.  FAMM filed a “friend of the court” brief in the case and in a series of cases that reshaped federal sentencing law. 

Prior to the Court’s decision in Booker, the U.S. Sentencing Guidelines – which apply in all federal criminal cases – were mandatory.  Judges had to follow them, and it was quite difficult and sometimes impossible to go below the guidelines’ sentence recommendation, even if that sentence was too harsh or did not fit the individual and the offense. Booker made the federal sentencing guidelines advisory. After Booker, judges must still consider the guidelines and do a guidelines calculation. Now, however, the guidelines are not binding. After considering a set of factors found in federal law, the judge is required to give a sentence that is “sufficient but not greater than necessary” to fulfill the purposes of punishment (e.g., just punishment, deterrence, public safety, rehabilitation) even if that sentence is lower than the one called for in the guidelines. Both the defendant and the government can appeal the sentence. On appeal, the sentence will be upheld unless it is unreasonable. The advisory guidelines produce fairer, more individualized, more humane federal sentences.  For this reason, FAMM supports Booker and the use of advisory guidelines. 

The Problem: Some have suggested that advisory guidelines are inadequate and should be made mandatory again to ensure that sentences are uniform across the country. The U.S. Sentencing Commission closely tracks sentencing decisions around the country to measure whether Booker is creating unwarranted sentencing disparities. The Commission has done extensive study on the impact of Booker, and concluded that the guidelines should be more binding on judges. FAMM opposes any effort to undo Booker or make the advisory guidelines mandatory once more and we have told the Commission on many occasions, including here.
Solution:  Do nothing to make the guidelines more binding on judges. Currently, FAMM is discouraging Congress from making the guidelines mandatory again. To date we have been successful.