Students of constitutional law are familiar with the argument that strict scrutiny is strict in theory, but fatal in fact. In the post-Booker, advisory guidelines era, a similar question arises for defendants seeking leniency at sentencing: while non-government-sponsored downward departures in theory remain part of the defense arsenal, are they—or should they be pronounced—dead in fact?
If you survey the federal appeals courts around the country, the views are varied. Some circuits encourage, if not require, consideration of available guidelines departure authority. Other circuits have declared departures to be “obsolete” and “redundant” in light of the broad variance authority under 18 U.S.C. §3553(a).1
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