Beyond Bandaids: A Proposal for Reconfiguring Federal Sentencing after Booker

Abstract

The federal criminal sentencing system is in the throes of change due to the Supreme Court's holding in United States v Booker that juries, not judges, must find any fact that increases a defendant's maximum sentencing exposure under the original mandatory Federal Sentencing Guidelines, and its judicial amendment of the Sentencing Reform Act to transform the Guidelines, at least for the moment, into an essentially advisory system. The only question is whether the guidelines system is going to change only a little, or a lot, or something in between. This Article lays out a proposal for something in between.

The proposal advanced here rests on six premises. First, sentencing guidelines are a good idea and an improvement on systems that rely on unguided judicial sentencing discretion. Second, the Federal Sentencing Guidelines have failed of their promise because of flaws in their basic design. Third, despite the Supreme Court's ruling in Booker, the Guidelines system could survive either virtually unchanged (if Congress adopts the simple expedient of removing or declaring advisory the tops of the existing guideline ranges) or with relatively modest changes (if the courts interpret Booker to give the now-advisory guideline ranges presumptive status or if the Sentencing Commission were to slightly simplify the Guidelines and subject aggravating Guidelines factors to proof by plea or jury trial). Fourth, while each of these modest legislative or judicial alterations to the original Guidelines design has some immediate appeal as a response to the systemic disruption caused by Blakely and Booker, all of them are undesirable as permanent measures precisely because they would reinstitute a fundamentally flawed regime that needs a major redesign. Fifth, all of the other suggested permanent replacements for the current Guidelines (such as voluntary or purely advisory guidelines, a system of presumptive maximum sentences, or increased use of hard mandatory minimum sentences) suffer from crippling flaws, either in design or political viability. Sixth, what is required in a long-term replacement for the current federal guidelines is a system which: (a) is consistent with the Supreme Court's new Sixth Amendment jury trial jurisprudence; (b) is workable by lawyers and judges; (c) addresses the most fundamental design defects of the current system, particularly those relating to institutional imbalances between sentencing actors; and (d) has some reasonable prospect of political viability.

This Article proposes a simplified sentencing table consisting of nine base sentencing ranges, each subdivided into three sub-ranges. The base sentencing range would be determined by combining offense facts found by a jury or admitted in a plea with the defendant's criminal history. A defendant's placement in the sub-ranges would be determined by post-conviction judicial findings of sentencing factors. No upward departures from the base sentencing range would be permissible, but defendants might be sentenced below the low end of the base sentencing range as a result of an acceptance of responsibility credit or due to a downward departure motion. Both the government and the defendant would retain rights of appeal of post-conviction judicial findings of fact and of misapplications of the law.

This revised sentencing guidelines system would increase the role of the jury in setting federal criminal sentences while retaining a role for post-conviction judicial fact-finding. It would reduce the number of legally consequential decision points necessary to individual sentencings while incorporating the work done by Congress and the Sentencing Commission over the past several decades in identifying aggravating and mitigating factors thought relevant to punishment. Most importantly, it would promote a healthier institutional balance between Congress, the Sentencing Commission, the judiciary, and the Department of Justice.

Keywords: Booker, Blakely, Apprendi, Federal Sentencing Guidelines, criminal law, sentencing, punishment, sentencing commission, judges, prosecutors, judiciary, prison, judicial discretion, Congress

JEL Classification: H10, H50, K10, H72, K14, K42, K40, K41