Earlier this year, the Supreme Court made a landmark decision in U.S. v. Booker, 125 S. Ct. 738 (2005), that the mandatory Federal Sentencing Guidelines, as they had been applied since 1987, violated the Sixth Amendment right to trial by jury. Since the Court handed down its decision, judges and legal commentators around the country have been grappling with its potential implications for federal criminal sentencing. More than 100 federal court decisions interpreting Booker have already been penned, and countless pages in both the legal and popular press have been devoted to analyzing the decision. According to a recent article in the Wall Street Journal, even the country’s favorite white collar convict, Martha Stewart, became somewhat of a Booker-buff during her stay in prison.
Why has there been such a flurry of activity in response to the case? The answer is a function of the unique remedy the Court prescribed. Instead of striking down the Guidelines or requiring greater jury involvement in sentencing, the Court ruled that judges must consider the Guidelines but that they are merely advisory. This has created great uncertainty about the role of the Guidelines as well as the obligations of both judge and jury. Booker seems to challenge Congress, the Department of Justice, and the Federal Judiciary to rethink federal sentencing law. In the coming months, we will begin to see whether they are up to the task.
The Problem with the Guidelines
The Guidelines were promulgated by the United States Sentencing Commission ("USSC"), which was established by Congress through the Sentencing Reform Act of 1984. The Act was motivated by a "tough on crime" policy and a desire to eliminate the wide disparity in sentences handed down by federal judges. Many have suggested that the Act was passed in order to strengthen penalties for drug and firearm offenses, which were perceived to be increasing during the early to mid 1980s. The Guidelines are especially harsh with respect to the possession of “crack,” a drug which seemed to preoccupy lawmakers during the 80s. Under the Guidelines, crimes involving crack are punished about 100 times more harshly than crimes involving ordinary or “powder” cocaine. This fact has lead many to argue that the Guidelines codify racially discriminatory sentencing because the focus on crack has no articulable penalogical purpose.However, the USSC determined that the Guidelines should enhance penalties for white collar crimes as well. This was in response to concerns that white collar offenders were getting favorable treatment at sentencing. Though the Guidelines’ primary focus remained on crimes involving drugs and guns, the USSC ensured that all criminal defendants would be subject to sentence enhancement. The result was the implementation of a completely new federal sentencing regime in 1987, which substantially increased the penalties for most federal crimes.
Before Booker, the Guidelines required federal judges to enhance the sentence of a convicted criminal beyond the maximum sentence prescribed by statute, based on aggravating factors and the offender’s criminal history. Moreover, the judge, sitting alone, determined the extent to which factors listed in the Guidelines applied in a particular case. The judge’s discretion was limited, however, because the Guidelines thoroughly address most imaginable factors a judge might consider in arriving upon a sentence. Though the Guidelines contain a provision which allows judges to depart from dictated sentences, such departures were uncommon before Booker because they were only allowed when a relevant mitigating or aggravating factor was not addressed by the Guidelines. Judges were required to submit explanations for their departures that clearly articulated why the Guidelines insufficiently addressed the circumstances of the case. On appeal, a judge’s ruling could be overturned if the factors set forth in the explanation "[did] not advance the objectives set forth" in the Guidelines.
The rigidity in this process has been the source of most of the criticism of Guidelines. Criminal defense attorneys have been outspoken in their opposition to the system, which they argue does not adequately consider mitigating factors. Further, they contend that application of the Guidelines has lead to unduly harsh sentences and the overuse of prison as a penalty. They also say that the Guidelines have given even more power to prosecutors, by increasing the incentive for defendants to plead guilty.
Judges themselves have complained that the system ties their hands, preventing them from issuing sentences that truly take account of an individual’s circumstances. By focusing on the amount of drugs or money involved in a case, the Guidelines deemphasize a judge’s personal perspective. In many cases this prevents judges from tailoring the punishment to the criminal and may prevent goals like marginal deterrence and rehabilitation from being fully realized.
The USSC’s own data tends to support these criticisms. In the first full year the Guidelines were in effect, the total amount of prison time handed-out by federal judges nearly doubled. The increase in incarceration levels affected all types of convicted criminals. White collar defendants became far more likely to serve prison time instead of being sentenced to alternative penalties like probation. The total prison population substantially increased, destroying the notion that white collar criminals were allowed to serve their sentences in “club fed” facilities. Those convicted of drug crimes, including first time offenders and those convicted of simple possession, became the most likely to be imprisoned, and now encompass the largest segment of those incarcerated for federal crimes. As of December 2004, over one-third of the federal prison population was comprised of first-time, non-violent offenders.
The Road to Booker
Beginning in 2000, the Supreme Court decided a line of cases that had most legal commentators wondering when, not if, the Court would invalidate the Guidelines. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court considered New Jersey’s hate crimes statute, which allowed the enhancement of sentences beyond the statutory maximum upon the judge’s determination that the crime was racially motivated. Such a finding only needed support by a preponderance of the evidence. The Court set aside the statute, holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Recognizing that its decision could have an effect on the Guidelines, the Court made a point of mentioning that it was not ready to address that issue yet.Apprendi’s logic was reaffirmed in Ring v. Arizona, 536 U.S. 584 (2002). The Ring Court struck down an Arizona law which required trial judges to determine the presence of aggravating factors required to impose the death sentence. The Court noted that regardless of how increases in sentences were labeled—as “sentence enhancements,” “aggravating factors” or otherwise—facts that justify such increases must be found by a jury beyond a reasonable doubt.Then, in Blakely v. Washington, 124 S.Ct. 2531 (2004), the Court invalidated Washington State’s mandatory sentencing guidelines based on its reasoning in Apprendi. Washington’s sentencing guidelines, like the Federal Sentencing Guidelines, allowed a judge to enhance a sentence after determining the existence of a fact by the preponderance of the evidence. Blakely, coupled with Apprendi and Ring, set the stage for what many thought would be a relatively simple ruling in Booker striking down the Federal Guidelines. Booker was decided as expected, but it came with an unexpected twist.
The Pronouncement By the CourtBooker and its companion case U.S. v. Fanfan, arose on relatively common facts. The defendants in both cases were convicted of drug offenses. Booker was convicted for possession with the intent to distribute 92.5 grams of crack, while Fanfan was convicted for possession with intent to distribute 500 grams of cocaine, along with conspiracy. Both defendants had their sentences enhanced beyond the statutory maximum after their trial judges found by a preponderance of the evidence that they possessed a greater quantity of drugs than was proven at their trials.The cases presented two questions to the Court. The first was simply whether sentence enhancement under the Guidelines was unconstitutional. The second was what should be done if such a constitutional violation was found.Five Justices from both ideological ends of the Court—Scalia, Thomas, Souter, Ginsburg, and Stevens—answered the first question affirmatively. In an opinion by Justice Stevens, the Court relied heavily on Apprendi and Blakely to support its holding that the Guidelines, as they were being applied, deprived convicted criminals of their Sixth Amendment right to have every fact which increases a sentence beyond the statutory maximum proven beyond a reasonable doubt to a jury. Although this aspect of the decision was expected, the dissenters disputed whether it was justifiable. Four justices—Breyer, O’Conner, Rehnquist, and Kennedy—dissented. Justice Breyer’s dissent argued that trial judges have always been given discretion to determine the manner in which a criminal should be punished. He explained that the Guidelines only give trial judges a framework within which to exercise this discretion. However, without the Guidelines, judges need not tie their sentencing decisions to any objective criteria. Sentences would be based solely on a judge’s personal assessment of a criminal—even if that assessment was founded on racial, economic, or cultural prejudices.Perhaps because she shared many of Justice Breyer’s concerns, Justice Ginsburg joined the four dissenters to form a majority on the question of what the remedy should be applied to resolve the conflict between the Sixth Amendment and the Guidelines. In another opinion by Justice Breyer, this time for the Court, he explained that the statutory provision that made the Guidelines mandatory, 18 U.S.C. ß3553(b)(1), must be severed and excised in light of the Court’s constitutional holding. The Court also severed and excised 18 U.S.C. ß 3742(e) from the Guidelines. That section mandated that courts of appeal review sentences made pursuant to the Guidelines de novo for adherence to the Guidelines’ tenants. According to the opinion, the severance of these sections rendered the Guidelines "effectively advisory," requiring judges to consider them, but allowing departures whenever the judge deemed fit. On appeal, courts should apply an "unreasonable[ness]" standard of review. The majority decided that this remedy was a better choice then imposing a requirement of sentencing by jury (Justice Steven’s choice), or invaliding the Guidelines completely.
Criminal Sentencing After Booker
Though legal scholars will continue to debate the wisdom of the Court’s unique decision in Booker, judges and criminal lawyers have already begun the process of reforming federal sentencing procedures to conform to its requirements. After only two months of this process, it has become clear that Booker provides little guidance on how to resolve the many legal issues it has raised.
At least one such issue appears to have been resolved—whether Booker applies retroactively. Retroactive application of Booker would allow those sentenced before the case was decided to receive lessened sentences upon proof that their sentencing judges elevated their punishments in an unconstitutional manner. However, relying on the Supreme Court’s decision in Schiro v. Summerlin, 124, S. Ct. 2519 (2004), the 6th, 7th, and 11th Circuits have already determine that Booker does not have retroactive effect. In Schiro, the Court found that its ruling in Ring did not apply retroactively. Schiro’s applicability to Booker will likely be recognized by all jurisdictions soon.
However, not all of the problems raised by Booker will be resolved so easily. Perhaps the most important issues raised by Booker are those involving the future of criminal sentencing. The most obvious of these is how a judge should go about sentencing after Booker. The Booker Court did not clearly state that all disputed facts considered at sentencing must be proven under the criminal "beyond a reasonable doubt" standard. Indeed, without further judicial clarification, it appears that judges are still able to elevate sentences using the civil "preponderance of the evidence" standard, as long as those sentences fall within the range of punishments authorized by federal criminal statutes. Thus, the day-to-day considerations of judges may not change at all. The only difference in this process is that a judge who elevates a sentence must be mindful of the new "unreasonable[ness]" standard and make certain that the jury has made a finding on any facts which would support the enhancement of the sentence. In fact, there is already case law arguing that the Guidelines should still be followed closely. In US v. Paladino, No. 03-2296 (7th Cir. Feb. 25, 2005), Judge Posner argued that any departure from the Guidelines should be specifically justified by the trial judge and that any such departure should be reversed on appeal if found to be unreasonable.
Notwithstanding the questions Booker has raised, the case may be a blessing in disguise for the criminal justice system. Booker has prompted immediate reactions from all three branches of government and spurred a scholarly dialogue about the future of criminal sentencing. The USSC recently held hearings at which it evaluated prison statistics, sentencing trends, and other data in contemplation of its recommendations for changes to the statutory federal sentencing scheme. Several Circuit Courts of Appeal have en banc reviews in the works that will examine what is required to protect Sixth Amendment rights at sentencing. Though departing attorney general John Ashcroft was quick to denounce Booker, his replacement Alberto Gonzalez has expressed a desire to work toward a criminal justice system that reserves prison for violent and career criminals and reintroduces the idea of rehabilitation for all others. The input and swift action of all of these parties will be necessary to fulfill Booker’s promise of a better sentencing procedure.