The Need To Codify United States v. Booker

May 25, 2022  |  The Insider: White Collar Defense and Securities Enforcement

Few Supreme Court decisions on criminal law loom as large as United States v. Booker from 2005. In that case, in a pair of 5-4 decisions, the Supreme Court ruled that the United States Sentencing Guidelines, which had been mandatory since their promulgation in 1986, violated the Sixth Amendment, and that the Guidelines were henceforth to be treated by sentencing judges as “merely advisory.” The mandatory Guidelines regime that preceded Booker—which required federal judges to sentence defendants within harsh, narrow ranges—was widely criticized. One survey showed that nearly 70% of federal judges objected to the mandatory Guidelines, and one judge even resigned because of them, writing in an opinion column in The New York Times that he no longer wanted “to be a part of our unjust criminal justice system.” Over the past 17 years since Booker, there has been little cause for concern that Booker’s important reforms would be upended. Until now.

The Need To Codify United States v. Booker