In a per curiam summary reversal, the United States Supreme Court held in Spears v. United States that individual sentencing judges have the authority to categorically decide that an aspect of the United States Sentencing Guidelines is wrong, and to refuse to apply it.  Sentencing maven Doug Berman sought Lawprof/Counsel for the Appellant, Mark Osler’s reaction to the decision and here’s the response:

While today’s Spears opinion at times reads like a WWE Sentencing Smack-down hosted on the Food Network, with the majority’s description of the Eighth Circuit’s opinion as “a smuggled-in dish that is indigestible” and the dissent’s reference to the “bitter medicine” of summary reversal, the Court’s clarification of Kimbrough may end up having real significance.

Fundamentally, the Court’s opinion makes very clear that Booker requires that judges be allowed to categorically reject sentencing guidelines with which they disagree on policy grounds. In so doing, the Spears majority encourages judges to articulate personal sentencing guidelines in a sense, by concretely defining the alternatives they are choosing. The Court properly and succinctly recognized that unless sentencing judges are allowed to define their alternative scorings categorically and honestly, there are only two possible outcomes: Either the guidelines are essentially mandatory, or judges lie about their reasoning, which is “institutional subterfuge.”  As the Court asserted, “Neither is an acceptable sentencing practice.”

As a criminal defense lawyer, I should be thrilled by this.  Yet I’m not.  My spidey sense tells me there’s something wrong.  

My concern stems from having lived through the old, pre-guidelines days, when judges sentenced on their own and were responsible for the sentenced they imposed.  Some judges were known as harsh, while others less so, much as they are today.  But then, there were no guidelines behind which judges could hide. 

That a judge can, without any doubt following Spears, categorically reject the 100 to 1 guideline for crack versus powdered cocaine is certainly good.  That judges can similarly accept the 100 to 1 guideline for crack because they chose not to categorically reject it is wrong.  In the path of turning the once mandatory guidelines into advisory, and creating clarity as to what exactly that means and how seriously a circuit should take a district judge’s sentence, we are left with the residue of the guidelines still stinking up the courtroom.  It means that a judge so inclined can smile benignly as he imposes a guidelines sentence while being held unaccountable for explaining why he thinks a 100 to 1 ratio bears any nexus to reality. 

The sentencing judge must explain her reasoning when she exercises her authority to impose a sentence that falls outside the sentencing guidelines.  The sentencing judge who imposes a guidelines sentence need merely incant that it is the sentence necessary to satisfy 18 U.S.C. 3553(a) and no more.  The guidelines remain the refuge of the harsh judge.

But if one judge has held that an aspect of the guidelines are “categorically” wrong, there is a logical inconsistency that another judge can conclude exactly the opposite and leave the rest of us hanging without hope of a determination one way of the other.  How do we explain to a defendant that in courtroom A, he will get half the sentence that he would in courtroom B, simply because one categorically subscribes to the guidelines while the other categorically does not?  Does this not smack of arbitrariness?

As I write this, I can’t believe that it sounds like I have come full circle and am arguing for guidelines, for consistency, but for a set of guidelines that suit my vision of sentencing as opposed to the one that the United States Sentencing Guidelines Commission propounded.  This is not what I propose or support.

My best explanation is that the irrationality of the sentencing guidelines, the arbitrary imposition of such ratios as crack to powdered cocaine, the rejection of family circumstances as a sentencing factor, the attempt to homogenize all defendants when each and everyone is an individual human being worthy of a sentence imposed based upon the specifics of each case and each person, makes me fearful of any approval of “categorical” approaches.

While Spears approval, given the underlying case, is certainly consistent with my views of a proper outcome, I cannot help but fear that a categorical approach will go the opposite direction with some other judge, who perhaps feels that a 100 to 1 ratio is insufficient, and a 200 to 1 would be better.  Perhaps it’s just a wish to return to the good old days, where there were no guidelines at all and each judge decided on a sentence based on the specifics of the case before him.  And yes, for better or worse.