The Return of Federal Judicial Discretion in Criminal Sentencing

Valparaiso University Law Review, Apr 2011

By Susan R. Klein, Published on 04/15/11

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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 1 This Symposium is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at Available at: https://scholar.valpo.edu/vulr/vol39/iss3/4 Follow this and additional works at; https; //scholar; valpo; edu/vulr - 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)


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Susan R. Klein. The Return of Federal Judicial Discretion in Criminal Sentencing, Valparaiso University Law Review, 2011, pp. 693-740, Volume 39, Issue 3,