Politics & Policy

Supreme Sentencing Scotch

Justice system chaos and, perhaps, a mortal blow to determinate sentencing schemes.

In a decision of monumental importance for the justice system, the Supreme Court on Wednesday held the federal sentencing guidelines unconstitutional.

The decision had been expected by most court watchers since late June 2004, when the Court decided Blakely v. Washington, holding that the sentencing scheme followed by the state of Washington–which was similar in all meaningful particulars to the federal guidelines–violated the constitutional guarantee of trial by jury on an indictment returned by a grand jury.

At issue here are so-called “determinate sentencing” systems. Prior to this innovation, a judge was free to sentence a defendant to any term permitted under the statute of conviction. So, a defendant found guilty of one count of distributing narcotics could be sentenced to no time, or up to 20 years, or anything in between–without regard to, for example, the quantity of drugs involved, the number of prior convictions of the defendant, whether a gun had been used in the crime, etc. This led to wide sentencing disparity: A middling offender unfortunate enough to land before a tough law-and-order judge might get 20 years for a minor offense, while a recidivist whose case was assigned to a lenient judge might get a slap on the wrist for a serious crime.

grid sense

Such indeterminate sentencing was eliminated in the federal system by the Sentencing Reform Act of 1984 which, in 1987, ushered in the U.S. sentencing guidelines. Thenceforth, sentencing was handled by a complex formula–plotted on a grid. Offense factors (e.g., weight of drugs, dollar-amount of fraud, obstruction of the investigation, use of a weapon, whether the defendant played a major or minor role, etc.) were assigned values and plotted on the vertical axis offender-history factors (e.g., number of prior convictions, whether the crime was committed while the defendant was on parole, etc.) were similarly weighted and plotted on the horizontal axis. The point at which the “offense level” intersected on the grid with the “criminal history category” determined the “sentencing range.” Instead of, say, 0-to-20 years, this was now, say, 41 to 51 months–which is to say, the judge’s discretion was tightly cabined.

Judges were still permitted to sentence above or below the sentencing range–to the top or bottom of the wider spate of years set forth in the statute of conviction. But they could do so only upon identifying a proper basis to “depart.” This meant only if they could identify a fact about the case so peculiar that it removed the case from the “heartland” of similar cases. As intended by Congress–but not as played out in practice–this departure power was to be a narrow escape hatch. Because crimes tend to fall into patterns, and because the commission created to promulgate and manage the guidelines issued guidance on most conceivable facts about most existing offenses, it was assumed that departures would be exceedingly rare. By and large, the narrow guidelines-sentencing range, not the broader statute of conviction, would be used to impose sentence.

This created more certainty for defendants considering whether to plead guilty or go to trial. In the vast majority of federal cases, the sentence is decided solely by the judge, not by agreement of the parties. Experienced practitioners can make reasonably reliable predictions, but they cannot promise a defendant exactly what his sentence will be upon conviction. It is for the judge to decide. Under the guidelines though, a defendant who technically faced, say, up to 20 years’ exposure under the statute now could be reasonably confident–within a space of mere months–exactly how much time he would have to do if he decided to plead guilty. Since the guidelines were designed to reward guilty pleas (which spare the court, the prosecution and the public the enormous expense of a trial), it also permitted the defendant to quantify in a concrete way the benefits of pleading guilty rather risking the harsher sentence sure to stem from conviction by a jury.

More importantly, in terms of the overall integrity of the justice system, the guidelines eradicated the scandal of wildly disparate sentences imposed on similarly situated defendants. Harsh judges would still sentence harshly and lenient judges leniently, but since adherence to the guidelines was mandatory, now those differences would be within an acceptable range of months–not an unjustifiable range of years that raised at least the perception of rampant disregard for principles of due process and equal protection of law.

But there was a major problem. Guideline sentencing, while it took away much of the court’s sentencing discretion, also vested in the court responsibility for the fact-finding that would be the core component of sentencing. This created a rift between what is supposed to drive the sentence, namely, the judgment of the community reflected in the grand jury’s allegation of specific crimes in an indictment and the petit jury’s verdict of guilt on some or all of those crimes at trial; and what was actually driving the sentence namely, the judgment of the judge based on facts neither charged nor proved at trial. Under the guidelines, judges unilaterally applied evidence (that was often never presented to the grand or trial jury) to guidelines (that were irrelevant to the elements of crimes those panels had considered).

Take, for example, a defendant who has five prior burglary convictions and now stands suspected of a bank robbery. Typically, the prior burglaries are not placed before the grand or petit jury in the bank robbery case. Why? Because the defendant is presumed innocent of the bank robbery, and in our system, we want the defendant charged and convicted only if there is proof beyond a reasonable doubt that he actually robbed the bank. Permitting him to be charged or convicted on weak evidence simply because his track record indicates he is a bad guy would undermine the presumption of innocence. It is evidence of the charged crime, not indicia of a propensity to do wrong, that is dispositive.

But this hardly means the track record is of no importance at all. Traditionally, if the defendant is convicted of the bank robbery, a judge will take it into account in imposing sentence–along with other factors (good and bad) that the grand and trial juries will never have heard about, such as family circumstances, drug use, bad acts that have not resulted in convictions, etc. This is because sentencing is importantly different from trial. Trial is about liability, asking: did the defendant commit the charged conduct? Sentencing is about a defendant’s entire history; it asks: what does society require in the way of punishment to induce this defendant, and others who might engage in similar conduct, to refrain.

The problem arises, though, that the guidelines are mandatory and thus the factors that the judge alone considers often have far more impact on the sentence than whatever it is that the defendant was actually accused and convicted of doing. Judges, furthermore, need only make their sentencing findings based on a preponderance of the evidence–not the more demanding “beyond a reasonable doubt” standard that juries must apply to the key issues in a criminal trial.

Consequently, under the guidelines, a defendant convicted by a jury of a relatively minor narcotics offense might see his sentencing level increase geometrically by a unilateral judicial finding that he is a multiple felon, or that his seemingly hum-drum crime was tied to a gargantuan enterprise involving far more drugs. A defendant convicted of some other routine offense might see his sentence dramatically inflated if the judge finds–unbeknownst to the jury–that the crime was related to terrorism.

This has led to the criticism that the guidelines have turned sentencing into the tail that wags the dog of conviction. More significantly, it has also led to constitutional concerns. In our system, a defendant has a right to be advised of the charges against him in an indictment, and to be convicted only if the jury finds him guilty beyond a reasonable doubt of every essential element of the crime(s) expressly alleged in the indictment. If, to the contrary, a defendant ends up by the force of law–i.e., the guidelines–serving substantial prison time based on conduct that was neither charged in the indictment nor found by the jury at trial, there is a viable argument that these core rights have been infringed.

a maze of a decision

Essentially, that is what the Supreme Court ruled Wednesday, in a joint decision regarding a pair of cases called United States v. Booker and United States v. Fanfan. The ruling is voluminous, featuring two different majority opinions (one by Justice Stevens, the other by Justice Breyer) announcing, respectively, the court’s conclusion that the guidelines violate the constitution and the remedy that it held was required to address that violation. There are, in addition, a maze of cross-cutting concurrences and dissents.

Time will be needed to sort out what it all means, but suffice it to say that the Court was deeply fractured here. A bare majority (Justices Stevens, Scalia, Souter, Thomas, and Ginsberg) was convinced of the constitutional violations, an exercised minority (Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Breyer) was both persuaded that the greater sin lay in disparate sentencing and anxious to preserve whatever could be preserved of the guidelines given the majority ruling. Justice Ginsburg, the swing vote, appears to have been particularly torn: Joining one camp to find a violation and the other to try to minimize the fallout.

Bottom line: The guidelines have lost the force of compulsory law, but they have not become irrelevant–at least not yet. For now, they will continue on, but they will literally be guidelines rather than binding commands. Sentencing judges will be made aware of them and obligated to consider them but not compelled to follow them. Judges will once again be relatively free to sentence at the top or bottom of the statute of conviction, regardless of what the guidelines prescribe. But that guidelines prescription, it is clearly hoped, will have considerable influence on judges by standing as a barometer of what is “reasonable.”

The decision will also inspire some frenetic litigation, at least initially. Last term’s Blakely ruling, which adumbrated but did not impel Wednesday’s rulings in Booker and Fanfan, caused immense uncertainty. Many sentences have been delayed awaiting guidance from the Supreme Court. Many others have been imposed assuming (erroneously it turns out) the continued viability of the guidelines. Those cases will now all need to go forward or be revisited.

Additionally, there are thousands of cases on direct appeal in which defendants have been sentenced under the guidelines and will now seek to have those sentences vacated so they may be re-sentenced to–they hope–less severe terms. Finally, even defendants whose appeals have been exhausted for many years will no doubt flood the district courts with habeas corpus petitions, seeking to have guidelines sentences reviewed and vacated. The Supreme Court’s opinion today appears to discourage that avenue–but that does not mean the prisoners won’t try, or that district courts and U.S. Attorney’s offices throughout the country will not be burdened mightily in the coming months.

What can be said amid all this unrest is that the great 1980s experiment of determinate sentencing has suffered a crushing blow. It remains to be seen whether it can survive, or whether it can be resuscitated by Congress in a manner that heeds the Supreme Court’s muscular construction of the rights to indictment and jury trial.

Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.

Most Popular

Trump vs. Biden: A Rundown

One week out, the contrasts are worth assessing. Foreign policy Biden so far has issued no substantive critique of Trump’s foreign policy other than banalities that Trump’s comportment and unpredictability have offended allies and tarnished America’s reputation. But who exactly, according to Biden, is ... Read More

Trump vs. Biden: A Rundown

One week out, the contrasts are worth assessing. Foreign policy Biden so far has issued no substantive critique of Trump’s foreign policy other than banalities that Trump’s comportment and unpredictability have offended allies and tarnished America’s reputation. But who exactly, according to Biden, is ... Read More

The Pollster Who Thinks Trump Is Ahead

The polling aggregator on the website RealClearPolitics shows the margin in polls led by Joe Biden in a blue font and the ones led by Donald Trump in red. For a while, the battleground states have tended to be uniformly blue, except for polls conducted by the Trafalgar Group. If you are a firm believer only in ... Read More

The Pollster Who Thinks Trump Is Ahead

The polling aggregator on the website RealClearPolitics shows the margin in polls led by Joe Biden in a blue font and the ones led by Donald Trump in red. For a while, the battleground states have tended to be uniformly blue, except for polls conducted by the Trafalgar Group. If you are a firm believer only in ... Read More
Law & the Courts

The Kavanaugh Court

If Justice Barrett votes as her mentor Justice Scalia did, she will be part of an ascendant conservative majority on the Supreme Court. What kinds of decisions can we expect from this majority? Short answer: Ask Brett Kavanaugh. Contrary to how journalists frame each seat change on the Court, comparing the new ... Read More
Law & the Courts

The Kavanaugh Court

If Justice Barrett votes as her mentor Justice Scalia did, she will be part of an ascendant conservative majority on the Supreme Court. What kinds of decisions can we expect from this majority? Short answer: Ask Brett Kavanaugh. Contrary to how journalists frame each seat change on the Court, comparing the new ... Read More
Law & the Courts

Some Counterfactual Thinking

Election Day is one week away. Can you believe it? On the menu today: contemplating what would be different, and what would be the same, if Ruth Bader Ginsburg had retired in 2013 instead of staying on the Court until her death earlier this year; a couple of flubbed words on the campaign trail; yes, people really ... Read More
Law & the Courts

Some Counterfactual Thinking

Election Day is one week away. Can you believe it? On the menu today: contemplating what would be different, and what would be the same, if Ruth Bader Ginsburg had retired in 2013 instead of staying on the Court until her death earlier this year; a couple of flubbed words on the campaign trail; yes, people really ... Read More
Law & the Courts

Whose Seat?

Amy Coney Barrett is confirmed. And I think there are two little things to say about it. The first is that we very likely have in Barrett the true successor to Antonin Scalia on the Court. Barrett clerked for Scalia and her articulation of his philosophy is probably the most faithful on the court. Justices ... Read More
Law & the Courts

Whose Seat?

Amy Coney Barrett is confirmed. And I think there are two little things to say about it. The first is that we very likely have in Barrett the true successor to Antonin Scalia on the Court. Barrett clerked for Scalia and her articulation of his philosophy is probably the most faithful on the court. Justices ... Read More