A Suggestion for Making the Federal Sentencing Guidelines and the U.S. Sentencing Commission Reflect the Realities of Post-Booker Sentencing

Abstract It has been approximately seventeen years since the Supreme Court issued its landmark decision in United States v. Booker. In Booker, the Court transformed the Federal Sentencing Guidelines from mandatory to advisory. Nonetheless, the front-end of federal sentencing looks the same today as it did pre-Booker—the U.S. Probation Office prepares a presentence report (PSR), the parties litigate over the guidelines calculations set forth in the PSR, and the judge makes a ruling as to the appropriate guidelines range. The work of the U.S. Sentencing Commission also looks largely the same today as it did pre-Booker. This essay argues that it is time to change the guidelines to reflect the realities of post-Booker sentencing. More specifically, this essay argues that the complex and intricate guidelines need to be radically simplified. If the guidelines are simplified in the manner proposed, then the Sentencing Commission’s primary function would become the collection, analysis, and dissemination of sentencing data. Although the changes discussed in this essay would not result in a perfect federal sentencing system (far from it), they would result in a more efficient one that better reflects the practical realities of post-Booker sentencing.