cjjack
06-29-2004, 11:37 AM
Sense and Sentencing
June 29, 2004
By KATE STITH and WILLIAM STUNTZ
Last week the Supreme Court threw a very large wrench into
the machinery of the criminal justice system. In Blakely v.
Washington, the court struck down the sentencing guidelines
used in Washington State. The ruling applies not only to
Washington, but also to other states with similar systems -
and to the federal sentencing guidelines.
In her dissent, Justice Sandra Day O'Connor predicted that
the decision would wreak havoc in the nation's courts. But
it also could spur Congress to improve the system.
The court's decision sounds simple: all facts necessary to
authorize a defendant's sentence must be found by a jury
beyond a reasonable doubt, unless the defendant waives that
right. Actually, this rule is a dramatic departure from
current practice.
In the federal courts now, a defendant either pleads guilty
or is convicted at trial. Then the judge - not a jury -
holds a sentencing hearing, at which the judge considers a
range of factors, like the defendant's prior record and the
harm caused by the crime. The defendant's sentence is based
on these considerations (and many more like them). Detailed
federal rules issued by the United States Sentencing
Commission - and they are rules, not mere guidelines -
establish a narrow range of possible sentences.
In this system, virtually all the power is in the hands of
prosecutors. The federal criminal code covers an enormous
array of crimes. All those statutes, together with the
complex web of sentencing guidelines that apply to them,
amount to a long and elaborate menu of charging options for
prosecutors. Which items prosecutors select from the menu
determine who goes to prison, and for how long.
The menu is harsh. If a prosecutor decides to go for the
most severe possible charge and aggravating sentencing
factors, the sentence is usually long. Some 95 percent of
federal convictions are obtained by guilty pleas, almost
all of them based on plea bargains that prosecutors
dictate. The terms of those plea bargains largely decide
the defendant's sentence. The information judges see at
sentencing is, for the most part, the information
prosecutors want them to have.
Blakely rules this system out of bounds. Prosecutors are
already at work drafting plea bargains to try to bypass the
court's ruling, but no one knows how these bargains will be
received.
Congress has the power to untie these legal knots while
also restoring a system of checks and balances in federal
criminal sentencing. It should amend the Sentencing Reform
Act of 1984 (which established the sentencing commission
and made its rules binding on judges) to change the
commission's many rules into recommendations. Federal
district judges would have the legal discretion to fix
sentences, within the range now fixed by statutes - the
statutes that were largely superseded by the guidelines.
Of course, judicial discretion should not be total. Federal
district judges should be required, as they are now, to
explain their sentencing decisions. Federal appeals courts
should throw out sentences that amount to an abuse of that
discretion. Under such a system, federal judges would still
pay attention to the sentencing guidelines. But the
guidelines would not be a straitjacket. And prosecutorial
power would be checked.
Nowhere in Blakely does the court suggest that there is
anything unconstitutional in a system of advisory
sentencing guidelines. Justice Scalia went out of his way
to affirm the constitutionality of the pre-1984 federal
system, which allowed judges to give sentences within wide
statutory limits. But that system gave judges too much
discretion. How much prison time a defendant got often
depended on which judge heard his case - not a healthy
state of affairs, and not a world anyone should want to
return to.
It would be far better to use the sentencing guidelines to
give judges nonbinding direction and to let appeals courts
ensure a reasonable degree of uniformity. Congress should
let guidelines guide - and judges judge.
Kate Stith, a former federal prosecutor, is a professor at
Yale Law School. William Stuntz is a professor at Harvard
Law School.
http://www.nytimes.com/2004/06/29/opinion/29STIT.html?ex=1089526921&ei=1&en=46a4
70578bfe5917 (http://www.nytimes.com/2004/06/29/opinion/29STIT.html?ex=1089526921&ei=1&en=46a470578bfe5917)
June 29, 2004
By KATE STITH and WILLIAM STUNTZ
Last week the Supreme Court threw a very large wrench into
the machinery of the criminal justice system. In Blakely v.
Washington, the court struck down the sentencing guidelines
used in Washington State. The ruling applies not only to
Washington, but also to other states with similar systems -
and to the federal sentencing guidelines.
In her dissent, Justice Sandra Day O'Connor predicted that
the decision would wreak havoc in the nation's courts. But
it also could spur Congress to improve the system.
The court's decision sounds simple: all facts necessary to
authorize a defendant's sentence must be found by a jury
beyond a reasonable doubt, unless the defendant waives that
right. Actually, this rule is a dramatic departure from
current practice.
In the federal courts now, a defendant either pleads guilty
or is convicted at trial. Then the judge - not a jury -
holds a sentencing hearing, at which the judge considers a
range of factors, like the defendant's prior record and the
harm caused by the crime. The defendant's sentence is based
on these considerations (and many more like them). Detailed
federal rules issued by the United States Sentencing
Commission - and they are rules, not mere guidelines -
establish a narrow range of possible sentences.
In this system, virtually all the power is in the hands of
prosecutors. The federal criminal code covers an enormous
array of crimes. All those statutes, together with the
complex web of sentencing guidelines that apply to them,
amount to a long and elaborate menu of charging options for
prosecutors. Which items prosecutors select from the menu
determine who goes to prison, and for how long.
The menu is harsh. If a prosecutor decides to go for the
most severe possible charge and aggravating sentencing
factors, the sentence is usually long. Some 95 percent of
federal convictions are obtained by guilty pleas, almost
all of them based on plea bargains that prosecutors
dictate. The terms of those plea bargains largely decide
the defendant's sentence. The information judges see at
sentencing is, for the most part, the information
prosecutors want them to have.
Blakely rules this system out of bounds. Prosecutors are
already at work drafting plea bargains to try to bypass the
court's ruling, but no one knows how these bargains will be
received.
Congress has the power to untie these legal knots while
also restoring a system of checks and balances in federal
criminal sentencing. It should amend the Sentencing Reform
Act of 1984 (which established the sentencing commission
and made its rules binding on judges) to change the
commission's many rules into recommendations. Federal
district judges would have the legal discretion to fix
sentences, within the range now fixed by statutes - the
statutes that were largely superseded by the guidelines.
Of course, judicial discretion should not be total. Federal
district judges should be required, as they are now, to
explain their sentencing decisions. Federal appeals courts
should throw out sentences that amount to an abuse of that
discretion. Under such a system, federal judges would still
pay attention to the sentencing guidelines. But the
guidelines would not be a straitjacket. And prosecutorial
power would be checked.
Nowhere in Blakely does the court suggest that there is
anything unconstitutional in a system of advisory
sentencing guidelines. Justice Scalia went out of his way
to affirm the constitutionality of the pre-1984 federal
system, which allowed judges to give sentences within wide
statutory limits. But that system gave judges too much
discretion. How much prison time a defendant got often
depended on which judge heard his case - not a healthy
state of affairs, and not a world anyone should want to
return to.
It would be far better to use the sentencing guidelines to
give judges nonbinding direction and to let appeals courts
ensure a reasonable degree of uniformity. Congress should
let guidelines guide - and judges judge.
Kate Stith, a former federal prosecutor, is a professor at
Yale Law School. William Stuntz is a professor at Harvard
Law School.
http://www.nytimes.com/2004/06/29/opinion/29STIT.html?ex=1089526921&ei=1&en=46a4
70578bfe5917 (http://www.nytimes.com/2004/06/29/opinion/29STIT.html?ex=1089526921&ei=1&en=46a470578bfe5917)