The National Pulse

Future Factors


The landmark decisions, one issued in June and the other in January, tossed out state and federal sentencing regimes that allowed judge–without juror participation–to increase punishments by finding facts that went beyond the elements of crimes charged by prosecutors.

The court twice held that such systems violate the Sixth Amendment right to a jury trial. The first to go was a guideline based state system in Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004). The federal system, also based on guidelines, met its demise in United States v. Booker, 125 S. Ct. 738 (Jan. 12).

Though the federal system killed in Booker differs from most state sentencing schemes, the decision nevertheless likely will press some state legislatures to determine whether Booker applies to them. “Most states are at that point now,” says Barbara Tombs, executive director of the Minnesota Sentencing Guidelines Commission.

Neither Booker nor Blakely attacked guidelines themselves. But the Booker court added an air of uncertainty with a separate remedy: demoting the federal sentencing standards to an advisory capacity. The court held that judges still must consult the guidelines in the spirit of ensuring similar treatment for similar defendants convicted of the same offense.

Crucial Differences

State legislators apprehensive about criminals running the streets because of unconstitutional sentences doubtless will be tempted to overhaul their systems. But many state legislatures easily could overdo it, trying to match their sentencing guidelines with what they perceive as constitutional under Booker. In fact, most states’ guidelines differ from those of the federal system. Many are simpler and don’t allow much elbow room for judges to find facts outside the original charges.

That is a crucial difference. Unlike state regimes, federal sentencing pre-Booker relied heavily on conduct that prosecutors never charged, let alone presented to jurors for factual determinations. At sentencing, judges had only to reach factual conclusions regarding uncharged crimes–real conduct, as courts call it–by a preponderance of the evidence rather than by the tougher reasonable doubt standard that applied to jury verdicts.

That’s how Wisconsin drug dealer Freddie J. Booker’s case wound up in the Supreme Court. A jury convicted Booker in 2003 of possessing and distributing crack cocaine. Booker faced a little less than 22 years in prison when the 92.5 grams of cocaine police seized at his arrest and extensive prior record were factored into the elaborate mathematical formula used to calculate presumptive sentences under the guidelines.

But the sentencing judge factored in another 20 ounces of cocaine that Booker told detectives he had sold before his arrest. The judge determined that Booker had obstructed justice by perjuring himself at trial. Though Booker never was charged with those offenses, let alone convicted, they were enough to jack his sentence up to 30 years.

Justice John Paul Stevens explained in the Sixth Amendment holding that the court accepted Booker in response to a 20 year legislative trend toward stiffer punishments: “The effect of the increasing emphasis on facts that enhanced sentencing ranges, however, was to increase the judge’s power and diminish that of the jury. It became the judge, not the jury, that determined the upper limits of sentencing, and the facts determined were not required to be raised before trial or proved by more than a preponderance. As the enhancements became greater, the jury’s finding of the underlying crime became less significant.”

State criminal statutes, however, are considerably less complex than their federal counterparts. Moreover, the kind of conduct federal prosecutors traditionally held back for sentencing purposes typically must be charged as an element of a crime for jury consideration in state schemes. For example, if use of a firearm would increase a state defendant’s sentence, prosecutors would have to charge it as part of the offense–say, robbery–and prove it to jurors beyond a reasonable doubt.

“In our state, you can only be sentenced on what you’ve been convicted of,” says Minnesota’s Tombs. The state’s mandatory guidelines should survive both Booker and Blakely with only slight increases in the range of possible sentences, she says. Those changes would account for the rare case with aggravating factors that call for tougher punishment than the norm, but would have required otherwise unconstitutional judicial fact finding to get there.

The Booker remedy, offered by Justice Stephen G. Breyer, recognizes that Congress ultimately will have the last word on what kind of sentencing system the federal courts end up with. Experts urge Congress to look to the states, some of which have had guideline systems that predate the federal ones, which went into operation in 1987. “There’s a lot we can learn from state systems,” says University of Minnesota law professor Richard S. Frase. “There’s a lot of experimenting there, and that experimenting becomes much more important following Blakely and Booker.”

The largest challenge for states may arise in mustering political support across party lines and among the competing interest groups with stakes in the court and prison systems. As Alabama’s attorney general, Bill Pryor had to overcome that obstacle in 1998 when he began moving his state toward sentencing reform. Those efforts ended with a recommendation for an advisory guideline system that loosely resembles that advocated by the Supreme Court in Booker.

Alabama at the time was staring down the barrel of a federal lawsuit over its jam packed prison system, whose inmate population had grown from 5,000 in 1980 to more than 28,000 in 2003. Fortuitously, the burgeoning population became a lightning rod that attracted not only ad vocates for inmates but also law enforcement representatives, victims rights advocates, judges, prosecutors and prison officials.

“Although in Alabama most politicians promised to be tough on crime, I found many of the Alabamians with the toughest perspectives on crime and punishment were among the most frustrated of all citizens with our criminal sentencing policies,” says Pryor, now a judge on the Atlanta based 11th U.S. Circuit Court of Appeals.

Legislation backed by Pryor, the judiciary and other key justice and prison system participants established the Alabama Sentencing Commission, which recommended a flexible advisory guideline scheme that would avoid the complexity of the rigid federal model the Supreme Court condemned in Booker. Commission members hope legislators will adopt the proposed guidelines when they convene this spring.

Alabama’s proposal does not include a right to appeal a sentence, which the Booker court counts on to keep federal sentences consistent and reasonable. Sentencing Commission chair Joseph A. Colquitt says that providing an avenue for appeal could needlessly complicate matters, because that aspect of the system already has withstood the test of time. In all but the most extreme abuses of discretion, Alabama historically has barred appeals of sentences.

“That’s never been a right in this state,” says Colquitt, a retired state trial judge and a law professor at the University of Alabama. “As long as the sentence fell within the range, it was a matter of judicial discretion. It was a lawful sentence, and there was no appeal.” Colquitt says Alabama sentencing judges will gain a better idea of what constitutes acceptable punishment by looking at data on sentencing trends assembled by the commission. The commission also expects peer pressure among judges to keep sentences in line.

Meanwhile, at least one former federal judge hopes Congress will leave the courts alone and give them a chance to work on the appeal backed advisory system urged by Breyer. John S. Martin Jr. resigned his Southern District of New York trial judgeship in 2003 after Congress enacted legislation that made it nearly impossible for federal courts to issue lighter sentences than those required by the old mandatory guidelines.

“Hopefully,” says Martin, “Congress won’t jump in too quickly, and we can see how the federal courts develop that system.”

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