The  New York Times editorial today praises the Supreme Court’s decisions in Gall and Kimbrough for having “struck a blow for basic fairness and judicial independence.”  Indeed, there is no doubt in my mind that it was the Court’s intention to end the Circuits’ gamesmanship in circumventing the “advisory guidelines” of Booker.

But will things turn out as well as the optimistic Times editorial board thinks?  That has yet to be seen.  History teaches us that the law, and the courts that apply it, is very hard to turn around.  It wasn’t long ago that we were celebrating Booker and Fan Fan as the end of the tyranny of the Guidelines and return to sanity.  It certainly didn’t live up to expectations.

We soon learned that new rules replace old rules.  We learned that the word “advisory” would be permanently placed before the word “guidelines”, but that a guidelines sentence was inherently reasonable and a downward departure would continue to be as unreasonable as it ever was.  It became a sad joke that we would rename the dreaded guidelines while courts would continue adhering to them for dear life. 

The editorial states:

Building on a 2005 decision that held the sentencing guidelines to be advisory rather than mandatory, the new rulings affirm that the guidelines are but one factor to be considered by a trial judge in arriving at an individual sentence, and that an appeals court must have a strong reason to overturn that sentence.

Of course, had things not gone awry after Booker, there would have been no reason to affirm that advisory meant advisory.  Are these decisions clear enough that the District Court judges will be emboldened to test their newly returned power to sentence appropriately.  Are they clear enough that Circuit Court’s won’t construct new tests by which District Court’s sentences can be reversed?  What will it take for the federal courts to reject their slavish adherence to the guidelines?

Unfortunately, part of the answer can be found in the final paragraph of the editorial:

There is a danger that the new procedures outlined by the court could end up making federal sentences unfairly disparate across the country, undermining one of the important objectives of having sentencing guidelines in the first place. If that happens, Congress will have to address the problem. For the moment, the Supreme Court’s latest adjustment in sentencing strikes us as a positive development, one with much potential for advancing justice.

This is the fear.  And apparently, even the New York Times believes that the need for uniformity is greater than the need for judicial independence and case-specific sentencing.  There is only one way nationwide uniformity can be achieved, and we all know how wonderful that experiment turned out.

But is lack of uniformity, a “danger” as described by the Times, really something so terrible?  I think not.  As we know, every case is different and unique in some way.  That defendants are sentenced differently should not be feared, but assume (in the absence of particularized evidence to the contrary) to reflect the unique nature of each case.  This is a good thing, demonstrating that courts are sentencing with such a degree of specificity that each case deserves. 

The lack of uniformity will, it Gall and Kimbrough have their desired affect, soon be back.  And the proponents of sentencing grids will decry how a guy with 2 kilos of heroin in New York can get 121 months when the same fellow in Houston gets 157 months.  They will propose turning judges back into grocery clerks who will give the same sentence to every defendant, no matter what the circumstance, for the same crime.  And then the circle starts again.

I wonder what the Times editorial will say when that happens.