GUIDANCE FROM ABOVE AND BEYOND

Criminal sentencing does not just happen in the courtroom. Some key sentencing decisions happen long before court convenes, while other critical sentencing decisions take place long after court adjourns. Although the public focuses primarily on the black-robed figure wielding the gavel, sentencing reflects decisions by a veritable parade of actors, including legislators, sentencing commissioners, police officers, prosecutors, juries, trial judges, appellate judges, and executive branch officials. All of these people guide and constrain the sentencing process. Through their official actions, they inform each other about what is happening in their corners of the sentencing drama, and prod their counterparts to respond appropriately. As the Supreme Court has written, the federal constitutional design assumes that the branches of government “converse with each other on matters of vital common interest.” Many of the points of communication, leverage, and decision that operate before the trial judge imposes the sentence—including the congressionally set maximum for the offense, mandatory minimums, and the Federal Sentencing Guidelines— have played a central role in the policy and scholarly debate following the Sentencing Reform Act of 1984. Less discussed over the past two decades—but just as vital—are several devices that can provide important post-sentencing guidance, communication, and action. These mechanisms can enhance a sentencing system’s vitality by providing guidance from “above and beyond.” This Article explores three post-sentencing tools, and provides advice to Congress on how they could be used. Part I advocates for the meaningful appellate review of sentences. There are various ways to organize such review, and it remains unclear how the federal system will operate after the dust settles from the Supreme Court’s recent decisions in Blakely v. Washington and United States v. Booker. Regardless, Congress can build on the recognized value of sustained and substantial interchange between sentencers by taking tangible steps to improve the communicative role of appellate review and to reinforce its structural framework. For example, Congress can work to reduce appellate conflict over the Guidelines by creating a special appellate court, the Court of Appeals for Sentencing, which would resolve important questions of sentencing law. Part II explores the role of discretionary parole release authority and concludes that a modest version of this device can offer important benefits in a post-Booker world. It observes that a properly structured indeterminate sentencing scheme, which by definition includes discretionary parole release, would both enable Congress to create a more tightly controlled front-end sentencing system if it so chose, and to institutionalize communication from the back-end sentencers. Finally, Part III examines the possibility of Extended Sentence Review (ESR) for certain long-serving, older offenders. This type of hybrid review—part clemency and part discretionary parole release—may have a significant, but limited part to play in modern sentencing. At a systemic level, ESR, by evaluating past sentencing decisions, would offer insights and lessons that current sentencers can use to craft sentencing policy today. Nevertheless, responsible sentencing decisions at the front-end should restrict the need for substantial ESR activity. A version of this work will appear in the Stanford Law Review at 58 Stan L. Rev. ___ (2005). When possible and appropriate, please cite to that version. GUIDANCE FROM ABOVE AND BEYOND