Letting Guidelines be Guidelines
(And Judges Be Judges)

Gerard E. Lynch

United States District Judge, Southern District of New York; Paul J. Kellner Professor of Law, Columbia University

In a prescient New York Times op-ed piece entitled “Let Guidelines be Guidelines,” written in response to the Supreme Court’s decision in Blakely v. Washington, before certiorari was granted in United States v. Booker, Bill Stuntz of Harvard and Kate Stith Cabranes of Yale urged that the best solution for the constitutional crisis facing the United States Sentencing Guidelines would be to treat the Guidelines as guidelines, and not as a straightjacket. The Supreme Court evidently took a similar view, deciding in Booker that the Guidelines were constitutional only to the extent that they were not mandatory. The recent follow-up decisions, Kimbrough and Gall, reinforce and extend the holding of Booker that district court judges are not bound by the Guidelines, but should impose sentences based on the general criteria set forth in 18 U.S.C. § 3553(a), after giving due consideration to the Guidelines.

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