First Principles and Practical Politics

Abstract

This article responds to recent remarks by Judge William Pryor to the American Law Institute recommending abandonment of the post-Booker advisory version of the Federal Sentencing Guidelines and adoption of a simplified presumptive federal guidelines system. Although I am extremely sympathetic to this idea (and have proposed variants of it on multiple occasions over the past decade), I am increasingly skeptical that it can be accomplished in the current and foreseeable political environment. The most daunting problem is not designing a sentencing mechanism better than either the pre- or post-Booker guidelines, but ensuring that such a system, however elegantly and expertly crafted, can survive contact with the political system. I explain how a system embodying the features advocated by Judge Pryor seems unlikely to gain approval from the Congress that will just have been seated when this article appears. Still more to the point, there seems a troublingly high risk that, even if such a system could be congressionally enacted, it would replicate the experience of the pre-Booker guidelines and become over time a one-way upward ratchet prescribing ever higher sentences.