How to End Interbranch Warfare on Criminal Sentencing

The Supreme Court's bold re-engineering of federal sentencing law might work reasonably well as a matter of policy.

The birthing process was protracted, ugly, and unprincipled. But the baby doesn't look as bad as expected. And it may do OK unless it's strangled in its crib by Congress or abused by the judiciary.

I refer here to the bold re-engineering of federal sentencing law produced by two discordant 5-4 Supreme Court majorities on January 12 in United States v. Booker, perhaps the most important criminal justice decision in decades. The first section of the decision, written by Justice John Paul Stevens, held that some applications of the system of mandatory sentencing guidelines that Congress created in 1984 violate defendants' jury-trial rights. The second section, written by Justice Stephen Breyer, remedied this problem (which Breyer didn't see as a problem) by making the guidelines advisory instead of mandatory. The bottom line, at least in theory, is to return to federal judges the broad sentencing discretion that the 1984 law had sought to end.

Stevens and Breyer each dissented from the section written by the other. And hardly anyone thinks that both sections of Booker make sense as constitutional law, except Justice Ruth Bader Ginsburg—the only one who joined both sections. She did not explain how she reconciled them.

Constitutional principles aside, the advisory sentencing guideline system created by the Breyer opinion might work reasonably well as a matter of policy, if Congress gives it a chance. The key would be for the federal appeals courts and the Supreme Court to enforce a measure of consistency by making muscular use of their vaguely defined power to overturn "unreasonable" sentences.

The immediate danger is that some House Republicans—who have long trashed judges as being soft on crime and see Booker as a judicial thumb in the eye of Congress—will quickly emasculate the decision by pushing through crude new mandatory minimum sentencing statutes.

Such laws—which would lack the multifactored fine-tuning of the United States Sentencing Commission's guidelines—would leave trial judges with far less discretion than they had before, let alone what they would have under Booker. Mandatory minimum statutes would also doom thousands of nonviolent, nondangerous defendants to long prison terms, as Congress has already done to many small-time drug offenders.

Fortunately, a move is afoot to head off a mandatory-minimum stampede by seeking a bipartisan compromise designed to come as close as possible to reinstating the 1984 law's system of mandatory sentencing guidelines without running afoul of Booker.

"We've only got a short time to do this," says a House Republican staffer. "Breyer has stuck it in the face of Congress, and if we don't craft this compromise, the House is going to come up with a raft of mandatory minimums, and it's going to be nuclear warfare throughout this Congress."

A compromise bill would seek to replicate the bipartisan consensus for curbing unfair sentencing disparities that gave rise to the 1984 act in the first place. For decades before then, federal criminal statutes gave trial judges extremely broad discretion to sentence defendants convicted (say, for mail fraud) under the same criminal statutes to penalties ranging from probation to a long prison term. The sentences served by similar defendants varied greatly, depending on their trial judges' highly subjective assessments of the relative seriousness of the offense (say, the amount of money taken), the culpability of the defendant (was he a ringleader or a lowly accessory?), prior criminal record, and other factors.

The 1984 act and subsequent guidelines changed this by requiring judges (with narrowly defined exceptions) to impose sentences within guideline ranges determined by a point system, with specific values assigned to a long list of factors bearing on the seriousness of the crime and the defendant's role, as well as prior convictions. The statute created the United States Sentencing Commission to draft the guidelines, which were issued in 1987 and have been repeatedly amended since.

The constitutional flaw identified by the Stevens opinion was that the 1984 law violated defendants' jury-trial rights by giving to judges, rather than juries, the role of finding the facts used to increase the sentencing guideline range for some convicted defendants.

"Any fact (other than a prior conviction) 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," Stevens held. He was joined by fellow liberals Ginsburg and David Souter and by conservatives Antonin Scalia and Clarence Thomas.

Freddie Booker, for example, could have received a guideline sentence of between 210 and 262 months based on his prior convictions and the jury's finding that he had possessed, with intent to distribute, more than 50 grams of crack. But the judge increased the sentence to 360 months, based on his own finding that Booker had possessed an additional 566 grams of crack and had obstructed justice. This increase was unconstitutional, Stevens held, because these facts had not been proved to a jury beyond a reasonable doubt.

Breyer, dissenting from the Stevens opinion, argued that "history does not support a 'right to jury trial' in respect to sentencing facts." But Breyer also had the last word, with the help of the three others who dissented from the Stevens opinion plus Ginsburg. These five justices rejected Stevens's proposed remedy, which was to have juries determine any facts used to increase a defendant's guideline range. Instead, Breyer held, it would be more practical and more consistent with congressional intent to make the guidelines advisory in all cases. At the same time, Breyer struck down, as inconsistent with the now-advisory nature of the guidelines, a 2003 amendment in which Congress had required unusually strict appellate review of departures from the guideline ranges. Instead, Breyer held, appeals courts should overturn sentences only if "unreasonable."

So it was that in the name of protecting defendants' jury-trial rights (the Stevens opinion), while preserving the 1984 law's intent to reduce disparities by curbing judicial power (the Breyer opinion), the Court increased judicial power to sentence defendants to unusually long (or short) prison terms. Which happens to be the policy change that Breyer, one of the Sentencing Commission's founding members, has advocated for many years—persuasively, in my view.

Down in the criminal-sentencing trenches, the brand of discretionary sentencing engineered by Breyer—who had helped draft the 1984 law as a congressional staffer and then the guidelines as a Sentencing Commission member—seems unlikely to bring back the huge sentencing disparities of the pre-1984 era. Most judges are in the habit of following the guidelines and will probably continue to do so in most cases. And the appeals courts should—although it's unclear that they will—rein in the minorities of especially soft and especially tough judges.

Many experts suggest that the best congressional response would be to wait and see how the judges use their newfound freedom. But the best may be the enemy of the good here: The aroused House Republicans hardly seem disposed to wait. And aside from their long-standing bias in favor of harsh sentences, they have a valid concern that a minority of federal judges really are soft on crime—softer than most of their colleagues, at least—and will seize the chance to reintroduce sentencing disparities unless kept in line.

But mandatory minimum statutes themselves operate as engines of unfairness and disparities, by hammering many minor offenders just as hard as hard-core criminals, among other things. Republicans who understand this have a better idea: Reinstate both the mandatory nature of the guidelines and strict appellate review of downward departures, while avoiding any clash with Booker by raising the top of every guideline range created by the Sentencing Commission to the statutory maximum.

For those of us who think that many of the guidelines are themselves too harsh, and who know that a small number of judges would love to be even harsher, this proposal seems worse than Breyer's advisory guidelines. But the compromise proposal seems better than the likely alternative: more mandatory minimum statutes. And it has a sweetener.

While judges would technically be free to go as high as the statutory ceiling, Congress could direct the Sentencing Commission to state as a matter of policy that courts ordinarily should not impose prison terms more that 25 percent above the bottom of the defendant's guideline range. And the appeals courts could be encouraged to overturn sentences above those ceilings when the grounds given are unreasonable.

"We don't want disparities created by hard-ass judges any more than by soft judges," explains the House Republican staffer. "Even though I might agree with the hard-asses, sentencing disparities are bad for the country."