Congressional manipulation of the sentencing guideline for child pornography possession: An argument for or against deference?

Duke Law Journal

Volumn 60, Issue 4, 2011, Pages 1015-1057

  Woodlee, John Gabriel ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 78851469517     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (240)

1. U.S. SENTENCING GUIDELINES MANUAL (2010).
2. See U.S. SENTENCING COMM'N, FINAL QUARTERLY DATA REPORT: FISCAL YEAR 2009, at 14 tbl.5 (2010), available at http://www.ussc.gov/sc_cases/USSC_2009_Quarter_Report_Final.pdf (showing the number of cases governed by Section 2G2.2 in which district courts imposed sentences within, above, and below the Guidelines range). These figures do not include government-sponsored below-Guidelines sentences.
3. Preliminary data for 2010 reinforce this pattern. The U.S. Sentencing Commission's preliminary third-quarter report shows below-Guidelines sentences in 43.8 percent of the cases governed by Section 2G2.2, see U.S. SENTENCING COMM'N, PRELIMINARY QUARTERLY DATA REPORT: 3RD QUARTER RELEASE 14 tbl.5 (2010), available at http://www.ussc.gov/sc_cases/USSC_2010_Quarter_Report_3rd.pdf, compared with 17.6 percent of all cases, id.at 1 tbl.1.
4. See U.S. SENTENCING COMM'N, RESULTS OF SURVEY OF UNITED STATES DISTRICT JUDGES: JANUARY 2010 THROUGH MARCH 2010, pt. III, tbl.8 (2010), available at http://www.ussc.gov/Judge_Survey/2010/JudgeSurvey_201006.pdf (finding that 70 percent of district judges surveyed believe the Guidelines range for possession of child pornography is too high).
5. See infra Part II.B.1.
6. For criticism of the child pornography Guideline, see generally Lynn Adelman & Jon Deitrich, Improving the Guidelines Through Critical Evaluation: An Important New Role for District Courts, 57 DRAKE L. REV. 575, 584-85 (2009).
7. Jesse P. Basbaum, Note, Inequitable Sentencing for Possession of Child Pornography: A Failure to Distinguish Voyeurs from Pederasts, 61 HASTINGS L.J. 1281 (2010).
8. Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, ODS TRAINING BRANCH (Jan. 1, 2009), http://www.fd.org/pdf_lib/childpornjulyrevision.pdf.
9. For a discussion of the controversy surrounding the child pornography Guideline, see generally Mark Hansen, A Reluctant Rebellion, A.B.A.J., June 2009, at 54.
10. For a defense of the Guideline, see generally Alexandra Gelber, Response to "A Reluctant Rebellion," DEPARTMENT OF JUST.: CHILD EXPLOITATION & OBSCENITY SEC. (July 1, 2009), http://www.justice.gov/criminal/ceos/ReluctantRebellionResponse.pdf.
11. See Ronald F. Wright, Sentencers, Bureaucrats, and the Administrative Law Perspective on the Federal Sentencing Commission, 79 CALIF. L. REV. 1, 8-11 (1991) (discussing the reasons for Congress's initial delegation of policymaking authority to the Commission through the Sentencing Reform Act of 1984 (SRA), Pub. L. No. 98-473, tit. II, ch. II, 98 Stat. 1837, 1987 (codified as amended in scattered sections of 18 and 28 U.S.C.)).
12. See infra Part II.A.
13. For a discussion of the ways in which some courts have approached this issue, see infra Part II.B.
14. See infra Part II.B.1.
15. See infra Part III.A.
16. See infra Part III.B.
17. See infra Part IV.
18. SRA, Pub. L. No. 98-473, tit. II, ch. II, 98 Stat. 1837, 1987 (codified as amended in scattered sections of 18 and 28 U.S.C.).
19. United States v. Booker, 543 U.S. 220 (2005).
20. Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 WAKE FOREST L. REV. 223, 225-26 (1993).
21. See also Ilene H. Nagel, Foreword: Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. CRIM. L. & CRIMINOLOGY 883, 894-95 (1990) (observing that under the pre-SRA rehabilitative model of sentencing, "Congress set the maximum penalty, the judge imposed a sentence from the appropriate range, and parole officials determined the actual length of imprisonment").
22. See S. REP. NO. 98-225, at 65 (1984) (" The shameful disparity in criminal sentences is a major flaw in the existing criminal justice system, and makes it clear that the system is ripe for reform.").
23. See 18 U.S.C. § 3624 (2006) (providing that "[a] prisoner shall be released by the Bureau of Prisons on the date of the expiration of his term of imprisonment, less any time credited toward the service of his sentence" because of his compliance with the prison's disciplinary regulations).
24. See also Mark Osler, Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip, 2009 BYU L. REV. 293, 308-09 (discussing the implications of the SRA's elimination of parole).
25. SRA § 217, 28 U.S.C. §§ 991-998 (2006) (establishing the Commission and defining its purposes and responsibilities).
26. See also Douglas A. Berman, A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STAN. L. & POL'Y REV. 93, 97-98 (1999) (describing the roles of Congress, the Commission, and the courts under the institutional framework established by the SRA).
27. See also 18 U.S.C. § 3553(a) (prescribing the factors to be considered by the district court in imposing a sentence); 28 U.S.C. § 994 (prescribing the factors to be considered by the Commission in promulgating the Guidelines).
28. 28 U.S.C. § 994.
29. U.S. SENTENCING COMM'N, SUPPLEMENTARY REPORT ON THE INITIAL SENTENCING GUIDELINES AND POLICY STATEMENTS 16 (1987), available at http://www.fd.org/pdf_lib/SupplementaryReport.pdf.
30. The Commission chose this approach to avoid the challenge of agreeing on a coherent penological theory to guide sentencing policy.
31. For criticism of this decision, see, for example, Marc Miller, Purposes at Sentencing, 66 S. CAL. L. REV. 413, 438-43 (1992).
32. Andrew von Hirsch, Federal Sentencing Guidelines: Do They Provide Principled Guidance?, 27 AM. CRIM. L. REV. 367, 370-71 (1989).
33. See Rita v. United States, 127 S. Ct. 2456, 2464 (2007) (emphasizing the "empirical approach" that the Commission purportedly used to formulate the Guidelines).
34. See also Carissa Byrne Hessick, Appellate Review of Sentencing Policy Decisions After Kimbrough, 93 MARQ. L. REV. 717, 726 (2009) (arguing that the Court's reasoning in Kimbrough v. United States, 128 S. Ct. 558 (2007)-that district courts should have more freedom to deviate from Guidelines that do not reflect the Commission's ordinary expertise-rests on the inaccurate assumption that most of the Guidelines reflect empirical analysis).
35. See, e.g., KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 60-66 (1998) (criticizing the Guidelines' deviations from past practice).
36. Paul J. Hofer & Mark H. Allenbaugh, The Reason Behind the Rules: Finding and Using the Philosophy of the Federal Sentencing Guidelines, 40 AM. CRIM. L. REV. 19, 33-35 (2003) (explaining why the Guidelines deviate from past practice and characterizing them as "an amalgam of empirical results and explicit or implicit policy choices").
37. See also U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A, sentencing tbl. (2010) (providing the Sentencing Table for calculating sentence ranges under the Guidelines).
38. See, e.g., U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(a)(1) (2010) (prescribing a base offense level of eighteen if the defendant is convicted of certain child pornography offenses).
39. E.g., SRA § 212(a)(2), 18 U.S.C. § 3553 (2006).
40. 18 U.S.C. § 3553(a).
41. E.g., Marc L. Miller & Ronald F. Wright, Your Cheatin' Heart(land): The Long Search for Administrative Sentencing Justice, 2 BUFF. CRIM. L. REV. 723, 745 (1999) (internal quotation marks omitted).
42. 18 U.S.C. § 3553(a).
43. See Michael M. O'Hear, The Original Intent of Uniformity in Federal Sentencing, 74 U. CIN. L. REV. 749, 776 (2006) (observing that the language of § 3553(a) "seems to suggest... that a judge might decline to impose a guidelines sentence in a particular case if the judge determined that the guidelines sentence was inconsistent with the statutory purposes of sentencing").
44. 18 U.S.C. § 3553(b)(1), invalidated by United States v. Booker, 543 U.S. 220, 245-46 (2005).
45. This provision was originally codified at 18 U.S.C. § 3553(b). It became § 3553(b)(1), however, when the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650, created new provisions under § 3553(b).
46. Booker, 543 U.S. at 233-34.
47. Booker, 543 U.S. at 245.
48. Apprendi v. New Jersey, 530 U.S. 466 (2000).
49. Blakely v. Washington, 542 U.S. 296 (2004).
50. (" [T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."); Apprendi, 530 U.S. at 490 (" [A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.").
51. Booker, 543 U.S. at 235.
52. See also 18 U.S.C. § 3553(a)(4) (2006) (requiring district courts to consider the range recommended by the Guidelines when imposing sentences).
53. Booker, 543 U.S. at 245.
54. Commentators have not failed to notice the irony in remedying a Sixth Amendment violation by increasing the power of judges, rather than juries.
55. See, e.g., Douglas A. Berman, Tweaking Booker: Advisory Guidelines in the Federal System, 43 HOUS. L. REV. 341, 345 (2006) (" [T]o culminate a jurisprudence seemingly seeking to vindicate the role of the jury in modern sentencing systems, Booker devised a remedy which ultimately gave federal judges new and expanded sentencing powers.").
56. Booker, 543 U.S. at 246 (reasoning that only preserving extensive judicial fact finding would "maintain[] a strong connection between the sentence imposed and the offender's real conduct-a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve").
57. Gall v. United States, 128 S. Ct. 586 (2007).
58. Sentencing always begins with the calculation of the defendant's Guidelines range, id. at 596, but how much that range should influence a district court's final sentencing decision is open to some debate. For a discussion of how some courts have approached this question when the applicable Guideline reflects express congressional policy choices, see infra Part II.B. For a proposed alternative approach, see infra Part III.
59. See Kimbrough v. United States, 128 S. Ct. 558, 575 (2007) (suggesting that because of the Commission's expertise and capacity for empirical study, "closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge's view that the Guidelines range 'fails properly to reflect § 3553(a) considerations' even in a mine-run case" (quoting Rita v. United States, 127 S. Ct. 2456, 2465 (2007))); Gall, 128 S. Ct. at 594, 597 (suggesting that because the Guidelines are "the product of careful study based on extensive empirical evidence," a more significant deviation from the Guidelines requires a stronger justification); Rita, 127 S. Ct. at 2464-65 (invoking the Commission's "empirical approach" as a justification for an appellate presumption that within-Guidelines sentences are reasonable, a device that would tend to encourage district courts to adhere to the Guidelines).
60. Kimbrough v. United States, 128 S. Ct. 558 (2007).
61. See Kimbrough, 128 S. Ct. at 574-75 (suggesting that a district court should have greater freedom to deviate from the Guidelines based on its own view that they are too severe when the Guidelines "do not exemplify the Commission's exercise of its characteristic institutional role").
62. See also Spears v. United States, 129 S. Ct. 840, 843 (2009) (per curiam) (clarifying that "the point of Kimbrough" was "a recognition of district courts' authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case").
63. Kimbrough, 128 S. Ct. at 575.
64. See infra Part II.A.
65. See Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 YALE L.J. 1420, 1491 (2008) (noting that there have been "hundreds of amendments to the original Guidelines, most of which increased penalties at the express direction of Congress").
66. For lists of congressional directives to the Commission, see generally U.S. SENTENCING COMM'N, FIFTEEN YEARS OF GUIDELINES SENTENCING: AN ASSESSMENT OF HOW WELL THE FEDERAL CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE GOALS OF SENTENCING REFORM app. B (2004), available at http://www.ussc.gov/15_year/15_year_study_full.pdf.
67. Congressional Directives to Sentencing Commission: 1988-2009, ODS TRAINING BRANCH (June 2010), http://www.fd.org/pdf_lib/congressionaldirectives.pdf.
68. See generally U.S. SENTENCING COMM'N, THE HISTORY OF THE CHILD PORNOGRAPHY GUIDELINES (2009), available at http://www.ussc.gov/general/20091030_History_Child_Pornography_Guidelines.pdf (describing in detail the history of the child pornography Guideline).
69. See, e.g., Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, § 401(i), 117 Stat. 650, 672 (codified as amended at 28 U.S.C. § 994 note (2006)) (amending the Guidelines directly to create an enhancement based on the number of images); Sex Crimes Against Children Prevention Act of 1995 (SCACPA), Pub. L. No. 104-71, §§ 2-3, 109 Stat. 774, 774 (codified as amended at 28 U.S.C. § 994 note) (requiring the Commission to increase the base offense level for child pornography offenses and create a two-level enhancement for offenses involving the use of a computer); Treasury, Postal Service and General Government Appropriations Act, 1992, Pub. L. No. 102-141, § 632, 105 Stat. 834, 876 (1991) (codified as amended at 28 U.S.C. § 994 note) (requiring the Commission to raise the base offense level for child pornography offenses).
70. See also U.S. SENTENCING GUIDELINES MANUAL § 2G2.2 (1987) (prescribing specific offense characteristics for distribution and receipt of child pornography).
71. See also U.S. SENTENCING GUIDELINES MANUAL § 2G2.2 (1987) (prescribing specific offense characteristics for distribution and receipt of child pornography).
72. See also Notice of Submission of Amendments to the Sentencing Guidelines to Congress, 55 Fed. Reg. 19,188, 19,198 (May 8, 1990) (amending Section 2G2.2 to include an enhancement for sadistic, masochistic, or otherwise violent images).
73. Notice of Submission of Amendments to the Sentencing Guidelines to Congress, 56 Fed. Reg. at 22,770.
74. 137 CONG. REC. 18,897-98 (1991) (reprinting the amendment as introduced during consideration of the appropriations bill).
75. 137 CONG. REC. 18,898 (1991) (statement of Sen. Helms).
76. Letter from William W. Wilkins, Jr., Chairman, U.S. Sentencing Comm'n, to Edward R. Roybal, Chairman, Subcomm. on Treasury, Postal Serv., and Gen. Gov't (Aug. 7, 1991), reprinted in 137 CONG. REC. 23,733-34 (1991).
77. See also Treasury, Postal Service and General Government Appropriations Act, 1992, Pub. L. No. 102-141, § 632, 105 Stat. 834, 876 (1991) (codified as amended at 28 U.S.C. § 994 note (2006)) (enacting the Helms-Thurmond Amendment into law); U.S. SENTENCING GUIDELINES MANUAL app. C, amends. 435-36 (2010) (describing amendments to the Guidelines promulgated in response to the Helms-Thurmond Amendment).
78. SCACPA, Pub. L. No. 104-71, 109 Stat. 774 (codified as amended at 28 U.S.C. § 994 note).
79. H.R. REP. NO. 104-90, at 4 (1995).
80. See 141 CONG. REC. 10,977-78 (1995) (reproducing statements made in the floor debate on SCACPA).
81. 141 CONG. REC. 10,279 (1995) (statement of Rep. Lofgren).
82. See also Notice of Submission to Congress of Amendments to the Sentencing Guidelines, 61 Fed. Reg. 20,306, 20,307 (May 6, 1996) (implementing the changes required by SCACPA).
83. Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650 (2003) (codified as amended in scattered sections of 18, 21, 28 and 42 U.S.C.).
84. See also PROTECT Act §§ 301-305 (establishing the Amber Alert program).
85. See also PROTECT Act § 502 (amending federal statutes regarding child exploitation offenses to better deal with the problem of virtual child pornography).
86. See also 149 CONG. REC. 7640-43 (2003) (introducing the Feeney Amendment).
87. Skye Phillips, Note, Protect Downward Departures: Congress and the Executive's Intrusion into Judicial Independence, 12 J.L. & POL'Y 947, 983 & n.185 (2004).
88. (Citing Laurie P. Cohen & Gary Fields, Ashcroft Intensifies Campaign Against Soft Sentences by Judges, WALL ST. J., Aug. 6, 2003, at A1) (noting the Feeney Amendment's origin in the DOJ).
89. See also 149 CONG. REC. 7643 (2003) (allowing twenty minutes for the floor debate on the Feeney Amendment).
90. See PROTECT Act § 401 (enacting a modified version of the Feeney Amendment).
91. 149 CONG. REC. 9347-48 (2003) (statement of Sen. Kennedy).
92. 149 CONG. REC. 7640-41 (2003).
93. See also Mark Osler, Uniformity and Traditional Sentencing Goals in the Age of Feeney, 16 FED. SENT'G REP. 253, 254 (2004) (characterizing the Feeney Amendment as a "mad rush to further restrict judicial discretion" and noting that "[t]he Feeney Amendment was enacted to limit downward departures by barring some previously-allowable departures, establishing de novo appellate review of departures, prohibiting the Sentencing Commission from adding any new grounds of downward departure for two years, and directing the Sentencing Commission to amend the Guidelines to ensure that the number of downward departures are [sic] 'substantially reduced'").
94. See 149 CONG. REC. 7643-45 (2003) (reproducing the House debate about the Feeney Amendment); 149 CONG. REC. 9346-51, 9353-58, 9360-66 (2003) (reproducing the Senate debate about the Feeney Amendment).
95. See 149 CONG. REC. 9351-52 (2003) (reproducing letters expressing the objections of the Judicial Conference of the United States and the Commission).
96. See also PROTECT Act § 401(i)(B) (enacting a direct amendment to the Guidelines for child pornography offenses).
97. PROTECT Act § 401(i)(B).
98. See also Notice of Submission to Congress of Amendments to the Sentencing Guidelines Effective November 1, 2004, 69 Fed. Reg. 28,994, 29,003 (May 19, 2004) (consolidating Sections 2G2.2 and 2G2.4).
99. See also Notice of Submission to Congress of Amendments to the Sentencing Guidelines Effective November 1, 2004, 69 Fed. Reg. at 29,003 (increasing the base offense levels for possession and receipt of child pornography).
100. U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(a)(1) (2010). The base offense level for trafficking or receipt is twenty-two, id. § 2G2.2(a)(2), but is reduced to twenty for simple receipt, id. § 2G2.2(b)(1). Though possession and simple receipt have different base offense levels, they are otherwise treated similarly by the Guidelines.
101. For simplicity's sake, this Note focuses on possession.
102. U.S. SENTENCING COMM'N, USE OF GUIDELINES AND SPECIFIC OFFENSE CHARACTERISTICS: FISCAL YEAR 2009, at 36 (2010), available at http://www.ussc.gov/gl_freq/09_glinexgline.pdf.
103. U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(2).
104. U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(6).
105. U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(7).
106. Recall that these enhancements almost always apply.
107. U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A, sentencing tbl.
108. Although the Commission had previously promulgated an enhancement for violent images under the Guideline for distribution and receipt of child pornography, see supra note 80 and accompanying text, the PROTECT Act amended Section 2G2.4, the Guideline for possession, to include such an enhancement, see supra notes 104-05 and accompanying text.
109. U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(4).
110. 18 U.S.C. § 2252(b)(2) (2006).
111. U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(5).
112. Because Section 2G2.2 applies not only to possession of child pornography but also to trafficking and receipt, see id. app. A (providing that all offenses defined under 18 U.S.C. § 2252 are to be sentenced under Section 2G2.2), it also provides enhancements for distribution of child pornography for various purposes, see id. § 2G2.2(b)(3) (prescribing, at a minimum, a two-level offense level increase for distribution, with five-to seven-level increases for more pernicious circumstances). Because the distribution enhancements seem to target transportation, distribution, or sale offenses criminalized under 18 U.S.C. §§ 2252(a)(1)-(3), rather than possession, this Note does not dwell on the distribution enhancements.
113. See, e.g., United States v. Beiermann, 599 F. Supp. 2d 1087, 1104 (N.D. Iowa 2009) (concluding that the Guideline for child pornography offenses warrants little deference "because it is the result of congressional mandates, rather than the Commission's exercise of its institutional expertise and empirical analysis"); United States v. Hanson, 561 F. Supp. 2d 1004, 1009 (E.D. Wis. 2008) (concluding that the child pornography Guideline warrants little deference because the "respect [owed to the Guidelines] will be greatest where the Commission has satisfied its institutional role of relying on evidence and study to develop sound sentencing practices"); United States v. Baird, 580 F. Supp. 2d 889, 895 (D. Neb. 2008) (" Because the [child pornography] Guidelines do not reflect the Commission's unique institutional strengths, the court affords them less deference than it would to empirically-grounded guidelines.").
114. District Judge Lynn Adelman has also advocated this approach in a law review article.
115. Kimbrough v. United States, 128 S. Ct. 558, 564 (2007).
116. See Kimbrough, 128 S. Ct. at 574-75 (reasoning that district courts should have greater discretion to deviate from the 100-to-1 ratio because it does not "exemplify the Commission's exercise of its characteristic institutional role").
117. See infra Part III.A.
118. See Kimbrough, 128 S Ct. at 570 (summarizing the government's argument that the courts should adhere to the 100-to-1 ratio).
119. See also 2G2.2 REPLY TO GOVERNMENT 11 (n.d.), available at http://www.fd.org/pdf_lib/2G2.2ReplytoGovt.pdf (last visited Dec. 1, 2010) (responding to the government's argument that courts may deviate from the child pornography Guideline based only on individualized circumstances, not "based on policy disagreements with a particular guideline").
120. Courts have addressed an issue similar to the special problem raised by the child pornography Guideline in at least one other context. The SRA directs the Commission to set the Guidelines for certain categories of recidivists "at or near" the statutory maximum for the offense of conviction. 28 U.S.C. § 994(h) (2006). Until Congress enacted the Fair Sentencing Act of 2010, Pub. L. No. 111-220, §§ 2-3, 124 Stat. 2372, 2372 (to be codified at 21 U.S.C. §§ 841, 844), the statutory maximums for cocaine offenses incorporated the 100-to-1 crack/powder ratio. See 21 U.S.C. § 841(b) (2006) (amended 2010) (prescribing a maximum penalty of forty years in prison for manufacturing or distributing five hundred grams of powder cocaine or five grams of crack cocaine and a maximum penalty of life in prison for manufacturing or distributing five kilograms of powder cocaine or fifty grams of crack cocaine). As a result of these congressional policy choices, the career-offender Guideline inevitably reflected this disparity. See U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(b) (2010) (providing that a career offender's offense level must be based on the statutory maximum for the offense of conviction). The Seventh and Eleventh Circuits once held that because, in this context, the disparity results from congressional policy decisions, Kimbrough does not free district courts to deviate from the career-offender Guideline based on a disagreement with this disparity. See United States v. Welton, 583 F.3d 494, 496 (7th Cir. 2009) (" [T]he career offender Guideline range is the product of a Congressional mandate."), vacated, 130 S. Ct. 2061 (2010), and overruled by United States v. Corner, 598 F.3d 411 (7th Cir. 2010) (en banc); United States v. Vazquez, 558 F.3d 1224, 1229 (11th Cir. 2009) (" [U.S. SENTENCING GUIDELINES MANUAL] § 4B1.1-which was the result of 'direct congressional expression'-is distinguishable from Kimbrough's crack cocaine Guidelines, which were the result of implied congressional policy."), vacated, 130 S. Ct. 1135 (2010).
121. The Seventh Circuit has overruled its decisions adopting this approach. Corner, 598 F.3d at 416. The Supreme Court has vacated the Eleventh Circuit case adopting this approach, in light of the government's decision to abandon the position that district courts may not reject the crack/powder disparity reflected in the career-offender Guideline. Vazquez, 130 S. Ct. at 1135; see also Brief for the United States at 7, Vazquez v. United States, 130 S. Ct. 1135 (2010) (No. 09-5370), 2009 WL 5423929 (requesting that the Court vacate the Eleventh Circuit's decision in light of the government's recently adopted position that district courts may deviate from the career-offender Guideline based on policy disagreement with it).
122. See United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009) (citing United States v. Rodríguez, 527 F.3d 221, 230 (1st Cir. 2008)) (observing that circuit precedent has interpreted Kimbrough to allow district courts to deviate from the Guidelines based on disagreement with the policies they embody "even where a guideline provision is a direct reflection of a congressional directive"); see also United States v. Mitchell, No. 08-50429, 2010 WL 4105220, at *4 (9th Cir. Oct. 20, 2010) (holding that district courts may deviate from the career-offender Guideline based on their disagreement with the crack/powder disparity it reflects); United States v. Michael, 576 F.3d 323, 327 (6th Cir. 2009) (same), cert. denied, 130 S. Ct. 819 (2009); cf. United States v. Sanchez, 517 F.3d 651, 664-65 (2d Cir. 2008) (holding that Congress's directive to the Commission to set the career-offender Guideline near the statutory maximum does not "deprive the courts of authority to impose on a career offender a prison term that is not near the statutory maximum," though not explicitly deciding whether district courts may exercise that authority based on a categorical policy disagreement with Congress's view that career offenders should ordinarily be sentenced near the maximum). Although these courts have rejected the view that congressional policy choices embedded in the Guidelines are binding, they appear for the most part to have said little else about how much weight those policy choices warrant. See Mitchell, 2010 WL 4105220, at *4 (declining to provide any guidance regarding the weight owed to congressional policies embedded in the career-offender Guideline beyond the holding that district courts may disagree with those policies); Michael, 576 F.3d at 327 (same); see also Sanchez, 517 F.3d at 668 (noting only that "[c]ongressional policy judgment[s]... must be taken into account"). But see Stone, 575 F.3d at 93 (" After Kimbrough, the law allows one judge to find that congressional input makes a sentence less empirical, and so less appropriate, while another judge may reasonably find such input makes the sentence more reflective of democratic judgments of culpability, and so more reasonable.").
123. For a discussion of the importance of recognizing the democratic legitimacy of congressional policy choices embedded in the Guidelines, see infra Part III.A.1.
124. See infra notes 168-70 and accompanying text.
125. See Kimbrough v. United States, 128 S. Ct. 558, 570-74 (discussing and rejecting the government's argument that the 100-to-1 ratio in the Guidelines reflected the will of Congress).
126. See infra text accompanying note 170.
127. See infra Part III.B.
128. U.S. CONST. art. I, § 2.
129. Stephanos Bibas, Max M. Schanzenbach & Emerson H. Tiller, Policing Politics at Sentencing, 103 NW. U. L. REV. 1371, 1388 (2009) (" Congress has democratic legitimacy; courts do not.").
130. Cf. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346, 1391 (2006) (" The system of legislative elections is not perfect... but it is evidently superior as a matter of democracy and democratic values to the indirect and limited basis of democratic legitimacy for the judiciary. Legislators are regularly accountable to their constituents and they behave as though their electoral credentials were important in relation to the overall ethos of their participation in political decisionmaking.").
131. 18 U.S.C. § 3553(a)(2)(A) (2006).
132. See Paul H. Robinson & Barbara A. Spellman, Sentencing Decisions: Matching the Decisionmaker to the Decision Nature, 105 COLUM. L. REV. 1124, 1133 (2005) (" [T]o the extent that much of this decisionmaking requires a balancing of fundamental societal values... no single individual is likely to be able to capture and represent the range of views within the society.").
133. Arguably, even the vaunted expertise of the Commission is of comparatively little value to this goal of sentencing.
134. As Ronald Wright has argued, "[T]he vision of a scientific, apolitical sentencing policy is at once appealing and naive. Values not susceptible of empirical verification will always dominate sentencing decisions.".
135. See Benjamin I. Page & Robert Y. Shapiro, Effects of Public Opinion on Policy, 77 AM. POL. SCI. REV. 175, 181 (1983) (finding that government policy is more likely to accord with public opinion on highly salient issues).
136. Notably, a directive that addresses an especially salient issue is likely to closely approximate public opinion even if the directive itself is not well publicized. An unpopular vote on such a directive could easily become a liability in future reelection campaigns.
137. See R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 10 (1990) (quoting an unnamed congressman's expression of concern that his vote, though unlikely to attract notice at the time, could be used against him in a future campaign).
138. Bartnicki v. Vopper, 532 U.S. 514, 550 (2001) (Rehnquist, C.J., dissenting); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665-66 (1994) (plurality opinion) (quoting Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 331 n.12 (1985)); Diamond v. Chakrabarty, 447 U.S. 303, 317 (1980).
139. See 18 U.S.C. § 3553(a)(2)(B) (requiring sentencing courts to consider the need for "adequate deterrence to criminal conduct").
140. See William Otis, Priority for a New Administration: Restore the Rule of Law in Federal Sentencing, 20 FED. SENT'G REP. 345, 345 (2008) (arguing that in a line of cases "starting with Apprendi v. New Jersey, running through Booker v. United States, and ending in Gall v. United States and Kimbrough v. United States, the Supreme Court.... made clear that appellate review of district court sentencing decisions was to be deferential, if not, for most practical purposes, empty" (footnotes omitted)).
141. Carissa Byrne Hessick & F. Andrew Hessick, Appellate Review of Sentencing Decisions, 60 ALA. L. REV. 1, 26 (2008).
142. Gall v. United States, 128 S. Ct. 586, 591 (2007).
143. See Cynthia K.Y. Lee, A New "Sliding Scale of Deference" Approach to Abuse of Discretion: Appellate Review of District Court Departures Under the Federal Sentencing Guidelines, 35 AM. CRIM. L. REV. 1, 14 (1997) (noting that "appellate courts set forth general principles which lower courts must follow").
144. Thus, a primary rationale for the discretion that district judges have historically enjoyed in sentencing is that they are in a better position than appellate courts to appreciate the nuances of particular cases.
145. See MICHAEL TONRY, SENTENCING MATTERS 3 (1996) (" Until twenty-five years ago, the word 'sentencing' generally signified a slightly mysterious process which, it was all but universally agreed, involved individualized decisions that judges were uniquely competent to make. Sentencing laws were crafted to allow judges latitude to fashion penalties tailored to the circumstances of individual cases.").
146. Andrew von Hirsch, The Sentencing Commission's Functions, in THE SENTENCING COMMISSION AND ITS GUIDELINES 3, 6 (1987).
147. Cf. Linda Greenhouse, Chief Justice Attacks a Law as Infringing on Judges, N.Y. TIMES, Jan. 1, 2004, at A14 (" [Judges] are able to see the consequences of judicial reform proposals that legislative sponsors may not be in a position to see." (quoting William Rehnquist, C.J., U.S. Supreme Court)).
148. 18 U.S.C. § 3553(a) (2006).
149. Marvin E. Frankel & Leonard Orland, Sentencing Commissions and Guidelines, 73 GEO. L.J. 225, 233 (1984).
150. Jonathan R. Macey, Public Choice: The Theory of the Firm and the Theory of Market Exchange, 74 CORNELL L. REV. 43, 46 (1988).
151. As Professor William Landes and Judge Richard Posner explain, under interest-group theory, "legislation is 'sold' by the legislature and 'bought' by the beneficiaries of the legislation" ; "[p]ayment takes the form of campaign contributions, votes, implicit promises of future favors, and sometimes outright bribes.".
152. William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & ECON. 875, 877 (1975).
153. Accordingly, legislators will tend to be deaf to the concerns of those unable to pay in this currency.
154. Rachel E. Barkow, Administering Crime, 52 UCLA L. REV. 715, 725-26 (2005).
155. See Donald A. Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice; or, Why Don't Legislatures Give a Damn About the Rights of the Accused?, 44 SYRACUSE L. REV. 1079, 1089 (1993) (arguing that because legislators "undervalue the rights of the accused," courts should actively develop constitutional norms of criminal procedure).
156. See Sara Sun Beale, The News Media's Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness, 48 WM. & MARY L. REV. 397, 405-08 (2006) (describing punitive trends beginning in the 1980s).
157. Cf. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 508 (2001) (" American criminal law's historical development has borne no relation to any plausible normative theory-unless 'more' counts as a normative theory.").
158. See Rachel E. Barkow & Kathleen M. O'Neill, Delegating Punitive Power: The Political Economy of Sentencing Commission and Guideline Formation, 84 TEX. L. REV. 1973, 1975 (2006) (" [A]ll of the powerful political groups and the electorate have lined up on the same side: They all seem to support tougher sentencing laws.").
159. See Chien-Chieh Huang, Derek Laing & Ping Wang, Crime and Poverty: A Search-Theoretic Approach, 45 INT'L ECON. REV. 909, 910-11 (2004) (enumerating studies that demonstrate links between crime and market wages, unemployment, and educational attainment).
160. Those who may face "corporate criminal sanctions, such as penalties for violations of securities and environmental laws," are one possible exception.
161. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U.L. REV. 575, 587-88 (2002) (reporting, based on interviews with congressional staffers, that "[t]he only area in which we heard that paid lobbyists had a limited role was standard criminal law issues, where there is no real lobby but where the Department of Justice is a regular player").
162. Cf. Thomas M. Mengler, The Sad Refrain of Tough on Crime: Some Thoughts on Saving the Federal Judiciary from the Federalization of State Crime, 43 U. KAN. L. REV. 503, 529-30 (1995) (offering an analogous explanation for the increasing federalization of criminal law).
163. The news media often overemphasize sensational crime stories as a cost-effective way of securing an audience.
164. This practice can lead the public to overestimate the severity of the crime problem.
165. Public misperceptions are exacerbated by cognitive errors that may lead people to form inaccurate generalizations about the crime problem based on a few particularly salient examples.
166. Sara Sun Beale, What's Law Got to Do with It? The Political, Social, Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRIM. L. REV. 23, 60 (1997).
167. For a discussion of how cognitive errors such as overgeneralization influence the public's views of crime and criminal justice.
168. Julian V. Roberts, Public Opinion, Crime, and Criminal Justice, 16 CRIME & JUST. 99, 121-24 (1992).
169. See also JULIAN V. ROBERTS & MIKE HOUGH, UNDERSTANDING PUBLIC ATTITUDES TO CRIMINAL JUSTICE 10-15 (2005) (suggesting that crime rates in several nations, including the United States, were actually falling even when people in those nations believed they were not).
170. JULIAN V. ROBERTS, LORETTA J. STALANS, DAVID INDERMAUR & MIKE HOUGH, PENAL POPULISM AND PUBLIC OPINION: LESSONS FROM FIVE COUNTRIES 21 (2003).
171. In 2002, two-thirds of the public believed that courts in their area did not deal harshly enough with criminals.
172. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2003, at 141 tbl.2.47 (Ann L. Pastore & Kathleen Maguire eds., 2005), available at http://www.albany.edu/sourcebook/pdf/t247.pdf.
173. Throughout much of the 1980s and 1990s, more than 80 percent of respondents held that same belief.
174. Some empirical evidence supports this explanation of public support for harsher penalties. In a number of studies in which judges and laypersons were asked to recommend sentences in particular cases, the laypersons' favored sentences were no more severe than the judges'.
175. Studies such as these undermine the suggestion that legislative intervention is needed to bring sentences up to levels consistent with majoritarian values.
176. A study of British attitudes toward sentencing found that those who underestimated the use of imprisonment were more likely to say that sentences were too lenient.
177. Mike Hough & Julian V. Roberts, Sentencing Trends in Britain: Public Knowledge and Public Opinion, 1 PUNISHMENT & SOC'Y 11, 17-18 (1999).
178. This finding suggests that voters may demand harsher sentences in part because they underestimate the severity of prevailing sentences.
179. In the context of criminal justice issues, this phenomenon is well-recognized enough to have earned its own name: "penal populism," which is defined as "the pursuit of a set of penal policies to win votes rather than to reduce crime rates or to promote justice.".
180. See Marc Mauer, Why Are Tough on Crime Policies So Popular?, 11 STAN. L. & POL'Y REV. 9, 14 (1999) (suggesting that heightened public concern about crime often coincides not with increased crime problems but with well-publicized political initiatives purporting to be tough on crime).
181. Cf. KATHERINE BECKETT & THEODORE SASSON, THE POLITICS OF INJUSTICE: CRIME AND PUNISHMENT IN AMERICA 63 (2d ed. 2004) (describing the efforts of government officials in the late 1980s to draw media attention to the spread of crack cocaine and noting that "heightened public concern about drugs reached its zenith immediately following President Bush's national address in 1989, in which he focused exclusively on the drug crisis").
182. Notably, a judicial tendency to be less punitive because of this proximity to the individual realities of sentencing may in fact be consistent with majoritarian public values. Studies have found that as people are given more information about the offender and the offense, they become less punitive.
183. See also William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275, 304 (1988).
184. See 141 CONG. REC. 10,977-78 (1995) (recording statements made in the floor debate that discuss the merits of SCACPA).
185. See also 137 CONG. REC. 18,906 (1991) (statement of Sen. Helms) (" Obviously I[] cannot get the yeas and nays with no other Senator on the floor. Everybody is in committee meetings.").
186. The twenty-minute House debate on the Feeney Amendment centered on the provisions governing downward departures and appellate review, see 149 CONG. REC. 7643-45 (2003) (detailing the House debate about the Feeney Amendment), as did the more extended debate in the Senate, see id. at 9346-51, 9353-58, 9360-66 (recording the Senate debate).
187. 149 CONG. REC. 9347 (2003) (statement of Sen. Kennedy). Even SCACPA, a short bill devoted almost exclusively to penalties for child pornography offenses, passed without any hearings. H.R. REP. NO. 104-90, at 2-4 (1995).
188. See Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 77 (1991) (observing that courts may not "be presented with the full array of policy arguments" and that the parties are not guaranteed to "argue for the policy or rule that is best for society").
189. See Amy Adler, The Perverse Law of Child Pornography, 101 COLUM. L. REV. 209, 218 (2001) (" [T]he crisis over child sex abuse has taken center stage in our culture and politics, as the worst of all possible evils.").
190. See U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(6) (2010) (providing a two-level increase for the use of a computer).
191. See 141 CONG. REC. 10,280 (1995) (statement of Rep. Gilman) (" From mail order services to computer access, child pornographers are finding it easier to distribute their illegal materials.").
192. Michael M. O'Hear, Perpetual Panic, 21 FED. SENT'G REP. 69, 74 (2008) (observing that "the sex crime panic was reenergized by... the increasingly pervasive presence of the Internet," which "brought an unprecedented ease of access to" child pornography).
193. SCACPA § 3, 28 U.S.C. § 994 note (2006).
194. U.S. SENTENCING COMM'N, REPORT TO THE CONGRESS: SEX OFFENSES AGAINST CHILDREN: FINDINGS AND RECOMMENDATIONS REGARDING FEDERAL PENALTIES 29 (1996), available at http://www.ussc.gov/r_congress/SCAC.pdf.
195. See PHILIP JENKINS, BEYOND TOLERANCE: CHILD PORNOGRAPHY ON THE INTERNET 4 (2001) (" Since child pornography first entered the public consciousness in the mid-1970s, any involvement with such materials has commonly been regarded as an extreme and unforgivable form of deviance. Many other forms of deviant behavior have their reputable defenders or at least libertarians who assert that these activities should not be severely penalized.... For child pornography, however, there is no such tolerance....").
196. 137 CONG. REC. 18,898 (1991) (statement of Sen. Helms). The Congressional Record also reproduces several letters from antipornography and child-advocacy groups, as well as the DOJ. 137 CONG. REC. 18,899-906 (1991).
197. The only possible exception is Helms's conjecture that the ACLU would ask, "What is the big deal with pornography?" 137 CONG. REC. 18,898 (1991) (statement of Sen. Helms).
198. 137 CONG. REC. 23,732-34 (1991).
199. 149 CONG. REC. 9347-48 (2003) (statement of Sen. Kennedy).
200. Both opposed the Feeney Amendment. See 149 CONG. REC. 9351-52 (2003) (reproducing letters expressing the objections of the Judicial Conference and the Commission).
201. 149 CONG. REC. 9347 (2003) (statement of Sen. Kennedy).
202. See Emily Bazelon, Op-Ed., With No Sentencing Leeway, What's Left to Judge?, WASH. POST, May 4, 2003, at B4 (" A group of prosecutors in U.S. attorneys' offices and the Department of Justice pushed to get the Feeney amendment through Congress.... The unified opposition of judges appointed by both Republicans and Democrats counted for little because prosecutors have much more political clout.").
203. Chief Justice Rehnquist authored a letter to Senator Leahy expressing the Judicial Conference's opposition to the Feeney Amendment. 149 CONG. REC. 9351 (2003).
204. Charles Lane, Rehnquist Decries Sentencing Law, WASH. POST, Jan. 1, 2004, at A2.
205. Ian Urbina, New York's Federal Judges Protest Sentencing Procedures, N.Y. TIMES, Dec. 8, 2003, at B1.
206. See 149 CONG. REC. 9352 (2003) (reprinting a letter from the Commission arguing that "an issue of such magnitude" called for a more deliberative process that would include the preparation of a report to Congress by the Commission).
207. Both the Commission and the Judicial Conference opposed the practice of direct congressional amendments to the Guidelines, but neither expressed concern about increased penalties for child pornography offenses.
208. The broad sweep of the Feeney Amendment also led a perhaps surprising variety of interest groups to take the same side.
209. See Materials from Interested Groups Opposing Original Feeney Amendment, 15 FED. SENT'G REP. 346, 350, 353-54 (2003) (reprinting letters and press releases from, among others, the NAACP, the National Petroleum Refinery Association, and Business Civil Liberties, Inc. criticizing the Feeney Amendment).
210. There is little reason to expect such groups to mobilize against legislation that focuses more narrowly on penalties for child pornography offenders.
211. S. REP. NO. 108-2, at 3 (2003) (quoting S. Rep. No. 104-358, at 12-14 (1996)); see also H.R. REP. NO. 105-557, at 20 (1998) (" Law enforcement experts have testified before the Subcommittee on Crime that those who possess large quantities of child pornography are frequently child sex offenders and use such material to lure children into sexual encounters."); 149 CONG. REC. 9345 (2003) (statement of Sen. Hatch) (" [The bill] will protect our children from vicious criminals, pornographers, sexual abusers, and kidnappers. These types of individuals who prey on our Nation's youth are nothing less than the scum of the earth...."); 137 CONG. REC. 18,898 (1991) (statement of Sen. Helms) (" [T]his amendment increases the sentences for smut peddlers convicted of transportation, receipt, or possession of child pornography.").
212. 144 CONG. REC. 12,047 (1998) (statement of Rep. Bachus).
213. See Melissa Hamilton, The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?, 22 STAN. L. & POL'Y REV. (forthcoming 2011) (manuscript at 34-48), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1689507 (reviewing empirical evidence and finding insufficient support for a link between possession of child pornography and contact offenses against children).
214. Carissa Byrne Hessick, Disentangling Child Pornography from Child Sex Abuse, 88 WASH. U. L. REV. (forthcoming 2011) (manuscript at 24-28), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577961 (same).
215. For an overview of the limited empirical literature on the connection between child pornography and child sex abuse, see Neil Malamuth & Mark Huppin, Drawing the Line on Virtual Child Pornography: Bringing the Law in Line with the Research Evidence, 31 N.Y.U. REV. L. & SOC. CHANGE 773, 790-806 (2007).
216. After surveying the empirical literature, Professors Neil Malamuth and Mark Huppin conclude that "evidence does not support the proposition that there is a strong connection between being a child pornography offender and committing sexual molestation," but that "if a person has committed a child sex offense, then the use of pornography may constitute an additional risk factor for re-offending.".
217. In a more recent study, researchers studied a sample of child pornography users, of whom only 1 percent had previously committed a known contact offense, and found that "only 1% were charged with a subsequent hands-on sex offense in the 6 year follow-up [period].".
218. Jérôme Endrass, Frank Urbaniok, Lea C. Hammermeister, Christian Benz, Thomas Elbert, Arja Laubacher & Astrid Rossegger, The Consumption of Internet Child Pornography and Violent and Sex Offending, 9 BMC PSYCHIATRY 43 (2009), http://www.biomedcentral.com/content/pdf/1471-244X-9-43.pdf.
219. The researchers concluded that consumption of child pornography is not a predictor of future contact offenses among those with no previous contact offenses.
220. Indeed, criminal prohibitions against possession of child pornography survive First Amendment scrutiny in large part because of the government's interest in eliminating the market for the material. See Osborne v. Ohio, 495 U.S. 103, 109-10 (1990) (" It is... surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.").
221. (" [T]he materials produced by child pornographers permanently record the victim's abuse. The pornography's continued existence causes the child victims continuing harm by haunting the children in years to come.").
222. See PHILIP JENKINS, MORAL PANIC: CHANGING CONCEPTS OF THE CHILD MOLESTER IN MODERN AMERICA 7 (1998) (describing a cycle of increasing panic in which "[i]t comes to be believed that legions of sex fiends... stalk the land [and] that child pornography is an industry raking in billions of dollars and preying on hundreds of thousands of American youngsters every year").
223. See, e.g., Benjamin J. Priester, Apprendi Land Becomes Bizarro World: "Policy Nullification" and Other Surreal Doctrines in the New Constitutional Law of Sentencing 47-48 (Mar. 28, 2010) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577243 (" [O]n matters of non-constitutional law, the role of the courts is to interpret and apply the policies adopted by the legislature or executive branch enforcement authorities, lest they substituted the views of unelected judges for the policy judgments of the political branches.").
224. Congress is hardly unfamiliar with the use of mandatory minimums. See, e.g., 18 U.S.C. § 2251(e) (2006) (prescribing mandatory minimums for offenses involving the sexual exploitation of a child); 21 U.S.C. § 841(b) (2006) (prescribing mandatory minimums for drug offenses).
225. For a list of federal statutes prescribing mandatory minimum sentences, see U.S. SENTENCING COMM'N, OVERVIEW OF STATUTORY MANDATORY MINIMUM SENTENCING app. A (2009), available at http://www.ussc.gov/MANMIN/man_min.pdf.
226. Perhaps less realistically, there are also a number of ways in which Congress could restore the mandatory status of at least some elements of the Guidelines.
227. Cf. GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 92-93 (1982) (suggesting that judicial lawmaking might be legitimate in part because "judge-made rules... are subject to legislative or popular revision," but noting that an additional argument is necessary to explain why judges should be able to make such provisional law in the first place).
228. William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 CALIF. L. REV. 613, 642-61 (1991) (developing and applying a positive political theory model predicting that the Supreme Court will interpret statutes to conform to its policy preferences to the extent that it can be confident of avoiding a legislative override).
229. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1524 (1987) (" [T]he possibility of legislative correction is not a true majoritarian check because it is not regularly invoked. Political theory and experience suggest that because of the many procedural obstacles to legislation in our bicameral committee-dominated Congress[and] the tendency of interest groups to block rather than advance legislation... such legislative correction will rarely occur.").
230. Cf. Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 816 (1983) (arguing that the modern constitutional avoidance canon creates constitutional "penumbra[s]" that function as prohibitions because "Congress's practical ability to overrule a judicial decision misconstruing one of its statutes... is less today than ever before, and probably was never very great").
231. See also Kevin Clancy, John Bartolomeo, David Richardson & Charles Wellford, Sentence Decision making: The Logic of Sentence Decisions and the Extent and Sources of Sentence Disparity, 72 J. CRIM. L. & CRIMINOLOGY 524, 552 (1981) (finding that sentences varied according to judges' views about the relative importance of various goals of sentencing and about the success of the criminal justice system in achieving those goals).
232. Brian Forst & Charles Wellford, Punishment and Sentencing: Developing Sentencing Guidelines Empirically from Principles of Punishment, 33 RUTGERS L. REV. 799, 811 (1981) (finding that judges who regarded general deterrence, special deterrence, and incapacitation as important goals of sentencing imposed harsher sentences than judges who did not).
233. But see Alexander Bunin, Reducing Sentencing Disparity by Increasing Judicial Discretion, 22 FED. SENT'G REP. 81, 83 (2009) (arguing that under the advisory Guidelines, "[j]udges can now avoid both unwarranted disparity and unwarranted uniformity" because they can consider relevant factors neglected by the Guidelines).
234. See S. REP. NO. 98-225, at 65 (1984) (" The shameful disparity in criminal sentences is a major flaw in the existing criminal justice system, and makes it clear that the system is ripe for reform.").
235. Kimbrough v. United States, 128 S. Ct. 558, 574 (2007).
236. See 18 U.S.C. § 3553(a) (2006) (requiring sentencing courts to consider several factors alongside the need to avoid unwarranted disparity).
237. See also Michael M. O'Hear, The Myth of Uniformity, 17 FED. SENT'G REP. 249, 249 (2005) (" No matter how attractive uniformity might be in theory, we should not exalt uniformity to the detriment of other important objectives....").
238. Furthermore, the notion that deviation from the Guidelines threatens the goal of uniformity rests in part on the assumption that "adherence to the Guidelines... actually advances uniformity goals in a robust fashion.".
239. That assumption is not universally accepted.
240. Cf. Kevin Cole, The Empty Idea of Sentencing Disparity, 91 NW. U. L. REV. 1336, 1336 (1997) (arguing that the Guidelines lack "a coherent underlying theory of punishment," which is necessary to give meaning to the goal of "reducing sentencing disparity").