Supreme Court Issues Big Sentencing Decision

In striking down California's sentencing law yesterday which allowed judges, as opposed to juries, to determine aggravating factors warranting an increase in a criminal sentence, the Supreme Court further solidified the principles it began with its Apprendi, Blakely and Booker decisions. The New York Times provides this analysis.

First, the prior cases in a nutshell,

[Apprendi]invalidated New Jersey’s hate-crime statute, which gave judges the power to make the specific factual findings that converted an ordinary crime into a hate crime, with an enhanced sentence. The court ruled that the Sixth Amendment right to trial by jury gave that role to juries.

....Blakely v. Washington.... invalidated Washington’s sentencing guidelines for giving judges the power to impose sentences beyond the normal range based on specific findings about the defendant’s conduct.

Then came Booker (argued in the Supreme Court by TChris who writes at TalkLeft)

in United States v. Booker, the court applied that reasoning to the federal sentencing guidelines, ruling that the guidelines could be deemed constitutional only if they were regarded as “advisory” rather than mandatory.

Yesterday's opinion was written by Justice Ruth Ginsberg. Joining her were Chief Justice Roberts and Justices Stevens, Scalia, Thomas and Souter.

Dissenting: Justices Alito, Breyer and Kennedy.

As to the California law the Court ruled invalid:

The 1977 law adopted what is known as a determinate-sentencing approach. Each crime carried three possible sentences. The middle sentence was presumed to be the correct one unless the judge made findings that justified the higher or lower alternatives.

Since I practice primarily in federal court, I'm going to be more interested in a case argued next month:

Next month in Rita v. United States, No. 06-5754, the court will hear arguments on whether a federal sentence within the guidelines range should be presumed to be reasonable.

If the court rules against the reasonableness presumption, judges will have even more latitude to impose a non-guideline sentence. The guidelines took effect in 1987. I've had ten years of cases pre-guidelines and 20 post-guidelines, and I have to say, I prefer non-guideline sentences. There's something about determining a person's future by mathematical calculation that just doesn't sit right with me.

While crimes may be the same, those who commit them are not. Simply dividing them, as the Guidelines mandate, into levels one through six based on their criminal history is very de-humanizing and takes away the Judge's ability to impose a sentence based not only on the seriousness of the offense but the character and history of the offender.

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    it's truly an interesting decision (none / 0) (#1)
    by scribe on Tue Jan 23, 2007 at 04:42:07 AM EST
    not really capable of one-sentence encapsulation (I think I wrote an interoffice memo to that effect which ended "I have appended a copy of  the opinion for your review....").  There's a plethora of great discussion of this topic over at Prof. Berman's Sentencing Law and Policy.

    But, more seriously, while this is highly important, the one aspect of federal sentencing (and a lot of state sentencing, too) which bugs the crap out of me is that provision which allows for sentencing calculation to encompass "uncharged conduct" or, worse, "acquitted conduct".

    As discussed in this linked post, today, the Ninth Circuit allowed the use of "acquitted conduct" in the sentencing calculation.

    I'd hope the only reason this sort of travesty survives is that no one's bothered to explain to the public that, despite being acquitted of serious charge X, you still can have your sentence for the far-less-serious charge Y enhanced to encompass and penalize you for the serious charge X, of which you are not guilty.  Which is also a good reason, I suppose, that courts generally don't allow discussion of sentencing in jury arguments (except in the penalty phase of capital cases).

    And, let's not even talk about "uncharged conduct"....

    Frankly, IMHO the only reason Breyer continues to stand up for the Sentencing Guidelines is that he was the MFIC of creating them (which, after all, may be the reason Bush I chose him to sit on the Court in the first place).

    Doesn't sound quite Constitutional, does it? (none / 0) (#2)
    by scarshapedstar on Tue Jan 23, 2007 at 06:54:07 AM EST
    Acquitting someone of a crime and then sentencing them for it anyway?

    Just wondering... (none / 0) (#3)
    by David at Kmareka on Tue Jan 23, 2007 at 10:02:43 AM EST
    Does the Supreme Court's decision suggest that a harsher sentence, specifically such as that handed down in the case against former Congressman Bob Ney, might no longer be constitutionally valid and could be reduced?

    even crimes (none / 0) (#4)
    by Deconstructionist on Tue Jan 23, 2007 at 10:41:54 AM EST
      are not necessarily "the same" in terms of determining just punishment  because they violate the same statute and involve similar amounts of harm.

      *I believe Ney did not get a variance sentence above his guideline range  but simply a  longer term within the applicable sentencing range  than what the prosecutors recommended. i may be wrong about that though because its based on secondary sources.*