Just when federal judges may have thought it safe to exercise discretion in imposing sentence, signs of dissatisfaction with the post-Booker sentencing scheme are emerging. Recent congressional hearings, full of vitriol and partisanship, have raised the specter of a return to a mandatory and binding sentencing scheme—like the one that existed in the “good old days,” according to one congressman—and hint at the possible reformation or total elimination of the U.S. Sentencing Commission.
On Oct. 12, 2011, the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee conducted a hearing to examine the post-Booker sentencing regime titled “Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker.” The hearing revealed the existence of two camps with respect to the current sentencing structure—those who believe the current advisory system should remain in place (albeit with a bit of tweaking) and those who believe the advisory Sentencing Guidelines are a failure. The debate about the current federal sentencing system occurs against a greater backdrop in which some scholars believe the American criminal justice system, which one scholar referred to as “the harshest in the history of democratic government,” is rife with paradox.1 Regardless of whether one agrees with this view, attention must be paid to the current state of sentencing in America.
Brief History of the Guidelines
