Preserving the Constitutionality of Federal Sentencing ...



Preserving the Constitutionality of Federal Sentencing Guidelines

By Michael Goldsmith, Professor of Law

Forthcoming 17 Federal Sentencing Reporter ___ (2005)

As former vice chair of the U.S Sentencing Commission, I considered Blakely v. Washington a remarkable anomaly given Supreme Court precedent repeatedly endorsing the federal sentencing guidelines.[1] Although many federal courts subsequently ruled that Blakely rendered the guidelines unconstitutional, these decisions failed to consider critical structural differences between the guidelines and the state statutes at issue in Blakely.[2] Oral argument in Booker and Fanfan, however, raised few, if any, of these points and the justices’ comments certainly suggested that the Court will strike down the guidelines in some fashion.[3]

Based on that assumption, the Sentencing Commission recently asked for my views at a public hearing addressing how best to conform the guidelines with Blakely. Absent further Supreme Court guidance, this effort is necessarily speculative, but the Commission’s proactive posture will allow it to respond promptly to the pending decision, thereby minimizing systemic disruptions.

Even if the Supreme Court rules the current guidelines unconstitutional under Blakely, there are ways to preserve the constitutionality of federal sentencing guidelines. This essay elaborates on a proposal which I think would both satisfy the demands of Blakely and best achieve the noble goals of the Sentencing Reform Act (“SRA”).

Rather than view Blakely as the guidelines’ death knell, Congress and the Commission should seize this moment as a historic opportunity to achieve a variety of important goals: simplify the guidelines, increase certain penalties where appropriate, and return a modicum of discretion to sentencing judges. Blakely provides the framework for such reform, since it requires a jury finding only for guideline increases beyond the base offense level corresponding with the facts underlying the jury’s guilty verdict. Thus, for example, Blakely does not preclude raising penalties and allowing the judge to find mitigating factors that reduce a sentence.[4]

With this in mind, my proposal calls for a five step approach:

(1) Congress should amend the SRA to increase the sentencing range within each guideline offense level from 25% percent to somewhere between 33% to 50%. This change alone would simplify the guidelines by sharply reducing the number of offense levels. Broader sentencing ranges should also produce reduced departure rates, and any risk of increased sentencing disparity could be substantially avoided through Commission policy statements recommending how judges should exercise their discretion within the broadened ranges.

(2) The Commission should identify the most commonly employed specific offense characteristics (i.e. perhaps those with at least 70-75% frequency per crime of conviction) and integrate them into the new base offense levels. (The Commission employed a similar approach when it amended its economic crime guidelines.)[5] This will increase sentences for each offense level commensurate with the value of these specific offense characteristics. A similar approach could be taken with chapter 3 adjustments (incorporating frequently used adjustments into base offense levels).

(3) Allow for the possible absence of any of these specific offense characteristics (and chapter 3 adjustments) in any particular case by treating such absence as a mitigating factor which the defendant must prove by a preponderance of the evidence. As the Supreme Court has sustained the constitutionality of requiring defendants to prove affirmative defenses at trial,[6] no obstacle exists to requiring convicted offenders to prove mitigating factors at sentencing.

(4) The Commission should review the less frequently used specific offense characteristics and chapter 3 adjustments. Those sufficiently important to retain would be subject to jury determinations under Blakely. The Commission could either treat the rest as recommended factors in determining where within the applicable range the defendant should be sentenced or choose to discard some of them entirely.

(5) Guidelines that are quantity driven (e.g., drugs, fraud (amount of loss) would also require a jury determination. Alternatively, the Commission could build quantity into the base offense levels, and place the burden of proving mitigating lower amounts on defendants (admittedly a very harsh approach that technically satisfies Blakely but creates bad sentencing policy.[7]

This five-step proposal responds in a principled manner to the Supreme Court’s concerns in Blakely without disrupting the entire guidelines system. It will both simplify the guidelines’ overall structure and reduce the number of sentencing factors requiring jury determination. Its modest increase in judicial discretion should not produce unwarranted sentencing disparity; thus, it remains true to a central purpose of the SRA. Further, since the judges must exercise their discretion within enhanced penalty ranges, the proposal responds to those who demand “tough-on-crime” sentences (thereby reducing the incentive for new, Congressionally-imposed, mandatory minimums).

The proposal also provides defendants some measure of relief, as it allows them to prove mitigating factors warranting a lower base offense level. Finally, the proposal would be relatively easy to implement. Because the Sentencing Commission retains a depository of data from every sentence imposed under the guidelines, it should not be difficult to identify which specific offense characteristics and chapter 3 adjustments should be integrated into each crime’s base offense level, and which of the remainder should either be subject to Blakely or dropped entirely. Ultimately, this approach offers the potential benefit of providing both a quick fix and a long term solution to a looming constitutional crisis.

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[1] Michael Goldsmith, Reconsidering the Constitutionality of Federal Sentencing Guidelines After Blakely: A Former Commissioner’s Perspective, 2004 B.Y.U. L. Rev. 935, 955-960 (reviewing series of pre-Blakely Supreme Court decisions).

[2] Id. at 961-967.

[3] Transcript of Oral Argument at 12, United States v. Booker, 04-104 and United States v. Fanfan, 04-105 (U.S. Oct. 4, 2004) (Scalia, J., "I find it just incompatible with a jury trial right to say that [a] fact [necessary for sentencing] must be determined, before you can be kept in jail. And yet we're going [to] let it be determined by a judge."); id. at 47 (Kennedy, J., "If discretion is cabined by guidelines . . . why isn't [the sentencing range absent judicial factfinding] the same kind of entitlement that the Apprendi/Blakely opinion is predicated on to begin with?").

[4]As Justice O'Connor observed, under the majority’s analysis "[j]udges would be able to depart downward from presumptive sentences upon finding that mitigating factors were present, but would not be able to depart upward unless the prosecutor charged the aggravating fact to a jury and proved it beyond a reasonable doubt." Blakely v. Washington, 124 S. Ct. 2531, 2554 (O'Connor, J., dissenting); cf. Patterson v. New York, 432 U.S. 197, 206-07 (1977) (noting that burden of proving affirmative defense may be placed on defendant).

[5] See Amendment 617, U.S. Sentencing Guidelines, Nov.1, 2001 (consolidation of fraud and theft guidelines eliminating “more than minimal planning” as specific offense characteristic and increasing some base offense levels). This amendment, however, reflected a variety of considerations, and so it cannot be said that the new base offense level always assumed the existence of “more than minimal planning.”

[6] See Patterson v. New York, 432 U.S. 197, 206-07 (1977).

[7] See Goldsmith, supra note 1, at 976-977.

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