Supreme Court Reaffirms that District Court May Not Presume that Guidelines Range is Reasonable

A district court’s decision to sentence a crack offender to thirty years because there wasn’t “a good reason” to impose a sentence below his Guidelines range has led to an important per curiam decision from the Supreme Court.  Reaffirming – yet again – the advisory nature of the Guidelines in Nelson v. United States, 2009 WL 1650585 (U.S. January 26, 2009), the Court makes clear that “[t]he Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable” (emphasis in the original).  Since it was “plain from the comments of the sentencing judge that he did apply a presumption of reasonableness to Nelson’s Guidelines range,” the Court reversed the Fourth Circuit’s affirmance of his sentence for the second time.  

Of course, it’s plain to defense lawyers that many federal judges still apply a de facto presumption of reasonableness to the guideline ranges.  And they extend that presumption of reasonableness to the Guidelines’ presumption of imprisonment.  To paraphrase Churchill, the type of sentence is not in dispute, we’re just haggling about length.  It’s not hard to see why judges – most of them former prosecutors – may be wedded to the Guidelines.  For one thing, it’s hard to break decades of practice.  And the Guidelines are a powerful means of deflecting the awesome responsibility of deciding whether, and for how long, to send someone to prison.  But there is rarely a good reason for sentencing a crack offender – or for that matter, any non-violent offender – to thirty years.  The federal (and state) prisons are bursting with inmates serving guideline unusually long sentences that do not serve “any serious preventive purpose, especially given the costs,” as Professor Ben Trachtenberg points out in an effective essay, available here.  He goes on:

Consider nonviolent convicts sentenced for drug possession. Or septuagenarians who, sent away for decades under a “three strikes” law, now receive geriatric care from prison infirmaries.  Unthinking overreliance on imprisonment simply drains public treasuries without providing any future benefit. California recently predicted that, by 2012, its prisons would cost more annually than its state university system. A starker illustration of our misplaced priorities is difficult to imagine.

Our “misplaced priorities” include not only the length of federal prison sentences, but the fact that so many federal offenders are sentenced to prison in the first place.  Warehousing non-violent offenders in facilities that provide, among other things, few rehabilitative programs, sometimes dangerous work environments and often poor medical care, may actually increase recidivism.  

Nelson, coupled with the Court’s recent decision in Spears, and the Second Circuit’s decision in Cavera, will empower judges to dispense a more meaningful and compassionate justice.  Perhaps more importantly, they will encourage more judges to rethink basic sentencing questions, like whether a short, sharp shock of incarceration is more effective than years or decades behind bars, and whether the offender to be sentenced should go to prison at all.