The More Things Change: A Psychological Case Against Allowing the Federal Sentencing Guidelines to Stay the Same in Light of Gall, Kimbrough, and New Understandings of Reasonableness Review

Abstract

This Article uses an analysis of the psychology of decision-making to argue that it is time to rethink the proper role of the Sentencing Guidelines. Psychology teaches that guidelines have an anchoring influence on an individual's decision-making capabilities. While this anchoring effect may be harmless when the Guidelines ranges truly reflect sentencing purposes, the same is not true when the Guidelines themselves are the product of bad sentencing policy. In Kimbrough, by allowing district courts to impose a sentence that results from the court's disagreement with the crack/powder cocaine disparity found in the Guidelines, the Court has acknowledged that the Guidelines ranges do not always reflect a sound adherence to the purposes of sentencing. In both Gall and Kimbrough, however, the Supreme Court continues to require district courts to calculate the proper Guidelines range and to consider that range before deciding on a reasonable sentence for a defendant. Circuit courts, then, must review a sentence for both procedural and substantive reasonableness. In light of the psychological anchoring aspects of the Guidelines, the procedural and substantive components of reasonableness review that are set forth in Gall and Kimbrough are at odds when placed within a system that requires potentially faulty Guidelines ranges to be calculated in order for a sentence to be deemed reasonable. This Article explores that tension and ultimately suggests that the Supreme Court do away with the requirement to calculate the Guidelines, and that Congress or the Supreme Court proscribe a new, truly advisory role for the Federal Sentencing Guidelines to play.