In the development of the Supreme Court’s post-Booker caselaw, culminating in Kimbrough, the Court has challenged the defense bar to put the Guidelines to the test. The Sentencing Resource Counsel of the Federal and Community Public Defenders have taken up the challenge in a series of papers. The first, Amy Baron-Evans’ The Continuing Struggle For Just, Effective and Constitutional Sentencing After United States v. Booker, released in August 2006, took on DOJ's and the Sentencing Commission’s post hoc justification for the Guidelines as already including all the § 3553(a) factors and, therefore, needing be the only thing consulted in determining a sentence. (This theory has been accepted by some members of the Sixth Circuit. See, e.g., United States v. Buchanan, 449 F.3d 731, 735 (6th Cir. 2006) (Sutton, J., concurring) ). The Continuing Struggle, using the Commission’s own studies and data, show this for the fallacy that it is.
Since then, the Sentencing Resource Counsel have developed a series called Deconstructing the Guidelines which looks at the legal/theoretical underpinnings of specific Guidelines sections to examine whether or not the Commission, in crafting that guideline, was acting in "the exercise of its characteristic institutional role." Kimbrough, 128 S.Ct. 575. (These can be found on the Sentencing Resource Page of fd.org.) The sections addressed so far include career offender, the child pornography guidelines, firearms, and relevant conduct, particularly the use of uncharged and acquitted conduct.
But what will happen when the defense bar has exposed the Guidelines as a sham? To apply Jasna’s metaphor in a slightly different fashion, what happens when we show that the emperor has no clothes? Will the courts, including the Court of Appeals, reevaluate their approach to the value of Guidelines sentences, including their own use of the presumption of correctness on appeal for within-Guidelines sentences? Or will the courts instead say, "All hail the naked emperor!"? That remains to be seen. In the meantime, the challenge for the defense bar is to be the child saying the emperor has no clothes – and proving it to the adults unwilling to accept reality.
The problem, of course, is what do we have to offer the courts to take the place of the Guidelines? If we have nothing to offer, the courts will default back to the Guidelines – worthless or not – because they are better than nothing. Very few sitting district judges have experience sentencing defendants before the implementation of the Guidelines. As a result, the remainder may feel cut loose from their moorings without the Guidelines. Therein lies the challenge.