The Return of Federal Judicial Discretion in Criminal Sentencing
Valparaiso University Law Review
The Return of Federal Judicial Discretion in Criminal Sentencing
Susan R. Klein 0 1
0 Susan R. Klein, The Return of Federal Judicial Discretion in Criminal Sentencing , 39 Val. U. L. Rev. 693
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Federal judicial discretion in criminal sentencing has come full circle
over the last two hundred years. The English practice in colonial times
for felony offenses consisted of a determined, or fixed, sentence for every
crime, depending upon a finding beyond a reasonable doubt by a jury of
all of the “essential ingredients” of that crime.1 The judicial role was
largely a ministerial one—impose that sentence mandated by the jury
verdict. America, on the other hand, soon switched to indeterminate
sentencing, giving state and federal judges the authority to impose any
sentence they chose within the very wide penalty range established by
the legislature.2 Each judge was master of his courtroom upon receiving
a conviction by jury verdict or guilty plea. He held a sentencing hearing
if he wanted one, he heard whatever evidence he felt relevant, and he
made all of the moral, philosophical, medical, penological, and policy
choices surrounding what particular sentence to impose upon a
particular offender.3 There were no standards to assist or confine the
judge in making his determination, he need not publicly state the
reasons for his selection of a particular sentence, and his decision was
virtually unreviewable by any higher court.4
Judges had ceded some of this enormous discretion by the early
1960s, as every state and the federal government permitted a parole
board or probation agency to release a defendant after serving the
minimum sentence imposed. Judges nonetheless, in the words of Judge
Marvin Frankel, possessed discretion that was “terrifying and
intolerable for a society that professes devotion to the rule of law.”5 This
discretion was abruptly and almost completely terminated shortly after
∗ Baker & Botts Professor of Law, University of Texas School of Law at Austin. I thank
Sam Buell, Jordan Steiker, and Kate Stith for their helpful comments. I appreciate the
research assistance of Ashley Storm and Marwan Elrakabawy.
1 2 T. BISHOP, CRIMINAL PROCEDURE 200-01 (1866) (collecting cases).
2 See infra notes 18-22 and accompanying text.
3 See generally Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CIN. L. REV. 1 (1972); see infra
notes 22-26 and accompanying text.
4 The few exceptions were as follows: (1) a sentence imposed using unconstitutional criteria,
such as race or political viewpoint, Wayte v. United States, 470 U.S. 598 (1985); (2) a vindictive
sentence based upon a defendant’s assertion of his constitutional right to appeal his conviction,
North Carolina v. Pearce, 395 U.S. 711 (1969); and (3) a term of years or fine so excessive compared
to the crime that it offended the Eighth Amendment’s proportionality requirement, Harmelin v.
Michigan, 501 U.S. 957 (1991); United States v. Bajakajian, 524 U.S. 321 (1998). I will not discuss
capital sentencing, with its vast array of constitutional restrictions, in this article.
5 MARVIN. E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 5 (1973). Judge Frankel
is widely regarded among scholars as the father of the modern sentencing movement.
693
694
Congress enacted the Sentencing Reform Act of 1984, which transferred
power over federal criminal sentencing from district judges to the newly
created United States Sentencing Commission.6 Once the
Commissioners crafted the first Federal Sentencing Guidelines Manual
in 1987, the judge was demoted from policy-maker to fact-finder. Rather
than deciding which crimes were most serious, and what aggravating
and mitigating characteristics regarding offenders and offenses she
believed warranted a higher or lower sentence in the cases before her,
the Commissioners made all of those decisions in advance, for every
conceivable case, and listed the outcomes in the Manual. The judge then
determined whether those aggravating or mitigating facts that mattered
to the Commissioners existed, and plugged these findings into the
formula provided in the Manual to reveal the appropriate sentence.
Needless to say, most federal trial court judges were not overly fond
of this new arrangement. After many false starts, a successful attack was
finally launched last term in United States v. Booker.7 This was the latest of
a line of cases, starting in 1999, that attempted to define the role of the Sixth
Amendment jury trial right in criminal sentencing. The newly articulated
right that (...truncated)