Recent rulings of the Supreme Court have invalidated one of the most onerous features of the sentencing guidelines of the federal government and several states. The Court ruled that judges can no longer increase sentences based on evidence and issues that have not been presented to a jury. They threw out the so-called “real offense sentencing” policies that have allowed prosecutors to present evidence “relevant conduct” to the judge after the jury is dismissed. If a defendant is convicted of just one crime, the prosecutors have been allowed to present evidence of matters that were not alleged in the indictment nor presented to the jury. Real offense sentencing even allowed the prosecutors to ask for increased sentences on conduct for which the defendant was acquitted by the jury. As Gerald Shargel summed up real offense sentencing in Slate, “You can win at a trial only if there's a complete acquittal. If you're convicted of anything, you can be punished for everything.”
This appalling practice was thrown out by a 5-4 decision. The Court ruled in United Statesv. Booker that any factor increasing a criminal sentence under the guidelines -- other than a prior conviction -- must be proved to a jury beyond a reasonable doubt or admitted by the defendant. Earlier this year the Court invalidated similar provisions in Washington State’s guidelines in Blakely v. Washington.
Sentencing guidelines were developed to avoid disparate sentences for criminals convicted of similar crimes. Yet the unintended consequences of the guidelines has not been the end of disparity in sentences, but merely a shift where the disparate decisions are made. Instead of defendants’ fates being in the hands of a jury of their peers, their sentencing decision is shifted from open court to behind closed doors, and at the same time lowering the standard of proof from beyond a reasonable doubt to merely a preponderance of the evidence. Under this system, a defendant found guilty of one crime by a jury, can have years added to his sentence merely because the judge believes that it is likely he did the other bad things alleged by the prosecutor. “The threat of greater punishment for unproved crimes is routinely used to bludgeon people into accepting plea bargains,” says Timothy Lynch of the Cato Institute.
The clarity of the principle finding in the Booker case was blurred when the Court ruled on the remedial portion of the case. Justice Ginsburg switched sides, joining the four dissenters on the constitutionality of the guidelines, to hold that the guidelines should be advisory. Eric Umansky aptly noted in Slate that, “She was the only justice who concluded that the guidelines were both unconstitutional and advisable.”
Where does that leave us? Most of those I have talked to are confused. Some in Congress are eager to slap back at the Court by merely adjusting the range of the guidelines or increasing the number of crimes covered by mandatory minimums (mostly drug crimes).
Others see this as an opportunity to address the broader issue of criminal code reforms that will result in sentences that more closely reflect the danger posed to society . Two examples of the perverse results of our current sentencing policies took place on the same day and in the same courtroom in Utah federal court recently. The first defendant was convicted of bludgeoning to death an elderly woman with a log, for which he was sentenced to 25 years. The second defendant was convicted of possessing 92 ounces of crack cocaine as part of a sting. He received a sentence of 55 years because the officers found a gun in an ankle holster as they searched him after the arrest. He never brandished the weapon, nor was it used in the crime. But the “gun” factor locked him up for more than twice the time that a man that brutally beat a senior citizen to death will serve.
Many leaders from both sides of the political spectrum feel that before Congress rushes in to plug the holes punched in the guidelines by the Court, we should go slowly and try to end the “one size fits all” to sentencing. We must start protecting the public better by weighing the danger to society of the crimes actually proven to the jury and meting our sentences appropriatly.
In His service,
Pat Nolan, President
Justice Fellowship
Supreme Court Invalidates Sentencing Guidelines (Justice Fellowship) |
