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The Supreme Court's Sentencing Guidelines Decision:
Its Logic, and Its Surprisingly Limited Practical Effect


Friday, Jan. 21, 2005

The Federal Sentencing Guidelines are dead. Long live the Federal Sentencing Guidelines. This about sums up the Supreme Court's ruling last week in United States v. Booker.

There, the Court struck down the Federal Sentencing Guidelines as unconstitutional. Under the Guidelines, judges were to sentence defendants based on all the facts surrounding the defendant's offense -- not merely those found by a jury at the defendant's trial or admitted by the defendant as part of a guilty plea. According to the Court, this raises a Sixth Amendment problem: The right to trial by jury implies the right to have a jury - not a judge - find the facts that increase the sentence over otherwise-applicable maximums.

Many in the legal community have treated this decision as momentous. I am not among them. Yes, it strikes down the federal sentencing regime -- which has been in place for the better part of two decades. But as a practical matter, I believe Booker will affect the process of sentencing much more than it affects final outcomes.

Indeed, I expect that the vast majority of all federal defendants will receive the same, or nearly the same, sentence under the Court's new decision as they would have had the Guidelines been upheld. Moreover, I predict that the differences that do crop up will mostly be at the low end of the sentencing scale, in cases where the Guidelines mandated short prison terms, but where judges will now give a sentence of probation. Such cases would typically involve minor crimes and first-time offenders.

In short, the alarm bells can be turned off. Yet Booker remains interesting - if not momentous. For one thing, it represents a significant change in federal criminal law. In addition, it is rather revealing about the problems that arise when the Court operates under intense time-pressure.

For these reasons, it is worth reviewing the good, the bad, and the ugly of the Court's action.

The Strange Split on the Court that Led to Two Majority Opinions

Let's start with the ugly: the Court's bizarre decision. In a single case, the Court issued two majority opinions, written by two different justices who are basically at war with each other philosophically with respect to criminal sentencing. Each decision was 5-4 - and the only Justice who joined both was Justice Ginsburg.

In the first half of the opinion, Justice Stevens -- writing also for Justices Scalia, Thomas, Souter, and Ginsburg -- declared the Guidelines unconstitutional. He did so based on the Sixth Amendment "trial by jury" argument I stated earlier. Under the Guidelines, judges would hear additional evidence bearing on sentencing and could find additional facts based on this evidence -- facts that often had a dramatic impact on the guideline sentence a defendant would receive. The majority found this violated the Sixth Amendment.

In the second half of Booker, the Court addressed how to remedy this problem with the Guidelines. This half of Booker was written by Justice Breyer -- on behalf also of Justices Rehnquist, O'Connor, Kennedy, and Ginsburg. These Justices (except, of course, Ginsburg) not only disagreed with the first half of the opinion, but, more generally, completely disagree with the whole line of cases on which that half of the opinion was based.

Justice Breyer rejected the remedies suggested in the briefing. Some had suggested that the best remedy was to have courts convene sentencing juries to find additional facts to be used by judges in making their guideline calculations. Others had suggested that sentencing should proceed under the Guidelines without additional judicial fact-finding - so that a sentence would ultimately (and constitutionally) be based only on those facts found by the jury at trial or admitted by the defendant when pleading guilty.

Breyer's remedy, however, was simply to make the Guidelines advisory rather than mandatory. Under Breyer's revised system, in passing sentence, judges will still consider all the circumstances surrounding a defendant's criminal offense, not just the facts found by a jury-or admitted by the defendant. However, in deciding what sentence to give based on all these facts and circumstances, the judge will now only consult the Guidelines for advice as to what sentence is appropriate. Previously, they would have been bound by the sentencing ranges the Guidelines mandated.

One might reasonably ask: How does this solve the constitutional problem of having judge-made factual findings determine sentences? After all, judges will still be basing sentences on their own view of the facts, not simply on the facts found by a jury or admitted by a defendant.

The answer is that defendants really do not have a constitutional right to have sentencing facts found only by a jury. The right they have is much narrower.

The Narrow Sixth Amendment Right That the Booker Decision Recognized

Under Breyer's approach in Booker, the right of defendants is limited to this: Judges cannot make factual findings that will increase sentences beyond the sentencing range the Guidelines would mandate if only the jury-found or admitted facts were considered.

There are two basic ways to cure this problem. One is simply to do away with judicial fact-finding at sentencing. But Breyer and the other Justices who joined him eschewed this route, as I noted above.

The other is to do away with the aspect of the Guidelines that is causing the problem: The Guidelines set a mandatory initial guideline range based on the jury-found or admitted facts - but they also allow that range to be exceeded if subsequent judicial fact-finding justifies a higher sentence. This is the option Breyer (and the Court majority) chose.

Because the Guidelines are only advisory, the only mandatory law that now constrains the sentencing judge comes from the statutes that set the minimum and maximum sentences for a given offense. Of course, the judge cannot exceed those maximums - but they never would have, in the first place. To do so would have violated the statute.

The second half of the opinion also requires that sentencing decisions be reviewed on appeal for "reasonableness" - but that is, presumably, a pretty easy standard to meet.

The Philosophical Conflict Between the Two Halves of The Opinion

The way the two halves of the opinion work together is quite simple: They do so practically, but from a philosophical perspective, they utterly fail to do so.

In the first half of the opinion, the Court seems to be saying that the Constitution prohibits ratcheting up criminal sentences on the basis of judge-found facts: It is juries who are supposed to be doing the relevant fact-finding.

But in the second half of the opinion, the Court (via a very different majority) solves this problem by keeping the power of judges to sentence on the basis of their own fact-finding, and failing to increase juries' fact-finding power one bit.

Indeed - as if to defy the first half of the opinion - the Court not only retains judicial power, but actually increases it. It does away with the Guidelines that had restricted judges' discretion about what sentences they could impose based on the facts they found. As noted above, the result is that judges are now constrained by much less law - they now must only sentence within the very wide ranges the offense statutes establish.

Why Didn't Justice Ginsburg Write the Entire Opinion, To Ensure Consistency?

This may seem bizarre, but it's a logical result of Court dynamics. One group of justices was in control of the underlying constitutional doctrine - those who joined the first half of the opinion. Another group of justices who do not believe in that constitutional doctrine nevertheless got hold of the power to decide - in the second half of the opinion -- to remedy the constitutional problem identified by the first group.

Usually when this kind of split occurs - that is, when a single justice holds the swing vote between two blocs of four, and is the only justice in the majority for every aspect of the decision - this swing justice (Ginsburg, here) writes the whole opinion for the Court. Different parts of that opinion are joined by different sets of justices. But the opinion as a whole benefits from having a single author - one with a unified vision - rather than two authors with opposing visions. And that, in turn, creates greater coherence in the law.

But this did not happen here. And I can take an educated guess why. It seems likely that the majority for the first half of the opinion coalesced first, and that at least some of the Justices were undecided as to what remedy ought to be instituted in the opinion's second half. Perhaps Justice Ginsburg was one of those undecided. Or perhaps she favored an approach other than the one Breyer favored - of rendering the Guidelines' advisory. At some point during the opinion drafting process, however, she changed her mind, and joined Breyer - thus giving him a five-vote majority in favor of making the Guidelines advisory.

In another case, perhaps, the Court could have reassigned the whole opinion to Ginsburg - the justice in the best position to reconcile the views of the two competing groups she was straddling. But Justice Stevens, perhaps, was already drafting the first half of the opinion. And Justice Breyer - the architect of the second half - was a logical author for that half. In addition, the Court must have felt pressure to decide Booker quickly to remove the cloud of doubt over criminal sentencing.

No wonder, then, that, two majority opinions rather at odds with each other resulted.

For doctrinal purists (and I tend to be one) Booker's internal incoherence is a bit upsetting. But setting this aside, the end result is perfectly reasonable. In addition, from a pragmatist's standpoint, the system it puts in place will be, in practical effect, probably not very different from -- and even somewhat better than -- the system it replaces.

The Arguments Made by Critics of the "Advisory Guidelines" Remedy

The Guidelines were intended to solve the problem of sentencing disparity - that is, of different judges giving very different sentences to similarly situated defendants. In the pre-Guidelines world, what sentence a defendant got could greatly depend on the luck of the draw - that is, on the judge to which he had happened to be randomly assigned.

Critics of Booker complain that the opinion will reintroduces this disparity and, in so doing, defeat the purpose of the Guidelines, and recreates the very problem the Guidelines were intended to solve.

The same critics also complain that it is absurd to suggest, as Breyer does, that the "advisory Guidelines" solution is the remedy Congress would have preferred. After all, they say, Congress wanted to constrain judicial discretion; having advisory Guidelines (even with reasonableness review) comes perilously close to having no Guidelines at all. Congress, they suggest, would have opted to keep the mandatory Guidelines, even if that meant creating sentencing juries to find the facts the Guidelines deem relevant.

These critics may be right about Congress. This is an exercise in mind-reading that defies any certitude.

But their more basic criticism of the second half of Booker - that is, their idea that we are suddenly back in "the bad old days" of wildly disparate federal criminal sentencing -- is not convincing.

The Guidelines Never Promoted As Much Sentencing Uniformity As Was Claimed

To begin, it's worth noting that the uniformity achieved by the Guidelines in the past can be easily overestimated.

Under the Guidelines system, prosecutors enjoyed considerable ability to massage how a defendant would be treated under the Guidelines. They could select carefully which charges to bring, and what evidence would be presented at sentencing. Thus, the Guidelines created the possibility of behind-the-scenes "prosecutorial disparity" masking an ultimate disparity in sentencing.

In addition, experienced judges knew how to get around the guideline ranges when they really wanted to. Long ago, in United States v. Koon, the Court recognized judges' considerable ability to "depart" from the Guidelines (up or down) when a case involved a circumstance that the Guidelines did not fully take into account. Under Koon, it was not too hard for smart judges to find ways around the Guidelines when they thought circumstances required it. And that meant that, in many cases, a defendant's fate still depended to a significant degree on which judge the defendant drew - just as it had in the pre-Guidelines world.

But will making the Guidelines advisory - as Booker does - only amplify current sentencing disparity? As I will explain, I think it will not.

The Critics Are Wrong: We Won't Return to the "Bad Old Days" of Federal Sentencing

To begin with, I think the vast majority of judges, in the vast majority of cases, will take the advisory Guidelines seriously. Thus, they will impose sentences very close to what the Guidelines would have called for, when they were mandatory.

Federal district judges are incredibly overworked. They'll be thankful for the guidance the Guidelines provide. And they'll use them as the touchstone for defining the "reasonable" sentence in most cases.

Perhaps judges will now depart more frequently from the Guidelines - imposing particularly low or high sentences in unusual cases that seem to merit them. If so, we need not be dismayed.

The Guidelines were far from perfect. The sentencing ranges established by the sentencing commission tended to be harsh overall, and especially harsh with respect to immigration and drug crime sentencing. Probationary sentences, even for pretty minor offenses, were disfavored. Simply put, the commission's judgments reflected the political temper of the times.

Thus, while the Guidelines were designed to achieve uniformity in sentencing, they did not always also achieve proportionality and fairness. Some additional judicial discretion may promote these important qualities.

Finally, the Court's suggested "reasonableness" review does remain as a remedy to curb the excesses of maverick judges: If different judges suddenly start giving troublingly different sentences to similar defendants committing similar crimes, the courts of appeals -- which will be watching closely, to be sure -- can always step in.

Granted, a more rigorous standard of review than "reasonableness" previously applied. And now, under the reasonableness standard, judges will be able to reach their own sentencing judgments with somewhat less accountability. But judges have gotten used to and conditioned by Guidelines sentencing; they know Congress is watching. And, accordingly, I expect that they will wield their new, additional discretion quite responsibly.

In short, the Court's internal tug-of-war may not have produced a tidy opinion, but it may well have reached a reasonable result.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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