The past decade has brought dramatic and progressive change to criminal sentencing in federal court. The continued utility of the United States Sentencing Commission and its sentencing guidelines miraculously survived this change. The Supreme Court, in its 2006 decision in U.S. v. Booker, rescued the guidelines from obscurity in order to continue to promote the sentencing policy goals of uniformity and proportionality. However, the next important change needed is the least likely to occur — the Sentencing Commission itself must steward the “evolution” of its guidelines.
District judges routinely reject certain provisions of the guidelines as unhelpful. The Sentencing Commission must reinvent itself by reshaping its guidelines post-Booker. To start, the commission should remove the provisions in the guidelines that courts regularly exercise their discretion to disregard. And examples of routinely disregarded guideline provisions are not hard to find.
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