By way of the Supreme Court, a death sentence for fair sentencing

Imagine that Johnny, hard up on cash, decides to rob a bank along with a few buddies. While his associates watch the doors and man the getaway car, Johnny marches to the teller and demands all of the bank’s money. Terrified, the teller opens the vault, retrieves $1 million and hands the money to Johnny. Before Johnny can make his exit, though, one of the bank’s guards shows up and yells at Johnny to freeze. In response, Johnny grabs a nearby customer, throws his arm around her neck and threatens to shoot her if the guard makes another move. To show he’s serious, he fires a single shot into the air. Unwilling to risk the hostage’s life, the guard does nothing, and Johnny and his gang drive away from the bank, $1 million richer than 10 minutes before.

Unfortunately, Johnny and his associates get caught that evening, thanks to a massive police manhunt. A few months later, Johnny goes on trial for robbery and is found guilty by a jury. Now the time has come for sentencing. For how long should Johnny be imprisoned for his crime?

Before 1984, the answer was as long as the trial judge thought was appropriate. Robbery statutes typically set out an extremely broad sentencing range, say five to 40 years, and the judge was almost completely free to pick any sentence within that range. The result was that sentences for conduct like Johnny’s varied enormously. A softhearted judge might be moved by Johnny’s difficult childhood and sentence him to five years in jail. A more fair-minded judge might be troubled by the large amount of money stolen and by Johnny’s use of a gun during the robbery and sentence him to 15 years. A “hanging” judge might want Johnny off the streets for the longest period allowed by law, i.e. 40 years.

Disparities in sentences for similar conduct — often the result of racism and other biases — motivated Congress to issue the Sentencing Guidelines in 1984. Under the guidelines, every federal crime is assigned a base offense level corresponding to its severity. All sorts of factors can then cause the base level to be adjusted upward or downward. In Johnny’s case, run-of-the-mill robbery carries a sentence of 33 to 41 months. But upward adjustments for robbing a financial institution, discharging a firearm during the robbery, physically restraining someone to facilitate escape, stealing $1 million and leading a criminal activity with five or more participants elevate Johnny’s sentence all the way to 262 to 327 months. Johnny’s judge could pick any sentence within this narrow range but could not deviate upward or downward absent extraordinary circumstances.

Until recently, then, Johnny’s sentence would not have been in doubt. But on Jan. 12, the Supreme Court ruled that the sentencing guidelines are unconstitutional. According to the Court, the Sixth Amendment guarantees defendants not just a jury trial but also a sentence no higher than that which could be imposed solely on the basis of the jury’s verdict. The trouble with the guidelines is that they allow — in fact, require — judges to make factual determinations that drastically change defendants’ sentences without any jury involvement. In Johnny’s case, for instance, the jury’s guilty verdict only supports a three-year prison sentence. But the judge’s factual determinations — that Johnny fired a gun during the robbery, that the amount stolen was $1 million, etc. — would add more than 20 years to his sentence.

The Court’s holding has a certain appeal. If the right to trial by jury is to mean anything, facts not included in the jury’s verdict and about which the jury never heard testimony should not radically alter defendants’ sentences. The problem with the ruling, though, is that despite its concerns with defendants’ rights, it returns the criminal justice system to the arbitrariness and inconsistency of the pre-guidelines era. Some defendants, perhaps including Johnny, will reap a windfall. But other defendants will receive higher sentences than they would have under the guidelines. And sentencing in general will lose its current predictability as judges respond in idiosyncratic ways to the defendants before them. The bleeding-heart judge and the hanging judge, both banished in 1984, are about to make a comeback.

Experts make various arguments about why the pre-1984 sentencing disparities are unlikely to recur, but none of their claims is especially convincing. True, the guidelines still exist in the wake of the Court’s ruling. But now that they are no longer binding, judges — who have always hated the guidelines — will have no reason to follow them. True, prosecutors can now ask juries to find all the sentence-enhancing facts that judges previously determined under the guidelines. But this gives prosecutors enormous influence over defendants’ sentences and puts defendants in the impossible position of simultaneously arguing that they didn’t commit the crime — but even if they did, they certainly didn’t commit it in the dastardly way alleged by the prosecutors.

The Court was of course right to criticize the guidelines. The sentences they produce are often absurdly harsh, and they deny judges the ability to take into account each defendant’s unique factual circumstances. But the Court’s ruling confused the admitted flaws of these guidelines with the promise of a guideline system in the abstract. These guidelines were too rigid and too punitive — but sentencing guidelines in principle are the best way to achieve both individualized justice for each defendant and consistency across similar cases.



Nicholas Stephanopoulos is a second-year student at the Law School. His column appears on alternate Mondays.

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