If my gut instinct tells me that someone should be placed on probation even though the Guideline range for that person calls for a long sentence, should I be able to rely upon my gut instinct? If I shroud my decision in the formal words of 18 U.S.C. § 3553(a) and thus obscure what I am really doing, is that OK?
These are very real and manifestly not idle questions. See United States v. Cole, No. 11-1513 (8th Cir., August, 6, 2013) and Professor Berman’s blog post of yesterday entitled, Eighth Circuit panel, though requiring more explanation, suggests probation could be reasonable sentence when guideline range was 11-14 years.
For federal criminal law practitioners, I respectfully challenge you to provide me with honest answers to these questions. I really want to know what you think. Tomorrow, I will write about a recent sentencing decision of mine that was entirely based upon instinct. But, I want to know your views first.