The enforceability of sentencing guidelines.

• Author: Reitz, Kevin R.

INTRODUCTION I. THE RULE-DISCRETION CONTINUUM II. ENFORCEABILITY IN THE CURRENT FEDERAL SYSTEM III. POLICY IMPLICATIONS CONCLUSION INTRODUCTION

The pre-Booker Federal Sentencing Guidelines were, by far, the most vigorously enforced sentencing guidelines in the nation. (1) That is to say, under pre-Booker federal law, judicial sentencing discretion was hemmed in--by a combination of statutory and administrative rules--to a much greater extent than under the laws of any state. (2) As compared with eighteen state guidelines systems in operation in early 2005, (3) the federal system was a stark outlier in its emphasis on rule over discretion.

Booker has reduced the mandatory character of the Federal Guidelines, but the degree of change should not be overstated. The Court has not made the Federal Guidelines toothless, nor has it reinstituted the kind of sentencing discretion held by district court judges in the days of indeterminate sentencing. (4) It is true that, for purposes of constitutional discourse, the post-Booker (or Booker-ized) Guidelines are now dubbed "advisory" by the Supreme Court. (5) This is little more than legal jargon, however--and part of the distorted terminology that has cropped up in the Court's new Sixth Amendment jurisprudence. (6) The word "advisory," when attached to sentencing prescriptions, holds talismanic power for some Justices and therefore must be used strategically by other members of the Court. Policymakers should not credit the use of language stretched out of shape by the internal debates of the Justices. There is reason to think that the post-Booker Federal Sentencing Guidelines still pack as much wallop as any sentencing guidelines in the country.

1. THE RULE-DISCRETION CONTINUUM

   Analysts of American sentencing guidelines, when drawing comparisons among a variety of jurisdictions, have used labels such as "advisory," "voluntary," "presumptive," and "mandatory" to portray different regimes. (7) (The adjectives "advisory" and "voluntary" are used interchangeably in the literature.) These terms--which I have often used myself--have never been wholly adequate to capture the continuum of possibilities for the design of sentencing systems.

   For one thing, no jurisdiction in recent history has used a matrix of sentencing rules that were entirely mandatory for every case. Even in pre-Booker federal law, there was some "give" in the system under trial courts' (admittedly limited) departure power away from the Guidelines (8) and under the safety-valve provision that applies to many cases otherwise controlled by statutory mandatory minimum penalties. (9)

   Similarly, at least in the contemporary era, there has been no purely advisory approach to sentencing prescriptions in American law, under which judges were given a free hand to pronounce whatever sentences they liked without fear of reversal on any enforceable ground. No contemporary judge, for example, holds the power to vary punishment expressly for reasons of racial or religious animus, (10) and the Constitution forbids punishment based on patently false information (if such misdirection is plainly apparent from the record). (11)

   In addition, there are an infinite number of stops between a purely advisory approach and a completely mandatory framework. (12) The idea that some guidelines have "presumptive" or provisional legal force tells us little about how many teeth the guidelines have, how sharp the teeth are, and what issues they engage. There are many shades and degrees of "presumptiveness." Indeed, it is not always clear where the line should be drawn between a given "advisory" guidelines system, where trial court discretion is encumbered by modest constraints, and a so-called "presumptive" system, where judges may still hold wide swaths of decisional authority. (13)

   When important questions of system design are on the drawing table, therefore, legislators and other policymakers are well served to discount crude labels in favor of a more fine-grained analysis. Exactly how advisory, presumptive, or mandatory is a given framework? One must study the intricacies of each proposed or existing system to find an answer--and the assessment may vary from one type of case to another. (14)

   Figure 1 lays out a ten-point scale to aid visualization of what is at stake. At the left end of the continuum--or position zero--we can imagine a system in which judges hold hegemonic ability to fix penalties within expansive statutory ranges for felony offenses. There are no rules or prohibitions that judges must respect when doing so, except that the distant statutory maximum may not be exceeded. At position zero, in other words, trial judge sentencing discretion exists in a pure form within broad statutory bounds, and rulemakers--such as the legislature, sentencing commission, and appellate courts--exercise no authority at all within those boundaries. Rulemakers may advise and exhort as they like, but nothing they do carries legal force. (15)

   [FIGURE 1 OMITTED]

   At position ten, the opposite extreme of the continuum, we may imagine a system in which the facts of conviction (and perhaps other facts, such as the defendant's criminal history) determine a fixed and specific punishment in every case, with no judicial leeway permitted under any scenario. This represents the total hegemony of rulemakers. For purposes of analysis, it does not matter whether the rules come from statutory command, definitive guidelines, or some other source. At position ten, someone with system-wide competence has mandated the exact sentencing outcome of every case in advance of its litigation, and judges are mere functionaries in the punishment process.

   No twenty-first-century sentencing system is ever likely to plumb the full depths of positions zero or ten on the rule-discretion continuum. The important policy question is to locate the most salutary resting point between the extremes. It is equally important to understand that there are many different mechanisms for the calibration of judicial discretion along the continuum.

   Figure 1 indicates an equilibrium point (position five) at which the relative authorities of sentencing judges and rulemakers are in equipoise. The figure does not implicitly recommend that lawmakers should strive to produce such a "balanced" system. (16) Indeed, it would be difficult to lay out criteria for the achievement of perfect equilibrium. The reality of government is that, issue by issue, there always tends to be one official actor with more dispositive power than others. The particular usefulness of the continuum, as a mental map, is that it allows us to think about the legislature or commission becoming increasingly dominant over sentencing judges as the system moves to the right from position five, while the judiciary is ever more powerful as the system moves to the left.

   What can a legislature do, in crafting a sentencing system, to place it deliberately in one spot or another on the rule-discretion continuum? There are many tools at lawmakers' disposal. Most obviously, perhaps, the legislature can enact finely tailored sentencing prescriptions for individual cases, or it can charter a sentencing commission to perform the same function. Then, the legislature can adopt a verbal formula for granting or withholding judicial authority to deviate from those prescriptions. In the context of sentencing guidelines, this is often called the "departure power." If the legal standard for guidelines departures is forgiving (e.g., a departure may be based on "any reason set forth on the record by the sentencing court"), then the guidelines system would fall toward the left-hand side of the rule-discretion continuum. If the departure standard is more rigid (e.g., a departure requires "a substantial and compelling reason subject to appellate court review"), the rulemakers have gained power, and judicial discretion is proportionally limited. This second type of guidelines system would move toward the right-hand side of the scale. Even further to the right would be a guidelines system where the departure power is worded in very restrictive terms (e.g., departures authorized only for reasons "not adequately considered by the commission") or limited to a short list of enumerated factors.

   To make a sentencing system incline even more decisively toward a rule-driven system, the legislature may choose to authorize especially vigorous appellate review of lower court sentences. In some states, of course, the appellate bench effectively abstains from the review of the merits of punishment decisions. (17) In a jurisdiction that chooses to have a meaningful appeals process, however, critical questions arise. Should the appellate courts give great deference to trial court sentences? Substantial deference? Modest deference? Or none at all, as in de novo review? For some purposes, we might even ask appellate courts to scrutinize trial court decisions with skepticism, employing a presumption of incorrectness. This now occurs, for example, in Minnesota in cases in which trial judges have made extremely large jumps above the recommended guidelines penalty. (18)

   Experience across multiple jurisdictions tells us that the most obvious mediating levers of sentencing authority--the trial courts' departure power and the intensity of appellate review--are not the only factors that matter. Other critical variables include (1) the breadth or narrowness of statutory sentencing ranges and guidelines, (2) the simplicity or complexity of factual considerations that must be fed into guidelines calculations, and (3) the presence or absence of black-letter rules affixed to the sentencing process. Narrowed ranges, intricate guidelines considerations, and a rule-bound process all push toward the right on the rule-discretion continuum. In addition, the actual operation of a system depends on a number of informal or extra-legal factors, such as the culture within each...