What’s the Deference? Interpreting the U.S. Sentencing Guidelines After Kisor
For more than three decades, the U.S. Sentencing Guidelines have constrained the punishment doled out by federal judges, limiting discretion that was once nearly unlimited and bringing standardization to the penological decisionmaking process. For twice as long, the Supreme Court has constrained judges in a different way—by requiring that administrative agencies receive deference when they interpret the meaning of their own regulations. At the convergence of these two domains sits “commentary,” or interpretive notes the U.S. Sentencing Commission appends to the otherwise congressionally approved Guidelines. In Stinson v. United States, the Court made clear that commentary should be reviewed and deferred to as an agency’s view of its own regulations. This classification has since rendered numerous examples of commentary, including those that enhance punishment, the last word on what the Guidelines mean and how they should be applied. Recently, however, in Kisor v. Wilkie, the Supreme Court clarified its regulatory deference doctrine, narrowing the circumstances in which it should be applied. This Note examines the historical interplay between federal sentencing and regulatory deference and considers whether, in light of Kisor, deference to commentary is appropriate. Specifically, by analyzing one example of commentary already dividing the circuit courts, this Note contends that Kisor and the rationales underlying the Guidelines and regulatory deference caution against their commingling—particularly where, as here, commentary only adds punishment.