Mr. Madison meets a time machine: the political science of federal sentencing reform.

• Author: Bowman, Frank O., III

INTRODUCTION I. THE CONSTITUTION AND THE BALANCE OF SENTENCING POWER A. The Spheres of Congressional and Judicial Power in Federal Sentencing B. The Justice Department and Its Prosecutors II. THE STATE OF FEDERAL SENTENCING A. The Advent of the Guidelines B. The Failure of the Guidelines C. Prosecutorial Power Under the Guidelines D. The Alliance of Congress and the Department of Justice E. The Federal Budget and Federal Sentencing F. The Sentencing Commission III. SOME PRESCRIPTIONS A. What To Do 1. Booker is not the answer 2. The virtues of simplicity B. The Conditions Necessary for Success 1. Contributions from the Supreme Court 2. Contributions from the Sentencing Commission 3. Hopeful auguries of change in the country's mood CONCLUSION INTRODUCTION

Careful analysis of the twenty-year-old federal experiment with structured sentencing suggests one overriding conclusion about the design of sentencing systems: a sentencing system that sensibly distributes power--both the power to make sentencing rules and the power to determine sentences in particular cases--among the institutional sentencing actors is likely to work pretty well. Conversely, a system that concentrates sentencing power disproportionately in the hands of one or even two institutional sentencing actors is headed for trouble. The federal sentencing experience of the past three decades is a case study in Madisonian political theory. (1) It demonstrates that a governmental system that fails to erect a properly conceived set of checks and balances against the inevitable tendency of political actors toward personal and institutional self-aggrandizement is prone to degenerate into a despotism of the most powerful branch or, as Madison particularly feared, into an alliance of two branches against the third. (2)

The current federal sentencing regime, with its Sentencing Commission and complex Guidelines, was intended to insulate the process of making sentencing rules from the passions of politics. But as we will see, the architects of the system miscalculated and created a sentencing structure almost perfectly designed for capture and manipulation by the political branches. The existence of this structure in combination with a variety of other factors has produced a time machine. Not an H.G. Wells time machine that travels in the fourth dimension, (3) but a machine whose only product is incarcerative time, a machine controlled by a so-far indissoluble alliance between Congress and the Justice Department.

In previous articles (4) I have analyzed the structural failures of the Federal Sentencing Guidelines system, particularly the imbalances it has created among the primary institutional sentencing actors--Congress, the judiciary, the Justice Department, and the U.S. Sentencing Commission--and have proposed a simplified guidelines system designed to address the current system's structural flaws (5) and to be consistent with the Supreme Court's developing Sixth Amendment jury trial jurisprudence. (6) However, neither a failure analysis nor the prescription for a revised system is of much practical value unless these institutions can interact in ways that will permit reform to occur. Consequently, this Article considers the politics and political science of federal sentencing reform. (7) More particularly, it asks whether the twenty-first-century custodians of Madison's eighteenth century model of government can use that model's tools to disassemble the federal time machine and erect in its place a more balanced and beneficent sentencing system.

The Article proceeds in three Parts. First, it sketches the constitutional relationship between Congress, the judiciary, and the Department of Justice in the field of criminal sentencing. Second, it describes the current state of federal sentencing in terms of the relations between the primary institutional players, with particular attention to the Supreme Court's decision in United States v. Booker declaring the Federal Sentencing Guidelines unconstitutional as then applied. Finally, it analyzes the prospects for significant positive change in the near term and suggests a set of preconditions for improving those prospects.

1. THE CONSTITUTION AND THE BALANCE OF SENTENCING POWER

   1. The Spheres of Congressional and Judicial Power in Federal Sentencing

      The institutional actors in federal sentencing have at various times included Congress, the judiciary, the Justice Department, the defense bar, the United States Parole Commission, and the United States Sentencing Commission.

      Only the first four have a constitutionally mandated permanent place in the political calculus of sentencing, (8) and of the four permanent sentencing players, only Congress and the federal judiciary have traditionally played a direct role in making, interpreting, and implementing sentencing rules. For that reason, and because tension between Congress and the federal judiciary is so obvious a part of the current federal sentencing landscape, (9) I begin by considering the spheres of congressional and judicial power in federal sentencing.

      First, legislatures in modern American practice have virtually plenary power to define crimes. (10) The ancient common law power of judges to define new crimes through adjudication survives, if it does at all, only as a vestigial practice in a tiny number of states, and then only as to misdemeanors and petty offenses. (11)

      Second, at present, legislatures also have virtually plenary power to set the punishments attendant upon conviction of a crime. (12) The only constitutional limitation on the type or severity of punishment a legislature may assign to conviction of a crime is the Cruel and Unusual Punishments Clause of the Eighth Amendment. (13) The Supreme Court's Eighth Amendment jurisprudence has produced a lush thicket of substantive and procedural constraints on the imposition of the death penalty, (14) but its recent cases have imposed scarcely any meaningful limitation on the imposition of incarcerative punishments. (15)

      Third, when we speak of the legislative power to define a crime, we mean that the legislature's specification of a set of facts which must be proven for criminal liability to attach and its specification of the punishment attendant upon proof of that set of facts are inextricably linked components of the single legislative act of crime definition. This is the central insight of the Supreme Court's Sixth Amendment jury trial jurisprudence in Apprendi v. New Jersey, (16) Blakely v. Washington, (17) and United States v. Booker. (18) These cases say, in effect, that a "crime" consists of a designated list of facts that trigger eligibility for a designated range or quantum of punishment. If proof of a fact affects the range or quantum of punishment (at least in certain ways) then that fact becomes part of the definition of a "crime," and thus subject to the full panoply of procedural protections associated in the Bill of Rights with criminal trials. (19)

      Fourth, while Congress can neither adjudicate individual civil or criminal cases (except those involving impeachment (20)) nor impose criminal sentences on individual defendants, (21) it can establish rules of evidence (22) and procedure (23) governing the adjudication of guilt and the imposition of punishments by the courts. In the Sentencing Reform Act of 1984, (24) Congress delegated the task of drafting sentencing rules to the U.S Sentencing Commission, but provided that the rules could not go into effect until Congress approved them. (25) Moreover, Congress reserved to itself the power to disapprove of subsequent Guidelines amendments promulgated by the Commission, (26) to recommend or direct that the Commission enact amendments, (27) and to amend the Guidelines directly by statute. (28)

      Fifth, the Supreme Court has consistently held that Congress can make sentencing rules itself or delegate their making to a sentencing commission. (29) When the Court finally found the Guidelines unconstitutional in United States v. Booker, it did so based not on their substance, but on a question of procedure--the identity of the sentencing fact-finder. (30) Nothing in Booker suggests any limitation on congressional power to legislate exactly the same sentences called for by the Guidelines based on exactly the same facts. (31) The only meaningful constitutional constraints on congressional sentencing authority are procedural limits imposed by the Sixth Amendment jury trial clause and the largely latent Due Process Clauses. At present, the Sixth Amendment requires that a jury decide any fact other than one relating to criminal history (32) which, if proven, would increase a defendant's maximum sentencing exposure. (33) However, in Harris v. United States, the Court held that judges could find facts generating mandatory minimum sentences. (34) And the Booker remedial majority strongly suggests that facts which increase a maximum presumptive sentence can be found by judges, so long as judges retain some as-yet-undefined degree of discretion to impose sentences greater than that presumptive maximum. (35) The Court could elect to impose more significant due process constraints on sentencing proceedings before judges, but it has so far been reluctant to do so. (36)

      Sixth, while a good many people intuitively feel that the determination of individually tailored sentences for criminal defendants is an integral part of the judicial function, (37) that view has, at present, no constitutional foundation. After all, the Constitution requires only one Supreme Court, leaving the creation of lower federal courts to the discretion of Congress. (38) The Judiciary Act of 1789, which commentators often accord quasi-constitutional status, granted lower federal courts jurisdiction over certain criminal matters, but that grant included no reference to judicial sentencing authority. (39) Over the years, the Supreme Court has held that Congress can constitutionally...