As Fruit Flies Are To Genetics,
The U.S. Supreme Court’s Sentencing Decisions Are To Law

Introduction

The fruit fly is a small creature, easy to grow in the laboratory, that reproduces every two weeks. Due to its short generation time, fecundity and simplicity it has been used as a model organism by geneticists for close to 100 years.

The U.S. Supreme Court’s sentencing decisions are the fruit flies of American jurisprudence. In the span of one human generation—from 1988 to the present—federal sentencing has undergone a series of drastic mutations. These mutations were structural in nature and they touched upon many of the basic issues in American law—

 -Rules vs. Standards

-Discretion vs. Predictability

-Courts vs. Legislatures

-Legislatures vs. Agencies

-The Judiciary vs. The Executive

-Judges vs. Juries

-Trial Judges vs. Appellate Judges

-Parsimony vs. Waste

-Elements vs. Facts

-Proof Beyond A Reasonable Doubt vs. Proof By A Preponderance

Historical Overview

Prior to 1988, sentencing in the federal courts was much as sentencing in the New Hampshire state courts is today. Federal judges had virtually unreviewable discretion to sentence defendants up to the statutory maximum—typically set at five, ten or twenty years for federal felonies. Appellate judges had essentially no role in the process and prosecutors could only gain so much through charge bargaining. The amount of time that federal inmates would actually serve was determined by the U.S. Parole Board.

Federal judges thus made individualized sentencing decisions based on the unique facts of each case. Both parties were given the opportunity to present evidence and argument at sentencing.

Liberals and conservatives alike complained about sentencing disparities under this “eggs for breakfast” sentencing scheme. United in the belief that the defendant’s fate should not depend on whether he appears in Courtroom A or across the hall in Courtroom B, both parties in Congress passed the Sentencing Reform Act of 1984 (SRA).

The SRA gave birth to the U.S. Sentencing Commission, an independent body consisting of Article III judges, private attorneys (with former careers in the government), and other experts. It was tasked with drafting Sentencing Guidelines that set forth the relevant criteria for sentencing in every federal case. It’s work product—the U.S. Sentencing Guidelines—fills two large volumes. The SRA required sentencing judges to impose sentences consistent with the rules, exceptions, policy statements, and cross-references in the Guidelines.

The SRA also eliminated the federal parole system, thereby establishing a regime of determinate sentencing. Thus, federal defendants were to be sentenced under the Guidelines to a set term of imprisonment (assuming that they did not qualify for probation) and released at the conclusion of that term, less statutory good time credit (approximately 52 days per year). Defendants could also be sentenced, consistent with the Guidelines to a term of post-imprisonment supervised release to take the place of parole.

The criminal justice liberals who supported the SRA hoped and expected that the establishment of sentencing guidelines would not only reduce unfair disparities in sentencing but also reduce the prison population. They were wrong. The federal Bureau of Prisons had about 30,000 inmates in its custody in the mid-1980s. Today it has over 200,000.

In any event, the Guidelines replaced judicial discretion with a checklist that judges were required to follow. The Guidelines established a base offense level for all manner of offenses and grounds for adjusting the offense level upward and downward. The Guidelines also established rules for calculating prior criminal history. For each combination of offense level and criminal history, the Guidelines generated a sentencing range. The high end of the range is typically about a year and a half longer than the low end (although this varies at different parts of the grid). The Guidelines include grounds for departing upward and downward from the established sentencing range. Beyond this, both the SRA and the Guidelines, warned judges not to depart except for extraordinary circumstances.

The Courts of Appeal were given jurisdiction to review criminal sentences, for correct determination of the Guideline range and departure criteria. They did so with vigor, creating a judicial gloss on many of the Guidelines provisions. The Sentencing Commission responded with annual (and at times) more frequent revisions and policy statements.

When the Guidelines were first drafted, the sentencing ranges were designed to reflect, rather than alter the average sentence that similarly situated defendants received nationwide prior to the Guidelines. Thus, the Guidelines ranges theoretically took account of the “ordinary” circumstances of the great majority of criminal defendants, e.g. family responsibilities, mental health issues, youth, old age, drug dependency, etc. Accordingly, the Guidelines provide that, ordinarily, sentencing judges should not consider such circumstances as grounds to depart from the established sentencing range. Absent circumstances not adequately taken into account by the Guidelines—e.g., extraordinary facts—the individual defendant’s personal circumstances should be considered only in determining whether he should be sentenced towards the low or high end of the range.

At the same time, the Guidelines encouraged pleas by granting a generous downward adjustment for “acceptance of responsibility” that was freely available to those who pled guilty, but generally unavailable to defendants who went to trial. Thus, although the Guidelines stated that taking a case to trial was not grounds for a harsher sentence, in reality this often proved to be the case.

The Guidelines became effective in 1988, during the dawn of the crack cocaine epidemic. Congress, responding to public concerns about crime, passed a number of Draconian mandatory minimum sentences and instructed the sentencing commission to mandate sentences near the statutory maxima for certain types of offenses committed by so-called career offenders. These harsh sentences applied to drug and firearm felonies, the bread and butter of the federal criminal caseload.

The one way out from underneath these mandatory minimum sentences, and the most reliable way of gaining a downward departure generally, was to provide substantial assistance in the investigation and prosecution of others. A motion for downward departure on these grounds had to be filed by the prosecutor, but once it was filed, the judge was free to grant a departure of any size, even more than the government requested.

From Mistretta to Feeney

Although not all federal judges shared this view, in the later 1980s a large number of district court judges viewed the Sentencing Guidelines as anathema. Close to 200 district court judges ruled that the Guidelines were and unconstitutional on separation of powers and excessive delegation grounds. In Mistretta v. United States, 488 U.S. 361 (1989) the U.S. Supreme Court rejected these arguments and the Guidelines became a seemingly permanent fixture in the federal criminal justice system.

Some federal district court judges—typically those with sufficient seniority and irascibility—stopped sitting on criminal cases altogether. Others grew accustomed to the Guidelines system and, as time went on, a great many new judges first became acquainted with criminal sentencing under the Guidelines regime.

Yet judges continued to grant departures from the Guidelines for individual circumstances that were not adequately taken into account by the Guidelines. In United States v. Koon, 518 U.S. 81 (1996), a case involving one of the police officers convicted in the Rodney King beating, the U.S. Supreme Court held that such departures could only be reviewed under the deferential abuse of discretion standard. This emboldened some district court judges to grant more frequent and liberal departures from the Guidelines.

Congress responded in 2000 with the Feeney Amendment which was designed to both drastically restrict and deter judges from granting downward departures. In 2003, Attorney General Ashcroft ordered all federal prosecutors to agree to downward departures only in “rare” circumstances and to actively oppose defense motions for downward departures in all other cases. Ashcroft also ordered all federal prosecutors to charge “the most serious, readily provable offense” in every case.

Under the Feeney amendment and the Aschcroft memo, the Guidelines did not merely cabin judicial discretion, they straight jacketed it.

From Apprendi To Gall

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court began down a path that would have a profound effect on the Guidelines system. In Apprendi the Court held that a New Jersey hate crimes statute could not be enforced because it allowed a judge (rather than the jury) to determine facts which established the grounds for an enhanced sentence, and to determine those facts by a preponderance of the evidence, rather than by proof beyond a reasonable doubt. The Sixth Amendment entitles criminal defendants to both a jury trial and proof beyond a reasonable doubt. Those Constitutional guarantees could not be swept away by the simple expedient of classifying a grounds for imposition of sentence as a “sentencing enhancer” rather than an “element of the offense.”

Apprendi led to Blakey v. Washington, 542 U.S. 296 (2004) in which the U.S. Supreme Court struck down the Washington State sentencing guidelines on the same Sixth Amendment grounds. The following year, in United States v. Booker, 543 U.S. 220 (2005), the Court held that mandatory application of the U.S. Sentencing Guidelines, as provided for in the SRA, also violated the Sixth Amendment.

However, the Booker opinion is actually a set of two opinions, written by two different majorities of the U.S. Supreme Court. In the first opinion, one majority struck down the mandatory Sentencing Guidelines. In the second opinion, another majority held that under the SRA, the Guidelines must still be consulted as advisory, but that sentencing judges could then impose a reasonable sentence consistent with the goals of federal sentencing set forth in 18 U.S.C. §3553(a).

Perhaps as a result of something similar to Stockholm Syndrome, the initial judicial response to Booker was for federal judges to call the Guidelines advisory but to continue sentencing as usual. The Courts of Appeal continued to exercise sentencing jurisdiction, looking, per Booker, to determine whether a sentence was reasonable. While the federal circuits used different and conflicting formulations, they essentially held that the Guidelines were entitled to substantial weight and that non-guidelines sentences would, therefore, be reviewed carefully.

In 2007, the Supreme Court decided United States v. Kimbrough, ___ U.S. ___, ___ S.Ct. ___, 2007 WL4292040, (Dec. 10, 2007) and United States v. Gall, ___ U.S. ___, ___ S.Ct. ___, 2007WL 4292116 (Dec. 10, 2007). These cases established that, while the guidelines are entitled to “serious consideration,” a defendant need not prove an “extraordinary circumstances” for a non-guidelines sentence. Gall, at *7. Thus, while the Guidelines range is “the starting point and the initial bench mark,” a sentencing court “may not presume that the Guidelines range is reasonable,” Gall, at *7, and must instead consider all of the statutory sentencing factors to determine whether they support the sentence requested by the either party. Gall, at *7.

Of equal importance, the Kimbrough and Gall decisions limit the role of the Courts of Appeal in the sentencing process. Non-guidelines sentences are now reviewed for abuse of discretion, thereby providing some insulation for trial judge discretion.

How will the District Courts and Courts of Appeal approach sentencing under the now truly advisory Guidelines? Time will tell.