Guest Commentary

Professor Mark Osler, Baylor Law School & pro bono counsel to WLF for amicus brief in U.S. v. Dillon

*Cross-posted at Professor Osler’s blog, Osler’s Razor

Yesterday’s decision in Dillon v. United States continues the Supreme Court’s preference for practicality over principle in the area of sentencing.  Petitioner Percy Dillon argued that when he was resentenced for crack dealing after the federal sentencing guidelines were adjusted downward, the sentencing judge should have been allowed to consider things other than that adjustment to the guidelines—including an error in simply calculating the guidelines themselves.  Dillon’s lawyers argued that doing otherwise would violate the rule announced in the Court’s 2005 decision in United States v. Booker, setting out that the sentencing guidelines cannot be mandatory.

A 7-1 majority (with Justice Alito recusing himself) held that the Booker rule does not apply at resentencing.  Justice Sotomayor wrote for the majority, concluding that a sentencing judge’s discretion can still be strictly limited by the sentencing commission.

Underlying this decision was a thoroughly practical concern—that allowing district courts broad discretion at a resentencing would discourage the United States Sentencing Commission from making future changes in the guidelines retroactive.  The lone holdout in favor of principle was Justice Stevens, whose dissent at times tracked the language and logic of the amicus brief submitted by Washington Legal Foundation.  Justice Stevens described the actions of the Sentencing Commission in restricting the discretion of district judges as beyond the proper powers of that commission.

And therein lies the rub:  If we give a commission in Washington the power to limit the discretion of a local judge, we are sending power in the wrong direction.  When a judge looks a defendant in the eye to pronounce sentence, she has the advantage of being a member of the same community as that defendant and that defendant’s victims.  The greater the discretion given that judge, the better her ability to tailor a sentence (or resentence) to the values of that community.  Instead, the Dillon decision gives that discretion to the Sentencing Commission, a strange creature that is answerable to no community at all other than the one composed of its own bureaucracy (along with the rare attention and political vagaries of Congress).   On sentencing matters, injustice hides in institutions of complexity and centralization, and this opinion protects and extends both of these qualities in the federal courts.