This commentary is by Mark W. Osler, a Professor of Law at Baylor Law School currently working on an amicus brief in Kimbrough.

While Doug Berman has offered an excellent overview of the Rita decision, I'd like to address just one somewhat strange but important conclusion drawn by Justice Breyer in his majority opinion– that the sentencing guidelines already incorporate the sentencing factors listed in 18 U.S.C. § 3553(a). Specifically, he concludes that "the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives."

What this ignores is the sheer number and diversity of directives that the Sentencing Commission must follow in drawing up the Guidelines. These directives extend far beyond what is required by 18 U.S.C. § 3553(a) itself, and includes instructions to consider ideas as vague as "fairness" and as narrow as the provision of restitution. Many of the directives (as Breyer recognizes) are in conflict with one another, which is perhaps inevitable given their sheer number.


Nothing makes my point better than a listing of the factors the sentencing commission is charged with considering, which is provided below. Quite simply, the immensity of these directives make them, as a whole, indeterminate; they point in so many directions that they ultimately can lead in no direction at all.

1) The nature of the offense (18 U.S.C. § 3553(a)(1)
2) The circumstances of the offense (18 U.S.C. § 3553(a)(1)
3) The history of the defendant (18 U.S.C. § 3553(a)(1)
4) The characteristics of the defendant (18 U.S.C. § 3553(a)(1)
5) The seriousness of the offense (18 U.S.C. § 3553(a)(2)(A)
6) Promotion of respect for the law (18 U.S.C. § 3553(a)(2)(A)
7) Just punishment for the offense (18 U.S.C. § 3553(a)(2)(A) & USSG §1A.1, intro to comment, pt. A, ¶ 2)
8) Deterrence to criminal conduct (18 U.S.C. § 3553(a)(2)(B) & USSG §1A.1, intro to comment, pt. A, ¶ 2)
9) Protection of the public from further crimes by the defendant
(18 U.S.C. § 3553(a)(2)(C)
10) To provide defendants with needed education or vocational training
(18 U.S.C. § 3553(a)(2)(D)
11) To provide defendants with needed medical care or other correctional treatment (18 U.S.C. § 3553(a)(2)(D)
12) The kinds of sentences available (18 U.S.C. § 3553(a)(3)
13) Policy statements by the sentencing commission (18 U.S.C. § 3553(a)(5)
14) The need to avoid unwarranted sentence disparities among defendants with similar records found guilty of similar conduct (18 U.S.C. § 3553(a)(6) & USSG §1A.1, intro to comment, pt. A, ¶ 2)
15) Provision of restitution (18 U.S.C. § 3553(a)(7)
16) Incapacitating the offender (USSG §1A.1, intro to comment, pt. A, ¶ 2)
17) Rehabilitating the offender (USSG §1A.1, intro to comment, pt. A, ¶ 2)
18) Proportionality in sentencing for conduct of differing severity
(USSG §1A.1, intro to comment, pt. A, ¶ 2)
19) Input from the Probation system, Judicial conference, DOJ, and Federal Defenders (28 U.S.C. § 994(o)
20) Directions from Congress (note following 28 U.S.C. § 994)
21) Maintaining sufficient flexibility to permit individualized sentences when warranted (18 U.S.C. § 991(b)(1)(B))
22) Advancements in knowledge of human behavior (18 U.S.C. § 991(b)(1)(C))
23) Neutrality as to race, sex, national origin, creed, and socioeconomic
status of offenders (28 U.S.C. § 994(d))
24) Fairness in sentencing (28 U.S.C. §§ 991(b)(1)(B) & 994(f))
25) Sentences need to be near the statutory maximum for crimes of violence or certain drug offenses (28 U.S.C. § 994(h))
26) Sentences need to allow for probation for certain first offenders (28 U.S.C. § 994(j))
27) Average sentences prior to imposition of the Guidelines (28 U.S.C. §
994(m))
28) Effect on prison populations (28 U.S.C. § 994(q))
29) Certainty (28 U.S.C. §§ 991(b)(1)(B) & 994(f))
30) The community view of the gravity of an offense (28 U.S.C. § 994(c)(4))
31) The current incidence of an offense in the community and nation
as a whole (28 U.S.C. § 994(c)(7))

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