« Social Security: Why Government Investing in Stocks Beats Personal Accounts | Main | Class Conflict in the GOP »

January 13, 2005

Messy Sentencing Decision Reflects Unjust Criminal System

The Supreme Court has made its ruling on the Federal Sentencing Guidelines and the result is... a mess. Both in practice and philosophically. It's a decision that purports to restore the power of juries to decide the facts of a case and limit judge's power, yet in the end actually expands judge's discretion.

I'm still trying to wade through the decision, but anytime you have one majority strike down rules as unconstitutional, then have the dissenting judges (with one switch) decide how to implement the decision, it's going to be a mess. Call it the law review full employment act, since legal scholars will be disecting this decision for years.

What happened to the right to a jury? The basic problem addressed by the Court is this: Legislators in the last few decades began increasing the range of sentences a defendant could receive for the same basic crime. Partly in response to the disparity in sentences emerging from this system, the Congress authorized the creation of a Federal Sentencing Commission and Guidelines that required more uniformity of actual sentences within the overall ranges created by statutory crimes. These administrative guidelines required judges to lengthen the sentences when they found certain facts not knowm to or considered by a jury -- such as in parole reports -- to be true.

As Justice Stevens' core decision states:

As the enhancements became greater, the jury’s finding of the underlying crime became less significant.
Essentially, since the facts most meaningful for deciding the actual sentence were decided by the judge, what had happened to the right of trial by jury?

To illustrate, here is what happened to the defendant in the case, as described by Justice Stevens:

The jury convicted him of possessing at least 50 grams of crack in violation of 21 U. S. C. §841(b)(1)(A)(iii) based on evidence that he had 92.5 grams of crack in his duffel bag. Under these facts, the Guidelines specified an offense level of 32, which, given the defendant’s criminal history category, authorized a sentence
of 210-to-262 months...Booker’s actual sentence, however, was 360 months, almost 10 years longer than the Guidelines range supported
by the jury verdict alone. To reach this sentence, the judge found facts beyond those found by the jury: namely, that Booker possessed 566 grams of crack in addition to the 92.5 grams in his duffel bag. The jury never heard any evidence of the additional drug quantity, and the judge found it true by a preponderance of the evidence.
Now, the original drug statute authorized the 350 month sentence-- it was only the Sentencing Guidelines that had limited judge's original discretion, so it could be argued(and was by the dissent) that the defendant received no sentence that was not authorized by the original jury fact-finding decision.

So that's the confusing philosophical point. Where there is a range of sentences associated with a specific crime, judges inevitably have to exercise some fact-finding to determine what sentence to actually apply for a particular defendant.

But the initial majority decided that since the Sentencing Guidelines were so detailed in what facts would lead to what sentence, they essentially specified elements of different crimes, so the jury should be involved in determining the facts of each such element. This would theoretically restore jury power over sentencing.

Implementation: Okay, that's the solution the initial majority wanted, but Justice Ginsberg switched sides for the implementation half of the decision, so the initial dissenters, led by Justice Breyer, wrote the part of the decision on how to implement the results of striking down the Sentencing Guidelines as unconstitutional.

The initial majority had wanted to keep the Guidelines fully in place, but have juries do the fact-finding associated with sentencing. But the majority for the second half of the decision decided that the best solution was to make using the Guidelines voluntary for judges. Since judges now had nominal discretion to apply any sentence within the original statutory range for any crime, regardless of the particular facts specified by the Sentencing Guidelines, judges were no longer finding elements of a crime but just exercising the discretion granted them by statute.

Perversely, a decision meant to restrict judicial power has expanded it. Judges still have to pay attention to the Sentencing Guidelines, since any deviation from them can be reviewed by appellate judges if they are unreasonable. But juries get no new power out of the decision, which is what the initial Supreme Court majority had wanted.

Why the second majority is not crazy: Aside from the interesting legal discussion of what courts should do when they invalidate part of a law to avoid such seemingly perverse results, here's the practical argument by Justice Breyer justifying this approach. However romantic it might seem to restore the power of the jury over sentencing, the reality is that few cases ever go to a jury. Most cases are plea-bargained. And prosecutors can threaten to charge defendants with different crimes or allege different elements of the crime to extract those plea bargains. As Justice Breyer argued:

any factor that a prosecutor chose not to charge at the plea negotiation would be placed beyond the reach of the judge entirely. Prosecutors would thus exercise a power the Sentencing Act vested in judges: the power to decide, based on relevant information about the offense and the offender, which defendants merit heavier punishment.
So while the decision might ostensibly be about judicial power versus jury power, it's really in practice a debate about judicial power versus prosecutorial power.

The result is a mess because our criminal justice system is a mess. There is no practical way to constitutionally fix a system that is pervaded by crazy drug laws -- which many juries and judges see as harsh and stupid and reflect racism in what crimes are prosecuted -- yet expect uniformity in sentencing. No philosophical rule will change that reality, so the debate between the judges on the perverse results of any option in this case is inevitable.

There will no doubt be new legislation by Congress to address the Court's decision, so this is hardly the last word on the issue. But it does highlight in great detail the practical obstacles to justice in the modern court room.

For more analysis of the decision: See Talk Left, ScotusBlog, Volokh Conspiracy and a whole mess of links at How Appealing.

Posted by Nathan at January 13, 2005 07:01 AM