Criminal law, and more particularly criminal procedure, fascinates me a great deal. Perhaps in this area of the law I find it easier to connect legal principles to real people and problems, and the facts of cases are often riveting, even if in horrific ways. (For example, some cases contain facts reminiscent of a Greek tragedy. See, e.g., Cosby v. Sigler, No. 04-3331 (7th Cir. Jan. 18, 2006).)

So, I read with some interest the Supreme Court’s decision last week in Kimbrough v. United States, which resolved a circuit split concerning application of the Sentencing Guidelines. I suspect this case will become a familiar one, at least to law clerks and criminal law practitioners. Under the guidelines, those dallying in crack cocaine rather than powder cocaine faced significantly higher sentences. (Oddly, to determine a sentence under the Federal Guidelines, the government has concocted “equivalencies” between various drugs for the courts to consider. For example, an individual caught with 500 milligrams of crack cocaine (“cocaine base” in the argot of the guidelines) faced a sentence similar to someone caught with 25 grams of powder cocaine, assuming similar backgrounds and situations. See drug equivalency table here.) In the wake of the Booker decision, which rendered the guidelines advisory, various courts addressed the issue of whether a sentencing judge could depart from the advisory guidelines based on disagreement with the guidelines themselves (as opposed to particular characteristics of the crime or the defendant). Specifically, could a district court judge sentence a defendant guilty of a crime involving crack cocaine below the guideline range just because the judge thought the sentence provided by the guidelines would be unfair in comparison to a defendant guilty of a crime involving powder cocaine. The 1st, 2nd, 4th, 5th, 7th, 8th, and 11th circuits each concluded that a departure from the guideline range could not be based on disagreement with the policies set forth in the guidelines themselves. Thus, if a district court judge in those circuits disagreed with the powder/crack disparity, the judge still had to impose a sentence within the guidelines (assuming no other factors warranted a departure). The D.C. and Third Circuit permitted a departure. (The Supreme Court decision did not cite to cases in the 6th or 9th circuits, I do not know what they did with the issue, but I would be shocked if they had not confronted the issue at some point.)

Although I had not been following the arguments or briefing, I was surprised that the court decided 7-2 to permit a departure, going against the decisions reached by seven circuits. In short, the decision permits district courts to set aside the guidelines if the guidelines themselves fail to produce an appropriate sentence under section 3553. Why bother with the guidelines at all then? To me, this just shows the difficulty of the remedial portion of the Booker decision. If the guidelines are to remain in effect as advisory, their advice should be followed except when individual circumstances warrant a change in the sentence, not just if a district judge disagrees with the guidelines and can point to some legislative history supporting the position. As Thomas’s dissent points out,

As a result of the Court’s remedial approach, we are now called upon to decide a multiplicity of questions that have no discernibly legal answers. . . . [a smaller difference in crack and powder cocaine sentences] may be perfectly reasonable as a matter of policy, but they ha[s] no basis in law. Congress did not mandate a reasonableness standard of appellate review—that was a standard the remedial majority in Booker fashioned out of whole cloth. See 543 U. S., at 307–312 (SCALIA, J., dissenting in part). The Court must now give content to that standard, but in so doing it does not and cannot rely on any statutory language or congressional intent. We are asked here to determine whether, under the new advisory Guidelines regime, district courts may impose sentences based in part on their disagreement with a categorical policy judgment reflected in the Guidelines. But the Court’s answer to that question necessarily derives from something other than the statutory language or congressional intent because Congress, by making the Guidelines mandatory, quite clearly intended to bind district courts to the Sentencing Commission’s categorical policy judgments. See 18 U. S. C. §3553(b) (2000 ed. and Supp. V) (excised by Booker). By rejecting this statutory approach, the Booker remedial majority has left the Court with no law to apply and forced it to assume the legislative role of devising a new sentencing scheme.

We will have to stay tuned to see how far the rabbit hole of the Booker remedial decision will go. I suspect this decision will open all sorts of guideline policies up for debate.