Judges and Judiciary
Jan. 14, 2005
Let's Wait to See What Results From Sentencing-Guidelines Decision
Forum Column - By Rory K. Little - Two days ago, a five-justice majority of the U.S. Supreme Court ruled in United States v. Booker that the federal sentencing guidelines are unconstitutional insofar as they require judges to aggravate sentences based on facts not found by a jury. The majority was the same "odd-bedfellows" five (Scalia, Thomas, Stevens, Souter and Ginsburg) that decided Blakely v. Washington last June and Apprendi v. New Jersey in 2000. So this ruling was no surprise.
Rory K. Little
Joseph W. Cotchett Jr. Professor of Law, UC Hastings College of the Law
Email: littler@uchastings.edu
Rory clerked at the U.S. Supreme Court and also served as an associate deputy attorney general in 1996-97
By Rory K. Little
Two days ago, a five-justice majority of the U.S. Supreme Court ruled in United States v. Booker that the federal sentencing guidelines are unconstitutional insofar as they require judges to aggravate sentences based on facts not found by a jury. The majority was the same "odd-bedfellows" five (Scalia, Thomas, Stevens, Souter and Ginsburg) that decided Blakely v. Washington last June and Apprendi v. New Jersey in 2000. So this ruling was no surprise.
But then, in a switch that suggests second thoughts (never to be voiced) about the constitutional ruling, Justice Ruth Bader Ginsburg joined the dissenting four (Breyer, Rhenquist, O'Connor and Kennedy) to address the remedy. Thus, Booker, 2005 DJDAR 410 (U.S. Sct. Jan. 12, 2005), produced two majority opinions (both joined by Ginsburg, who is the only justice common to both): Justice John Paul Stevens', addressing the constitutional question, and then Justice Stephen Breyer's, addressing the remedy.
The question for the court was: Once the mandatory federal guidelines are declared unconstitutional unless juries rather than judges find the aggravating facts, what should lower courts now do?
Traditionally, when a portion of a statutory scheme is declared unconstitutional, courts must engage in a "severability" analysis: Can the unconstitutional portion be severed from the rest of the statute, leaving a functioning whole? If so, is the remaining system one that Congress would have endorsed, or would Congress have preferred no system at all but rather to address the entire area from scratch?
The artificiality of severability analysis is patent. Who can say with certainty what a majority of 535 members of Congress would have preferred, over 20 years ago, especially when one important aspect of what they plainly did prefer has been stricken?
Nevertheless, the Supreme Court has a responsibility to avoid unnecessarily disrupting complex legislative schemes, particularly when thousands of Americans rely upon them, even when a portion is unexpectedly found unconstitutional. No member of the Booker court suggested that the court should merely declare unconstitutional judicial fact-finding for sentencing and then say nothing more. The remedy question had to be resolved.
The options appeared to be many. First, the court could effectively mandate that federal trial judges empanel juries to find the many facts that can increase a defendant's sentence. This seems plainly beyond anything Congress would have preferred, however, purely on the basis of expense, procedural complexity, and delay.
Significant opposition would have been raised to either requiring prejudicial sentencing-fact evidence to be admitted to the jury considering guilt/innocence, or requiring a second jury trial at the sentencing stage. And jury sentencing would greatly disrupt intelligent plea bargaining for defendants and prosecutors alike. For many reasons, there is simply no evidence that Congress has ever considered, let alone would endorse, a statutory scheme of jury sentencing.
Another course might have been to declare that only unconstitutional applications of the guidelines would be prohibited, with the guidelines otherwise continuing in full force. Although the Department of Justice suggested this "as applied" severability, only Justice Clarence Thomas took it seriously. First, a doctrine of "as-applied severability" finds little support in constitutional precedents. Moreover, the imbalance and potential unfairness of using the guidelines in some case but not others, the "windfall effect" of benefiting only those defendants with the worst aggravating facts, and the unpredictable complexity of the venture, offers no support for it as a system Congress would have endorsed, had it foreseen Booker.
Finally, however, Breyer found a simpler, and more doctrinally sound, mechanism for severance. Booker makes it clear that it is only the mandatory nature of the guidelines that offends the Constitution. As Stevens explained, "everyone agrees that the constitutional issues presented ... would have been avoided entirely if Congress had omitted from the SRA [Sentencing Reform Act of 1984] the provisions that make the Guidelines binding on district judges."
Only one section of the Sentencing Reform Act makes the guidelines mandatory: 18 U.S.C. Section 3553(b)(1). With this section stricken and severed, the remainder of Congress' statutory sentencing scheme can stand and function, at least until and unless Congress decides to draft new sentencing provisions. This remedy is plainly less disruptive than declaring the entire federal sentencing system unconstitutional (that is, not severing), and less "activist" than compelling federal judges to develop, without any legislative authority, an entirely new system of jury sentencing.
This simple, yet Solomonic, solution of merely excising 3553(b)(1) was exactly what Breyer and his four colleagues ordered in Booker. (A related section that incorporates Section 3553(b)(1), relating to standards of review on appeal, was also stricken). None of the parties had suggested it, but its obviousness and elegance cannot be denied (a bit like the Purloined Letter, undiscovered because it was sitting so plainly in the open).
The question now will be, simply, how will lower courts, and Congress, react?
The system in place after Booker is, of course, not what Congress envisioned in 1984. Requiring judges to follow the guidelines in most cases was essential to one important congressional purpose: reducing unwarranted disparities between similar cases.
However, after Apprendi (530 US 466 (2000)) and Blakely (540 US 1174 (2004)), it was obvious that some part, if not the whole, of Congress's intended scheme had to go. Congress never intended jury sentencing, either. It seems quite plausible that a nonbinding, but sophisticated and nuanced, set of guidelines upon which judges can, but need not in every case, rely, achieves the bulk of Congress's 1984 goals.
It is vital to fairly evaluate what remains after Booker. First, federal judges are not free to ignore the guidelines. Rather, the statute continues to require judges to consider them. The great majority of federal judges appointed since 1987 are accustomed to relying on the guidelines and do not relish the prospect of having to sentence as unguided gods. Probation offices will continue to provide reports that outline what precise sentencing ranges the guidelines would advise. It seems fair to predict that most judges will follow the guidelines' recommendations, in most cases. Disparity will continue to be reduced.
In the rare cases where judges decide not to follow the guidelines, there likely will be a reasonable view that the individual facts of those cases support a departure, just as most departures under the guidelines previously have been affirmed. Importantly, the statutory requirement that judges must give "specific reasons" for imposing a sentence different from the guidelines remains (Section 3553(c)(3)). A specific statement of reasons was a major goal of the Sentencing Reform Act, and it is essential to the wisdom of Booker's severability result.
Finally, Breyer's opinion made it clear that appellate courts must continue to reverse departures from the recommended guideline range that are "unreasonable." This means that the outliers, in both directions, will be squelched. Appellate courts must apply this directive responsibly - a number of state jurisdictions have comfortably done so in the past - and not permit wildly disparate sentences to re-infect the federal system.
However, under the mandatory guidelines, even "law-and-order" prosecutors, once appointed to the federal bench, have inevitably confronted a rare case where the guidelines led to an irrationally harsh result. After Booker, this occasional irrational "straightjacket" effect of the guidelines may, happily and not unreasonably, be avoided. In the other direction, a court of appeals should not be shy about finding it "unreasonable" to grant probation to repeat bank robbers, no matter how "rehabilitatable" some say they may be.
It should be stressed that the requirement for judges to give "specific reasons" for their departure sentences should be strictly enforced. Notwithstanding Justice Antonin Scalia's exaggerated claim to the contrary in his Booker dissent, it would be "unreasonable" - indeed, unlawful - for a judge to ignore the guidelines now and simply say, "I disagree with them." Reasonable and specific reasons, consistent with the purposes that still remain in the Sentencing Reform Act, must be given if the guidelines are not followed.
Finally, Scalia correctly notes in his dissent that "no one knows ... how advisory Guidelines and 'unreasonableness' review will function in practice." But this is exactly why it would be imprudent for Congress quickly to enact legislation reactive to Booker. A case that produces two half-majorities and six separate opinions indicates nothing so much as confusion, and there are still powerful arguments that the court simply headed down the wrong constitutional track five years ago in Apprendi.
But given the commitment of the Stevens-Scalia majority on that doctrine, Booker represents a wise and less intrusive result than other alternatives. Congress should give the lower federal courts time to apply the new system. Senators may be pleasantly surprised to find that federal judges still follow the guidelines most of the time - and yet are happier because, in the rare cases where the guidelines do not seem to fit, they can depart, down or up. Appellate courts will reverse the "unreasonable" departures, and the experience of state courts that employ a similar standard - and federal courts employing similar language in, for example, the Fourth Amendment context - suggests that the resulting "common law" of sentencing will be rational and fair. Let's wait and see.
Rory K. Little is a professor of law at Hastings College of the Law in San Francisco.
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