As a frequent critic of the federal sentencing guidelines (see, e.g., my post from Monday), my readers–yeah, both of them–often assume that I dislike sentencing guidelines in general. To the contrary, I think that sentencing guidelines remain a good idea and have worked quite well in many states (not in Wisconsin, unfortunately, but I will leave that post for another day). The problem with the federal sentencing system is not that it has guidelines, but that it has bad guidelines.
Perhaps the most fundamental problem is their complexity, reflecting a quixotic desire to ascribe some specific weight to just about every aggravating sentencing factor that the drafters could think of. In this short working paper, newly posted on SSRN and forthcoming in the Federal Sentencing Reporter, I explain in more detail why and how the guidelines should be simplified. Of course, one might argue that guidelines reform would be a waste of time since the guidelines were transformed from mandatory to merely advisory by the Supreme Court in 2005. But Sentencing Commission data reveal that about 60 percent of federal sentences continue to be imposed within the guidelines range, and even in the remaining 40 percent the range remains an influential starting point in the sentencing calculus. In short, it is still well worthwhile to get the guidelines right.