The dust is settling on the U.S. Supreme Court’s decision yesterday in United States v. Booker and United States v. Fanfan that the federal sentencing guidelines are unconstitutional because they violate a defendant’s Sixth Amendment right to be tried by a jury.
Congress enacted the guidelines almost 20 years ago on the theory that the guidelines would standardize prison sentences and make them fairer nationwide. However, the law of unintended consequences took over. As demagogues began advocating long prison sentences, the guidelines evolved largely into an arbitrary and capricious mess that unwisely restricts judicial discretion in sentencing, leading to absurd sentences in cases such as in the sad case of Jamie Olis. The SCOTUS decisions, set forth in two 5-4 rulings, gives broader discretion back to federal judges by relegating the guidelines to advisory in nature.
Despite the demagogic posturing “to be hard on crime” that inevitably follows such a Supreme Court ruling, the decision is the right one. Earlier this year, the American Bar Association’s Justice Kennedy Commission, a distinguished panel of legal scholars and jurists, recommended repealing the mandatory sentences and restoring guided discretion for judges in sentencing, which allows judges to consider the unique characteristics of offenses and offenders that warrant increased or decreased prison time.
Moreover, apart from the troubling moral issues relating to capricious sentencing, such sentencing has also caused practical problems. The harsh sentences that were being meted out under the guidelines has caused big problems in the federal prison system where, according to the Bureau of Prisons, more than half of the 180,000-plus people in federal institutions are there for drug law violations. Most are small-time and nonviolent offenders who are serving long sentences pursuant to the myopic guidelines. Annual federal incarceration costs are estimated at $26,696 per inmate, which translates to about $4 billion annually.
The Supreme Court previewed yesterday’s ruling last year by striking down in Blakely v. Washington the State of Washington’s sentencing guidelines that were similar to the federal guidelines. Both sets of guidelines directed judges to boost sentences based on exacerbating factors such as the defendant playing a leadership role in a crime, acting with deliberate cruelty, or the infamous “market effect” of the crime. The standard for deciding whether to include these “enhancements” under the guidelines was merely a preponderance of the evidence as determined by the judge, rather than the “beyond a reasonable doubt” standard that juries are required to use in convicting a defendant. Yesterday’s ruling held that that mandating such enhancements violated the constitutional right of defendants to a trial by jury.
Unfortunately, the Supreme Court majority that decided that issue could not reach a consensus on whether the guidelines should be overturned entirely or simply rendered advisory in nature. So, a new five-justice majority in a second opinion held that the guidelines should stay almost entirely intact, except for a few provisions that made them mandatory. The second decision also gives federal appeals courts specific guidance on reviewing disputed sentences. The key determinant is the “reasonableness” of the original sentence, although it’s far from clear how district courts will interpret that concept in the sentencing context.
Although yesterday’s decisions are helpful to federal defendants whose sentences are currently under review, the decisions will not result in an onslaught of appeals relating to past sentences meted out under the guidelines. The Supreme Court dashed those hopes by making clear that its decision will not apply retroactively to sentencing decisions that had reached final resolution. Of the estimated 180,000 federal prisoners, only several thousand have cases on direct review, which means that most federal prisoners will not be able to seek a shorter sentence, at least for time being. Moreover, the vast majority of federal sentences are doled out under plea bargains in which the defendant is required by the plea agreement to waive the right to challenge the sentence.
As noted in yesterday’s post, Professor Berman’s blog is the best place to review more thorough analysis of the implications of these decisions. Take a look there over the next few days as he and other sentencing guideline experts provide their views on the implications of these decisions.