Will the U.S. Sentencing Commission remove "Departures" from the Sentencing Guidelines?

Twenty years ago this month, in United States v. Booker, 543 U.S. 220 (2005), the U.S. Sentencing Guidelines were found to be unconstitutional by the Supreme Court because their mandatory nature violated Fifth Amendment due process and Sixth Amendment notice provisions. The Court remedied the constitutional infirmity by declaring the Guidelines to be “merely advisory.” Well aware that an advisory system was neither what Congress intended nor how the U.S. Sentencing Commission designed the Guidelines, the Court observed that:

“[o]urs, of course, is not the last word: The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.”

Congress, unfortunately, dropped the ball. For the past 20 years, Congress has done nothing to develop a long term, constitutional sentencing system. All the while federal sentencing has devolved into what the late Justice Scalia correctly predicted would be the result of Booker: a “discordant symphony” of wildly disparate sentences.

For its part, the Commission has finally acted to address the fallout of Booker as best it can. On December 19, 2024, it voted to publish a proposed amendment to possibly remove “departures” from the Guidelines and in its place direct courts to consider “variances” under 18 U.S.C. S. 3553(a). Prior to Booker, courts were authorized to sentence outside the Guidelines range in very limited circumstances identified by the Guidelines as “departures.”

After Booker, in addition to departures, courts would sentence outside the now-advisory range (even a range that was the result of a departure) by “varying” due to the Guidelines’ now advisory nature. As, there is little practical difference between departures and variances, the Commision is now considering eliminating departures for purposes of simplifying application of the Guidelines.

In so doing, the Commission has expressly recognized that while Congress imposed restrictions on the Commission in terms of what it could and could not consider when promulgating the Guidelines, the same does not apply to the courts under 18 U.S.C. s. 3553(a).

“Accordingly, the [new proposed] application instructions . . . are structured to reflect this two-step process whereby the sentencing court must first correctly calculate the applicable guideline range as the ‘starting point and initial benchmark’ and then must determine an appropriate sentence upon consideration of all the factors set forth by Congress in 18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 49–51 (2007).”

The take away is that the Commission now recognizes that the Guidelines alone are incomplete and insufficient for crafting an appropriate sentence inasmuch as the Guidelines necessarily do not take into consideration the full panoply of relevant data otherwise available to judges under sec. 3553(a). If this proposed amendment ultimately passes, it could prove even more system-shocking than even Booker 20 years ago. We will be closely monitoring and reporting on developments in the coming months.

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Will the U.S. Sentencing Commission remove “Departures” from the Sentencing Guidelines?

Mark Allenbaugh