SUPREME COURT MAKES MINIMUM CHANGES TO
FEDERAL SENTENCING
Decision Avoids Wholesale Downward Shift in Sentences
Today's Supreme Court decision in United States v. Booker will
significantly change federal sentencing, but it will not produce the
wholesale reductions in sentences that the defense had sought, according
to the Sacramento-based Criminal Justice Legal Foundation. "A majority
of the Court seems to have been determined to limit the damage,"
said Kent Scheidegger, CJLF's Legal Director. "There are going
to be a lot of disappointed criminals in federal prisons today."
In a series of decisions going back to 2000, the Supreme Court has
struck down sentencing systems where sentences are determined by facts
found by judges when those facts authorize a sentence greater than the
maximum allowed by law for the crime itself. After last year's decision
in Blakely v. Washington, federal courts have been divided on
whether the Sentencing Reform Act of 1984 (SRA) was invalid.
The SRA was enacted as the result of a bipartisan consensus that similarly
situated defendants were receiving widely disparate sentences based
on which judge was assigned to the case. The commission created by that
act produced a complex system of sentencing factors, known as the Sentencing
Guidelines. One subsection of the Act, 18 U.S.C. section 3553(a), made
the sentence depend on a number of factors, including the Guidelines,
but subsection (b) of the same section made the Guidelines mandatory,
with very limited exceptions.
The defense argued that the Blakely decision required that every defendant
receive no more than the Guidelines maximum based on the facts found
by the jury. In Booker's case, for example, he would have to be sentenced
for 50 grams of "crack," which is the minimum for the crime
of which he was convicted, rather than his actual possession of more
than 10 times that amount. Under the defense argument, facts mitigating
the crime and bringing a sentence down rather than up could still be
found as before.
The Supreme Court rejected the creation of such a lopsided system as
contrary to the intent of Congress. "Congress would not have enacted
sentencing statutes that make it more difficult to adjust sentences
upward than to adjust them downward," Justice Stephen
Breyer wrote in the second of two opinions for the Court. The majority
decided instead to strike the subsection making the Guidelines mandatory,
and it left intact the subsection making them one of the factors to
be considered. The Court also struck down the recently enacted section
of the PROTECT Act that required federal courts of appeals to review
"de novo" (i.e., re-decide without deferring to the trial
judge) any decision to depart downward from the Guidelines sentence.
The decision strengthens the hand of trial judges relative to everyone
else in the system. The Court rejected having juries find additional
facts and rejected empowering prosecutors to keep facts from the sentencing
judge by not alleging them. The Court also limited the power of appellate
courts to change sentences.
"Although limiting the damage, this decision does aggravate the
problem of disparate sentencing according to the personal preferences
of the trial judge," said CJLF's Scheidegger. "That was the
problem Congress tried to fix in 1984, and it needs to act again to
prevent a resurgence of that problem." One needed change, according
to CJLF, is to reinstate the "de novo" review by appellate
courts of any sentence outside the Guidelines range. "Any departure
from the Guidelines should be based on the facts of the case, not the
random selection of the judge. Justice should not be a lottery,"
said Scheidegger.
Today's decision left unanswered questions about its application to
prisoners whose initial appeal is already final. In a case from Arizona
decided last June, Schriro v. Summerlin, the Supreme Court decided
that the jury trial requirement of this line of decisions is not retroactive
to such cases. However, the Arizona case did not involve facts found
only by a preponderance of the evidence, rather than beyond a reasonable
doubt. Prisoners who claim that this distinction makes today's decision
retroactive may still be precluded if they did not raise the objection
at their initial sentencing or on their first appeal.
CJLF Legal Director Kent Scheidegger is available for comment at
(916) 446-0345.
The Criminal Justice Legal Foundation helped win nine decisions during
the Supreme Court's 2003/04 term, including Schriro v. Summerlin.
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