Reconciling the Booker Conflict: A Substantive Sixth Amendment in a Real Offense Sentencing System

Abstract

In United States v. Booker, 543 U.S. 220 (2005), the conflict between a substantive Sixth Amendment right to trial by jury and a system of individualized sentencing came to a head. On the one hand, a substantive Sixth Amendment, in which the jury stands as a bulwark between the individual and the state, requires a jury role in all findings of fact that lead to, and increase, the sentence. On the other hand, real offense sentencing requires the judge to find additional aggravating and mitigating factors related to the crime of conviction in order to individualize the sentence for each offender.

While the majority in the substance opinion (Booker I) espoused the virtues of the jury as a bulwark between the individual and the state and a check on the imposition of sentences by judicial actors, another majority in the remedy opinion (Booker II) nullified the jury role in favor of maintaining a system of individualized, real offense sentencing. This article argues that the conflict between a substantive Sixth Amendment right and a system of individualized sentencing was not inevitable and that it is not irreconcilable. Specifically, this article argues that the conflict grew out of a fundamental mismatch that resulted from a separation of functions sentencing framework from the rehabilitation era of sentencing that understood sentencing to be separate and distinct from guilt determination. Under this framework, the jury determined guilt, and the judge, alone, determined the sentence. During rehabilitation era real offense sentencing, this separation of functions framework was consistent with a substantive understanding of the Sixth Amendment because, in theory, judges sentenced based on the necessary level of treatment, not on the basis of the appropriate level of punishment. Therefore a role for the jury as a bulwark between the individual and the state at sentencing was unnecessary. When retribution replaced rehabilitation as the goal of sentencing during the guidelines era, a jury's role in sentencing under the Sixth Amendment became vital, but the separation of function framework persisted. As a result, a conflict between judge-based individualization of sentences and a substantive understanding of the Sixth Amendment developed.

The two goals can be reconciled by putting aside the separation of functions framework. Sentencing, under the current retributive punishment model, should be understood as a component of the trial for which a jury role is imperative. This does not mean that the judge's function should be merely ministerial. However, any discretion to sentence above the maximum of the crime of conviction should be subject to jury oversight and check. This article will advocate for such a system of jury check on judicial discretion at sentencing.

Keywords: Sentencing, United States v. Booker, Sixth Amendment, Real Offense Sentencing, jury sentencing, jury