Criminal Justice Section
Criminal Justice Magazine
Volume 20 Number 1
Chair's Report to Members
By Catherine Anderson
Hon. Catherine L. Anderson is the chair of the Criminal Justice Section and a district court judge in Minneapolis, Minnesota.
Booker Opens Pandora’s Box of Sentencing Uncertainty
While I was writing for the last issue of Criminal Justice, the Supreme Court was hearing oral argument in United States v. Booker. Now, as I begin writing for this issue, the Court has just issued its much-anticipated and momentous decision in that case, holding that the Federal Sentencing Guidelines run afoul of the Sixth Amendment as construed by the Court in Blakely v. Washington, 124 S. Ct. 2531 (2004). ( United States v. Booker, 543 U.S. ___, slip op. at 1-2 (Jan. 12, 2005) (Stevens, J., for the Court).) The Court also held, in a separate majority opinion, that the Sixth Amendment violation is properly remedied by excising the provision of the Sentencing Reform Act that requires the judge to impose a sentence within the Guidelines. ( Id., slip op. at 2 (Breyer, J., for the Court).)
By invalidating mandatory operation of the Guidelines, the Court’s holding calls into question nearly two decades of sentencing policy and procedure. It thus appears that the muddle and uncertainty foreshadowed by Acting Solicitor General Clement at oral argument may indeed come to pass. As Professor Dershowitz notes: “Massive litigation probably will follow, with inconsistent results.” (Alan Dershowitz, Prima Donnas in Robes, L.A. Times, Jan. 17, 2005, at B11.)
The uncertainty is compounded by the dizzying array of opinions and alliances. With six separate opinions in such an important and influential case, the Court’s divergence may further erode public faith in the judiciary and in the rule of law. Even more confounding, of the five Justices who held that severability is the proper remedy for the constitutional infirmity of the Guidelines, four do not even ascribe to the Sixth Amendment jurisprudence established by Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny.
The Booker decision leaves in its wake at least two glaring questions, each likely to be the subject of intensive debate until such time as Congress responds or the Court revisits its holding. The first question arises from the Court’s holding that “district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” ( Booker, slip op. at 21-22 (Breyer, J., for the Court).) Naturally, that holding raises the question of “just how ‘advisory’ the Guidelines are.” ( U.S. v. Wilson, ___ F. Supp. 2d ___, 2005 WL 78552, at *1 (D. Utah Jan. 13, 2005).) In Justice Scalia’s view, “logic compels the conclusion that the sentencing judge, after considering the recited factors (including the Guidelines), has full discretion, as full as what he possessed before the Act was passed, to sentence anywhere within the statutory range.” ( Booker, slip op. at 4 (Scalia, J., dissenting).) One federal judge had to tackle this question the very next day. He concluded: “In all but the most unusual cases, the appropriate sentence will be the Guidelines sentence.” ( Wilson, 2005 WL 78552, at *12.)
The second question, closely related to the first, arises from the Court’s holding that “courts of appeals review sentencing decisions for unreasonableness.” ( Booker, slip. op. at 22 (Breyer, J., for the Court).) What constitutes an “unreasonable” sentencing decision if the weight to be given the Guidelines is unclear? Justice Scalia anticipates that the nebulous standard of review “will produce a discordant symphony of different standards, varying from court to court and judge to judge.” ( Id., slip. op. at 11 (Scalia, J., dissenting).) Equally troubling, the forthcoming case law may effectively restore the Guidelines’ mandatory operation by establishing a rule whereby any sentence not within the Guidelines is presumptively or “per se unreasonable.” ( Id., slip. op. at 10 (Scalia, J., dissenting).)
In Apprendi, the Court observed “the constitutionally novel and elusive distinction between ‘elements’ and ‘sentencing factors’” and noted that “the relevant inquiry is one not of form, but of effect.” ( Apprendi, 530 U.S. at 476.) As case law applying Booker evolves, the form versus effect inquiry may have added relevance because if the coming case law establishes a rule whereby any sentence not within the Guidelines is presumptively unreasonable, the Guidelines will be mandatory in effect if not in form. In that event, the Apprendi line of cases will have come full circle.
Both questions will be moot if and when Congress responds to Booker, but that prospect raises an even more troubling possibility. Last issue, I touched upon the “tough on crime” posturing that often guides legislative decisionmaking. The phenomenon is perhaps epitomized by Congress’s enactment of the Feeney Amendment, which was specifically aimed at limiting downward departures from the Guidelines.
For the time being, federal judges have reclaimed at least some of the sentencing discretion previously enjoyed, but if Congress adopts a “tough on crime” posture in responding to Booker, the Court’s decision may ultimately lead to greater use of mandatory minimum sentences and, accordingly, less discretion, at least on the lower end of the sentencing spectrum. That prospect, however unnerving, is unmistakable, since a legislator intent on being “tough on crime” will attempt to limit discretion as a form of leniency while inviting its exercise as a form of rigor. Thus, the final outcome of Booker may be a sentencing system neither determinate nor indeterminate but a hybrid: Namely, a sentencing system that is determinate with respect to the minimum but indeterminate with respect to the maximum.
The possibility of increased use of mandatory minimums with advisory guidelines solely for upward departures is especially troubling in light of the damage it would cause to the long-standing principle championed by the Court in Koon v. United States: “It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” ( Koon v. United States, 518 U.S. 81, 113 (1996).) In fidelity to that principle, we must guard against the possibility of a sentencing system in which individual circumstances are considered only for purposes of magnifying the punishment.
Amidst the Booker imbroglio, we can take some comfort in the fact that most criminal prosecutions will be largely unaffected because, as I noted in the last column, federal prosecutions account for only 5 percent of all prosecutions in the United States. ( ABA Criminal Justice Section Task Force on the Federalization of Criminal Law, The Federalization of Criminal Law 19, 43 (1998).) However, as Professor Berman noted in the last issue, “the profound impact that the [ Blakely] decision could have on state sentencing systems may be truly the most important aftershocks to monitor.” (Douglas A. Berman, The Roots and Realities of Blakely, Crim. Just., Winter 2005, at 12.) Concluding on that point, I had intended in this issue to focus on local issues of everyday relevance to our members, but I, too, got caught up in the debate of the day.