Deconstructing Sentences

The Supreme Court opens a back door to judicial discretion

Like cases should be treated alike, and different cases should be treated differently. These simple, self-evident principles of justice are difficult to reconcile in practice.

If legislators give judges broad discretion in sentencing—the approach that prevailed until the sentencing reforms of the 1980s—people guilty of the same crimes may receive dramatically different punishments. If legislators restrict judges' discretion by narrowing sentencing ranges and dictating which factors trigger reductions or enhancements—the approach taken by Congress and many state legislatures since the 1980s—people guilty of crimes that are different in morally significant ways may receive the same punishment.

Into this tug of war between legislators and judges the Supreme Court has pushed a third party: the jury. The resulting confusion presents an opportunity to strike a better balance between arbitrary variation and senseless uniformity.

In Blakely v. Washington , the Court overturned the sentence of a man who pleaded guilty to kidnaping his estranged wife and who received extra prison time based on a judge's determination that he acted with "deliberate cruelty." A majority led by Justice Antonin Scalia concluded that the sentence violated the Sixth Amendment right to trial by jury.

The majority relied on a principle the same five justices had announced in a 2000 case involving New Jersey's "hate crime" statute: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The Court made it clear in Blakely that "the relevant statutory maximum…is the maximum a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant."

Consequently, any punishment scheme that enhances penalties based on a judge's findings of fact, as the sentencing guidelines used by many state courts and every federal court routinely do, is constitutionally suspect. At least three federal judges already have concluded that the federal sentencing guidelines, which instruct judges to increase sentences based on their own determination of facts such as drug weight and the defendant's level of participation, are invalid under Blakely. The National Association of Criminal Defense Lawyers says the sentencing guidelines of a dozen or so states are likewise vulnerable.

The decision thus creates tremendous uncertainty in state and federal courts, casting doubt on hundreds of thousands of sentences, changing the dynamics of plea bargains, and forcing judges and prosecutors to rethink the way they handle cases. But not for nothing.

Under the existing guidelines, people can in effect be punished for crimes with which they were never charged—even crimes of which they were acquitted. At the extreme, Scalia noted, if legislators are entirely free to distinguish between crime elements and sentencing factors, "a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it—or of making an illegal lane change while fleeing the death scene."

Although Blakely ostensibly constrains the power of judges, the upshot over the short term may be more judicial discretion. Paul Cassell, a U.S. district judge in Utah, recently announced he would henceforth treat the federal guidelines not as requirements but as a useful source of information about the appropriate sentence to choose between the statutory minimum and maximum—that is, more like actual guidelines.

Legislators will be tempted to counter the expansion of judicial discretion with more of the draconian mandatory minimum sentences that have provoked objections across the political spectrum. Even before Blakely was decided, Rep. James Sensenbrenner (R-Wis.) introduced a bill that would increase from one year to 10 the mandatory minimum sentence for anyone 21 or older who sells any amount of a controlled substance (even a single joint) to someone under 18. A second offense of this sort would trigger a mandatory life sentence.

Although I'm no fan of the war on drugs, I agree selling drugs to minors should be prohibited. But try to imagine a 10-year sentence for a 21-year-old who purchased a six-pack on behalf of a 17-year-old, or a life sentence if he did so twice, and you'll get a sense of how ridiculously disproportionate these penalties are.

If this is what we get when legislators try to rein in judges, perhaps we should take our chances with a little more judicial discretion.