May 2005

Zeitgeist Postcard

Deciphering Booker*: The Saga of the Federal Sentencing Guidelines

by Allen R. Bentley

Setting: A rustic cabin. It is night. A cheery fire burns in the fireplace. An older man, Rip, sits in a rocking chair. A precocious child, Dorothy, sits beside him. Dorothy is reading a newspaper. She speaks first.

Dorothy:
Grandpa, it says here that the Supreme Court made an important decision yesterday, that affects the sentencing of thousands of people who have committed federal crimes. You defend people in federal court. I know that some of them are guilty, and they will be sentenced. What's this new decision all about?

Rip:
It's about the transformation of the Federal Sentencing Guidelines.

Dorothy:
What are the Federal Sentencing Guidelines?

Rip [sighing]:
It is a long and complicated tale. To answer your question, my dear, I need to go back a long way — way back to my early years as a lawyer. Are you that interested in this?

Dorothy:
Please tell me, Grandpa. Please tell me the story of the Sentencing Guidelines!

Rip [breathing deeply]:
OK. I'll try to make it short and understandable. Once upon a time, federal judges could sentence those convicted in their courts to just about anything. This was known as discretionary sentencing.

Dorothy:
You mean, if a letter carrier stole a letter from the mail, he or she could be sentenced to life imprisonment?

Rip:
Oh, no. No, no, no. There were limits. Stealing a letter, for instance, had a five-year maximum sentence. On the other hand, there was no "floor" that prevented a judge from giving "straight probation" in any case. As a result, some mail thieves got nothing but probation. Other mail thieves got several years in jail. It depended on who the judge was, or in what part of the country the theft was committed.

Dorothy:
That doesn't sound fair. I think two people who commit the same crime should get the same sentence.

Rip:
In that opinion, you are in good company. Another aspect of the "old" system was that the sentence the judge imposed couldn't be overturned on appeal, if it was within the statutory maximum and it wasn't influenced by something impermissible, like racial discrimination.

Dorothy:
Wow. If there was no real appeal, then a single judge must have had a lot of power.

Rip:
Yep. Many of the judges themselves weren't comfortable with it. And many observers felt that it wasn't fair. Eventually, in 1984 Congress authorized the creation of a standardized sentencing code, the Federal Sentencing Guidelines.

Dorothy:
That sounds like a good idea. How did they work?

Rip:
Well, the "guidelines" system was designed to reduce differences in sentences by creating a "grid" with presumptive sentences. The presumptive sentence was somewhere in a range (not all discretion was removed), which was found by locating the intersection of the "offense severity level" with the defendant's "criminal history category."

Do you remember that chart we have in the car, which shows the distance between any two cities by locating one city on the horizontal axis and another city on the vertical axis? Then you see where the two axes meet, and that is the distance between the cities? That's how this worked, too.

The goal was to end disparities by channeling judges' discretion so that most defendants having been convicted of comparable crimes, and having comparable criminal histories, would receive approximately the same sentence, no matter who the judge was, and no matter where the case was prosecuted.

To encourage the courts to achieve this goal, the law was changed to allow sentencing appeals. If a judge, in sentencing a criminal, did not follow the grid — did not sentence "within the guidelines" — then anybody who was dissatisfied with the sentence could appeal it to a higher court. And if the judge "departed" from the guidelines in a way that wasn't authorized, that could be appealed, also.

Dorothy:
Was there something wrong with the guidelines system, Grandpa?

Rip:
Yes. It was this. In calculating the severity of an offense, many judgments had to be made. How much was the loss in a fraud case? What was the weight of the drugs involved in a drug case? Was the defendant a leader or organizer of criminal activity? Did the defendant "accept responsibility" for the crime? Had the defendant "obstructed justice"? All these considerations were built into the system, making for a very calibrated scheme. And the sentencing judge made decisions on these factors using a preponderance of the evidence standard — that is, by deciding if it was "more likely than not" that a certain enhancement factor applied.

Dorothy:
Whoa! You always told me that no one could be punished unless they had been found guilty "beyond a reasonable doubt."

Rip:
You're absolutely right. At its worst, the guidelines system allowed a judge to add punishment to a defendant's sentence on the basis of conduct, even though the defendant had been acquitted by the jury on that same conduct! The theory was that even though the jury wasn't able to find guilt on a certain matter beyond a reasonable doubt, the judge could find that the matter was proven on the basis of the lesser, preponderance standard.

For example, a person could be charged with possession of a gram of cocaine in Count 1 and possession of a kilogram of cocaine in Count 2. If this person were acquitted of the kilogram (Count 2) but convicted of the gram (Count 1), the judge could still base the sentence on the basis of the kilogram — and believe me, that extra weight would make a big difference.

Dorothy:
That sounds unfair, too. How did they fix the problem?

Rip:
Well, in June 2004, the Supreme Court said that any factor that increases a defendant's sentence must be found beyond a reasonable doubt by a jury (or else, must be agreed to by the defendant in pleading guilty). This was the decision in Blakely v. Washington**, a case that started right here in Washington.
 
In the Blakely case, the defendant was convicted of kidnapping and faced a "standard" sentence of about six years. But the judge used his authority to increase the sentence to nine years because he found that the kidnapping was committed with "deliberate cruelty." When the Supreme Court looked at the case, they said, "Hold on, you can't do that, unless the jury decides it was deliberate cruelty."
 
After Blakely came down, everyone knew that it was only a matter of time before the Supreme Court considered the constitutionality of the Federal Sentencing Guidelines. And that's the decision that you asked me about. It's called United States v. Booker.

Dorothy:
What does the decision mean?

Rip:
It's interesting, my young legal scholar. Given their decision in Blakely — which was decided, by the way, on a 5-4 vote — the Supreme Court just had to conclude that the Federal Sentencing Guidelines were unconstitutional. The reason is that the Federal Sentencing Guidelines, just like the Washington State Guidelines, required a judge to increase a defendant's sentence on the basis of facts that had not been found by a jury.

I'm actually surprised that the Court could not agree on that point unanimously, but once again, we had a 5-4 split. The majority — the first group of justices — said that Blakely applied and that the Federal Guidelines would have to meet Blakely's requirements.

Having made that decision, the Court had three choices. First, they could declare the guidelines completely and utterly unconstitutional — they could throw 'em out. Second, they could attach Blakely-type protections to the current guidelines scheme. And third, they could take the teeth out of the guidelines.

Dorothy:
Which approach did they take, Grandfather?

Rip:
They took the teeth out of the guidelines and made them advisory only.

Dorothy:
How could they do that? That sounds like legislating.

Rip:
Don't ask me — they're the Supreme Court! Seriously, what they said they were doing was trying to figure out hypothetically what Congress would have wanted them to do, had Congress known that by making the guidelines mandatory, they had deprived defendants of their due process rights.

Dorothy:
Which Congress? The Congress that adopted the guidelines, or the Congress that's there today, or some in-between Congress?

Rip:
The Court didn't say, but I think they felt that they knew the 1984 Congress, which enacted the guidelines, better. Justice Breyer — who wrote the opinion for the majority that decided to "fix" the guidelines — was a Senate staff member and worked on the guidelines proposal at that time. He's been a staunch supporter of the concept of guidelines sentencing ever since.

Dorothy:
Did all of the justices agree that the guidelines were advisory only?

Rip:
No, only a bare majority — five of them.

Dorothy:
What did the other four want to do?

Rip:
They said that, rather than take something away from the guidelines (their mandatory nature), you should add something to them — namely, the right to a jury trial on factors that would increase the sentencing range.

Dorothy:
Did any of the justices say that they should throw out the guidelines entirely and let Congress take another try?

Rip:
No. You know, personally, I'm disappointed that they didn't. If they had declared the guidelines entirely unconstitutional, it would have taken the system back to the way it was in the late 1970s when I was a prosecutor. Certainly, declaring the guidelines completely unconstitutional wouldn't have been the last word. It's likely that Congress would have stepped in and dealt with the issue in some way. But that might have been more democratic.

Dorothy [yawning]:
Let me see — have I got this right? Five justices said that Blakely meant that the Federal Sentencing Guidelines were unconstitutional? And then the four justices who dissented on that issue then joined with one other justice — whom they disagreed with on the first part — to conclude in a second opinion that the guidelines could be fixed by making them advisory? It sounds to me like there was only one justice who fully agrees with the way that the Court decided this case.

Rip:
No wonder you do so well in math.

Dorothy:
Who was that one justice?

Rip:
Ruth Bader Ginsburg.

Dorothy:
What do you think she was thinking?

Rip:
I'm certain she did what she thought was right. Maybe she was also influenced by a desire not to totally wreck a system that has been functioning for decades. You know, other justices may have argued that they should save the system, even if they had to re-write the statute, and she may have agreed with them. Maybe she thought that her solution would meet the constitutional objection while, from a political point of view, satisfying those in Congress who would have enacted mandatory minimum sentences for everything, if the guidelines were completely invalidated.

Dorothy:
Do you think Congress is going to do anything, despite the fact that there are still guidelines, and judges are still encouraged to follow them?

Rip:
Look, our fire is almost out. The wind is whistling, and it's way past your bedtime.

Dorothy:
Grandpa! No fair. How does the story end? A bedtime story can't end without a happy ending. You know, "They all lived happily ever after."

Rip:
Some criminal defense lawyers thrive on uncertainty and enjoy the intellectual challenges presented by an unsettled legal situation. I must admit I'm one of them. We're the ones living happily at this point. But will our happiness last for "ever after"?

Only time will tell, my dear. Only time will tell.

_______________

Allen Bentley is a Seattle lawyer whose practice emphasizes federal criminal defense. A question from one of his adult children prompted him to write this fanciful dialogue on the subject of United States v. Booker. He does not have any grandchildren.

NOTES

* United States v. Booker, __ U.S. __, 2005 WL 50108 (January 12, 2005).

** Blakely v. Washington, __ U.S. __ , 124 S.Ct. 2531 (June 24, 2004).

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