United States v. Booker
The United States Supreme Court on Wednesday January 12, 2005 rendered the long awaited decision regarding the constitutionality of the U.S. Sentencing Guidelines (Guidelines). In an interesting decision, two separate groups of Justices essentially rendered two opinions in the one case, the first determining that the Guidelines violate the Sixth Amendment, to the extent that they allow judicial rather than jury fact finding to form the basis for the sentence, and the second determining that the Guidelines can continue to be used, as long as they are advisory rather than mandatory.
The background for this decision relates back to the June 2004 decision in Blakely v. Washington, where the Court in a groundbreaking opinion held that Washington State’s Guidelines violated the Sixth Amendment guarantee of a trial by jury in criminal cases. Washington’s guidelines allowed judges rather than juries to make certain findings of fact that increased an offender’s sentence. The Court held that a judge may impose a sentence solely on the basis of facts reflected in the jury verdict or admitted by the defendant.
The U.S. Sentencing Guidelines, like Washington State’s allow judicial fact finding to play a role in determining the sentence. After, Blakely the federal courts were immediately faced with the prospect that the Guidelines also violated the Sixth Amendment, thus raising the thorny question of whether all sentences determined under the Guidelines were unconstitutional. Thankfully, the Court granted quick review of two cases that raised the issue, Booker and United States v. Fanfan.
As was set forth above, not surprisingly, a majority of the Court composed of Justices Stevens, Scalia, Souter, Thomas and Ginsburg found the same Sixth Amendment violation that they found in Blakely. The reasoning followed the Scalia opinion in Blakely, by holding that “Any fact which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”
In practical terms, a defendant appears for sentencing after having either pled guilty, or having been convicted by a jury. In entering a guilty plea, the defendant must allocute under oath the facts that establish th defendant’s guilt. Likewise a jury must make findings of fact, at a minimum, facts necessary to establish that the legal elements of the crime were proven. Fast forwarding to sentencing, the Guideline sentencing range requires a finding as to the “criminal history category” and “offense level”. Particularly, with the offense level, the sentencing Judge is required to make factual findings that are often beyond the proven facts including evidence that would not be admissible at trial.
The second part of the Court’s holding dealt with whether the Guidelines by virtue of the Sixth Amendment problem are null and void. The Court’s answer was surprisingly, no. This answer was given by a different majority comprised of Justices Breyer (a former Chairman of the Sentencing Commission), Rehnquist, O’Connor, Kennedy, and Ginsburg (the one common denominator). This majority sought to determine whether Congress would have intended the Guidelines be defunct, or would it have intended that a partially altered set of Guidelines continue to be in effect.
The Court believed that Congress would have intended the Guidelines to survive in a way that allowed them to comply with the Sixth Amendment. That was accomplished by the Court determining that the Guidelines now become advisory rather than mandatory. Thus the Guidelines help judges choose an appropriate sentence between a statutory maximum and minimum, but no longer dictate the result. Therefore judges must consider the Guidelines, but are not bound to follow them. This is an outcome that few predicted. In fact Justice Stevens noted in his dissent from the second holding, “Neither the Government, nor the respondents, nor any of the numerous amici (friends of the court) has suggested [this].”
The guidelines were intended to create uniformity, certainty and parity in sentencing. Put simply, they were meant to ensure that similarly situated defendants were treated more or less alike. Prior to the Guidelines, the result depended on the particular judge that imposed sentence. The Guidelines by constraining judicial discretion were designed to change that by making sentencing a matter of rational decision making, not just the luck of the draw as to the sentencing judge.
Now that the guidelines are merely advisory, it will be interesting to see if they will continue to serve their purpose. Will judges feel constrained to apply them or will they ignore them. An educated guess is that most judges will continue to follow the guidelines except in those special cases were a judge feels strongly enough to depart from the guidelines, and set forth the reasons for the departure.
The most likely beneficiaries of the new Guideline approach will be those charged with white collar offenses. White collar defendants prior to the Guidelines generally stood a better chance of avoiding jail time. Under the Guidelines the discretion of the sentencing judge was taken away, forcing many judges to impose sentences of incarceration in white collar cases based upon the application of the Guidelines. With that discretion being returned, it will be interesting to see if sentencing judges become more willing to consider non custodial type sentences for first time white collar offenders.
The ball has been passed squarely into the lap of Congress to decide whether a new sentencing system needs to be developed. It will be interesting to see what happens next.