Dead Law Walking: The Surprising Tenacity of the Federal Sentencing Guidelines

This Article takes a statistical look at the state of federal sentencing roughly a decade after United States v. Booker, 543 U.S. 220 (2005), in which the U.S. Supreme Court declared the Federal Sentencing Guidelines constitutionally dead, and in its next breath resurrected them in advisory form. The Booker transformation has engendered endless procedural wrangles and has unquestionably altered thousands of individual sentencing outcomes. Yet, from the points of view of federal defendants in the mass and of the system that processes them from arrest to prison gate, perhaps the most surprising fact about Booker is how small an effect it has actually had. Despite a continuing systemic drift away from strict guidelines compliance, the Guidelines continue to exercise a dominant influence on the sentences imposed on the overwhelming majority of federal defendants. And the broad-gauge judicial revolt against the severity of guidelines-driven sentences that many anticipated has been muted at best. This Article examines the tenacity of the Guidelines regime and considers its implications for those who practice in the federal courts and those who aspire to change federal sentencing outcomes.