It’s almost like Judge Easterbrook read my article.  I have a forthcoming piece in the Marquette Law Review arguing that appellate courts ought generally to demand more rigor of trial judges in explaining their sentences and specifically to require greater attention to objective benchmarks.  Not surprisingly, I was quite pleased to read the Seventh Circuit’s opinion earlier this week in United States v. Kirkpatrick (No. 09-2382) (Easterbrook, J.), in which the court called for “intellectual discipline” at sentencing and vacated a sentence because the district judge failed to use the sentencing guidelines as an initial benchmark.

Here’s what happened.  Following his arrest for unlawful gun possession, Kirkpatrick confessed to four murders and then told his cellmate that he had arranged a contract hit on a federal agent.  After more than 200 hundred hours of investigation, law enforcement officials determined that all of these claims were false.  (Why Kirkpatrick would confess to four murders he did not actually commit is a mystery to me.)  With a conviction only for the gun-possession crime, Kirkpatrick’s guidelines range was calculated to be 37-46 months.  The district judge, however, felt he deserved more because of the false statements and the wasted law enforcement effort they caused.  So the sentence actually imposed was 108 months — more than twice the guidelines maximum. 

On appeal, Kirkpatrick argued that five years of additional imprisonment was an unreasonable response to 200 hours of lost law-enforcement time, and the Seventh Circuit seemed to agree.  The court’s concerns, however, were ultimately more focused on the faulty reasoning process of the district judge than the substance of the sentence imposed.  Here is a sample:

The judge proceeded as if any sentence within the statutory maximum (10 years) needs no explanation beyond the conclusion that something more than the top of the Guidelines’ range is in order.  Yet every sentence must be justified under the criteria in § 3553(a), and the district judge does not appear to have recognized that leaping close to the statutory maximum creates a risk of unwarranted disparity with how similar offenders fare elsewhere–not only because this may overpunish braggadocio, but also because it leaves little room for the marginal deterrence of persons whose additional deeds are more serious (for example, actually putting out a contract on an agent’s life).

I think the appellate court’s reasoning here is pretty much right on the money.  A statutory range provides an important pair of benchmarks (minimum and maximum) and those benchmarks should generally be viewed as the appropriate sentences for best- and worst-case offenders, respectively.  The great majority of offenders who fall into neither the best- nor worst-case categories should be sentenced closer to the middle.  The guidelines range is also an important benchmark, particularly if the relevant guidelines are generally followed–then, a large variance from the guidelines might raise important disparity concerns. 

In Kirkpatrick, the Seventh Circuit also offered an interesting elaboration on what it means to use the guidelines as a benchmark: “[T]his implies that, when a judge believes that extra crimes justify extra punishment, it is wise to see how much incremental punishment the Sentencing Commission recommends.”  Following its own suggestion, the court then calculated what Kirkpatrick’s guidelines range would have been if he had been convicted of the crimes of lying to and threatening federal agents: 57-71 months–well short of the 108 months actually imposed.  The district judge’s failure to consider this “recommendation” of the Sentencing Commission required that the sentence be vacated.