The pre-Booker Federal Sentencing Guidelines were, by far, the most vigorously enforced sentencing guidelines in the nation. That is to say, under pre-Booker federal law, judicial sentencing discretion was hemmed in--by a combination of statutory and administrative rules--to a much greater extent than under the laws of any state. As compared with eighteen state guidelines systems in operation in early 2005, the federal system was a stark outlier in its emphasis on rule over discretion.

Booker has reduced the mandatory character of the Federal Guidelines, but the degree of change should not be overstated. The Court has not made the Federal Guidelines toothless, nor has it reinstituted the kind of sentencing discretion held by district court judges in the days of indeterminate sentencing. It is true that, for purposes of constitutional discourse, the post-Booker (or Booker-ized) Guidelines are now dubbed "advisory" by the Supreme Court. This is little more than legal jargon, however--and part of the distorted terminology that has cropped up in the Court's new Sixth Amendment jurisprudence. The word "advisory," when attached to sentencing prescriptions, holds talismanic power for some Justices and therefore must be used strategically by other members of the Court. Policymakers should not credit the use of language stretched out of shape by the internal debates of the Justices. There is reason to think that the post-Booker Federal Sentencing Guidelines still pack as much wallop as any sentencing guidelines in the country...

 

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