Foreword: beyond Blakely and Booker: pondering modern sentencing process.

• Author: Berman, Douglas A.

The Supreme Court's landmark decision in Blakely v. Washington (1) and its federal follow-up United States v. Booker (2) are formally about the meaning and reach of the Sixth Amendment's right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in the unexplored shadows of the Supreme Court's decisions in Blakely and Booker.

In this foreword, I explain why an important enduring question which emerges from the Supreme Court's recent sentencing jurisprudence concerns whether, when and how procedural issues other than the Sixth Amendment's jury trial right will be addressed after Blakely and Booker. In Part I, I provide a brief account of modern sentencing reform and its neglect of an array of procedural issues. Part II focuses upon the Supreme Court's past and present jurisprudential struggles with procedural rights at sentencing. Part III concludes by briefly sketching some considerations for courts and other key sentencing actors and institutions as they explore what process is due in modern sentencing systems.

1. THE SENTENCING REVOLUTION: MODERN SENTENCING REFORMS AND THE NEGLECT OF SENTENCING PROCEDURES

   1. THE ORIGINS OF THE SENTENCING REFORM MOVEMENT

      Beginning in the late nineteenth century and throughout the first three-quarters of the twentieth century, a highly discretionary, rehabilitative "medical" model was the dominant approach to sentencing. (3) Trial judges in both federal and state systems had nearly unfettered discretion to impose on defendants any sentence from within the broad statutory ranges provided for criminal offenses. (4) Such broad judicial discretion in the ascription of sentencing terms--complemented by parole officials exercising similar discretion concerning prison release dates--was viewed as necessary to ensure that sentences could be tailored to the rehabilitative prospects and progress of each offender. (5) The rehabilitative ideal was often conceived and discussed in medical terms--with offenders described as "sick" and punishments aspiring to "cure the patient" (6)--and sentencing judges and parole officials were thought to have unique insights and expertise in deciding what sorts and lengths of punishments were necessary to best serve each criminal offender's rehabilitative potential. (7) Procedurally, sentencing was really a form of administrative decision-making in which sentencing judges and parole officials, aided by complete information about offenders and unfettered discretionary authority, were expected to craft individualized sentences "almost like a doctor or social worker exercising clinical judgment." (8)

      But through the 1960s and 1970s, criminal justice researchers and scholars were growing concerned about the unpredictable and disparate sentences highly discretionary sentencing systems could produce. Evidence suggested that broad judicial sentencing discretion was resulting in substantial and undue differences in the lengths and types of sentences meted out to similar defendants, (9) and some studies found that personal factors such as an offender's race, gender and socioeconomic status were impacting sentencing outcomes and accounted for certain disparities. (10) Troubled by the disparity and discrimination resulting from highly discretionary sentencing practices--and fueled by concerns over increasing crime rates and powerful criticisms of the entire rehabilitative model of punishment and corrections (11)--many criminal justice experts proposed reforms in order to bring greater consistency and certainty to the sentencing enterprise. (12)

      While concerns about sentencing disparities and discrimination were a catalyst for modern sentencing reforms, the fundamental problem with traditional discretionary sentencing systems was the absence of any defined sentencing law. This was Judge Marvin Frankel's central insight and criticism in commentaries that helped fuel the modern sentencing reform movement over thirty years ago. (13) Sentencing disparity, in Frankel's words, was a symptom of the greater disease of "lawlessness in sentencing." Frankel recognized that, at a time of declining faith in the rehabilitative model, "legislatures [had] not done the most rudimentary job of enacting meaningful sentencing 'laws'," (14) and thus sentencing judges (and parole officials) exercised broad discretion and wielded enormous sentencing power "effectively subject to no law at all." (15)

      Frankel was concerned about not only the absence of substantive sentencing law, but also the questionable procedures through which sentencing decisions were rendered. In a chapter of his book Criminal Sentences: Law Without Order entitled "The Dubious Process," Frankel noted the absence of significant procedural safeguards in discretionary sentencing decision-making, (16) and he suggested that the lack of procedural regularity contributed to "a wild array of sentencing judgments without any semblance of consistency." (17) Frankel expressed particular concern about how information considered at sentencing was assembled and examined. He noted that "presentence investigation represents a sudden and total departure from [a court's usual] fact-gathering procedures," because it provides information to judges that is not "exposed to adversary scrutiny, to rechecking at sources, to cross-examination." (18) Frankel highlighted that, because presentence investigations relied upon ex parte reports from prosecutors and findings were typically not disclosed to defendants, courts at sentencing were often making "grave decisions of law upon untested hearsay and rumor." (19) Frankel lamented that, because the contents of presentence reports originated "from the prosecutor or the prosecutor's files" and were "passed on with little or no independent scrutiny," sentencing decision-making involved a "process of reaching [a sentencing judgment that was] not reflective or orderly." (20)

      Since "lawlessness" was the fundamental problem in discretionary sentencing systems, Frankel urged the development of a "code of penal law" which would "prescribe guidelines for the application and assessment" of "the numerous factors affecting the length or severity of sentences." (21) Moreover, Frankel suggested creating a new institution in the form of a special agency--a "Commission on Sentencing"--to help address lawlessness in sentencing. (22) Embracing the spirit and substance of Frankel's ideas, many experts and scholars soon came to propose or endorse some form of sentencing guidelines to govern sentencing determinations, (23) and urged the creation of specialized sentencing commissions to develop the sentencing law called for by the "guidelines model." (24)

      These calls for reform were soon heeded. Through the late 1970s and early 1980s, a few states adopted a form of sentencing guidelines when legislatures passed determinate sentencing statutes which abolished parole and created presumptive sentencing ranges for various classes of offenses. (25) Minnesota became the first state to turn Frankel's ideas into a full-fledged reality in 1978, when the Minnesota legislature established the Minnesota Sentencing Guidelines Commission to develop comprehensive sentencing guidelines. (26) Washington and Pennsylvania followed suit by creating their own distinctive forms of sentencing commissions and sentencing guidelines in 1981 and 1982, respectively. (27) During the early 1980s, various systems of sentencing guidelines also emerged in Utah, Maryland, Florida and Michigan, although permanent sentencing commissions were not established in these states until years later. (28) The federal government soon thereafter joined this sentencing reform movement through the passage of the Sentencing Reform Act of 1984, which created the U.S. Sentencing Commission to develop guidelines for federal sentencing. (29) Throughout the next two decades, many more states adopted some form of structured sentencing either though mandatory sentencing statutes or comprehensive guideline schemes. (30)

      Though there is considerable variation in the form and impact of structured sentencing reforms, the overall transformation of the sentencing enterprise throughout the United States over the past three decades has been remarkable. (31) The highly-discretionary indeterminate sentencing systems that had been dominant for nearly a century have been replaced by an array of sentencing structures that govern and control sentencing decision-making. Put simply, in response to Judge Frankel's call for reforms, jurisdictions brought law---often lots and lots of law--to sentencing.

   2. A NEGLECT OF SENTENCING PROCEDURES

      The arrival of modern sentencing laws did not come with a new modern set of sentencing procedures. While legislatures and sentencing commissions were revolutionizing the substance of sentencing in an effort to ensure more consistent and rational sentencing outcomes, serious consideration of the procedures of sentencing was essentially overlooked. Legislatures and sentencing commissions have committed much time and energy to enacting laws and developing guidelines to govern substantive sentencing decisions, but they have given scant attention to regulating the processes through which judges obtain and assess the information that serves as the basis for reaching these decisions. Despite creating a significant body of substantive sentencing law, legislatures and commissions in most jurisdictions have left largely unaddressed fundamental issues such as notice to parties, burdens of proof, appropriate fact-finders, evidentiary rules, and hearing...