Abstract: The primary role of the Supreme Court is to resolve conflicts among the federal courts of appeal. When the split concerns federal sentencing policy, however, the Supreme Court has ceded this role to the U.S. Sentencing Commission, effectively allowing the Commission to act as the Supreme Court in this context. As then-Judge Alito recognized, “no other federal agency—in any branch—has ever performed a role anything like it.”This anomaly has largely escaped academic attention because the Court’s abdication comes in the form of certiorari denials, which are buried in the Court’s long order lists. But the consequences of the Court’s refusal to review splits involving federal sentencing policy—referred to here as “sentencing abstention”—cannot be ignored. Sentencing abstention perpetuates uncertainty and wide-ranging sentencing disparities, meaning the length of a defendant’s sentence will depend on the happenstance of where the defendant is sentenced. The principled and fair administration of justice cannot tolerate such ambiguity and randomness.This Article argues that there is no sound basis for sentencing abstention. It outlines reasons—grounded in precedent, congressional intent, administrative law principles, and practical considerations—why the Court should reassume its traditional role of resolving federal sentencing guideline splits, provide uniformity and consistency to the federal judiciary, and contribute thereby to the development of a reasoned and coherent federal criminal justice system.
Publication Year: 2021
Publication Date: 2021-01-01
Language: en
Type: article
Indexed In: ['crossref']
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