Pre-Apprendi sentencing: issues surrounding the retroactivity of an unconstitutional sentence.

• Author: Zaldivar, Priscilla S.
• Position: St. Thomas Law Review 25th Anniversary Issue

1. INTRODUCTION

   For over two centuries, the United States Constitution has guaranteed Americans a right to trial by jury in criminal prosecutions. (1) In exercising this right, a jury must apply the "beyond a reasonable doubt" standard to each element of the crime. (2) However, the understanding of what constitutes an "element" of a crime has fluctuated over the years and these changes have had a significant impact on federal sentencing. (3)

   In Apprendi v. New Jersey, (4) one of the United States Supreme Court's most influential decisions on federal sentencing, the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (5) Years later in Blakely v. Washington, (6) the same Court clarified that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (7) Most federal courts have found that the federal sentencing guidelines and statutory minimums fell within the Blakely rule, yet sentencing determinations under these laws required that a judge adjust a defendant's sentence based on post-conviction findings of fact. (8) The Court reserved its ruling in Blakely as to whether its decision applied to the federal sentencing guidelines. (9) In response to the turmoil caused by these decisions, the Court heard two cases, United States v. Booker (10) and United States v. Fanfan (11) concurrently. (12) In an attempt to address the constitutionality of the guidelines without completely abolishing their existence, the Court held the mandatory guidelines were unconstitutional and should therefore be treated as discretionary rather than mandatory. (13) The Court allowed for application of this new rule to cases that were not yet finalized and on direct review. (14) However, defendants that have exhausted their ability to appeal can only rely on habeas corpus review and remain incarcerated under the unconstitutional guidelines. (15)

   The rationale behind the Court's refusal to apply the decisions retroactively (16) has not been addressed. (17) The retroactive application of new standards in the law is not an unfamiliar concept. In the 1950s, the Boggs Act (18) established severe mandatory minimum sentences for drug-related crimes. (19) However, the harsh punishments failed to deter criminal activity as was intended. (20) The legislature withdrew the mandatory minimum sentences and enacted laws primarily focused on rehabilitation. (21) The decision was applied retroactively and those sternly sentenced under the Boggs guidelines received the benefits. (22)

   This comment ventures to provide a manageable resolution to the issues that have arisen from the implementation and subsequent limitations of the federal sentencing guidelines. (23) Part II discusses the sentencing guidelines' history, creation, and evolution. (24) This part also reviews the pertinent cases that have shaped the relevance and application of the sentencing guidelines by the U.S. Supreme Court. (25) Part III details the successful retroactivity of the Boggs Act as a real-world example of the feasibility of retroactivity. (26) Finally, Part IV provides an administrative solution to the problems with retroactive application of the Booker/Fanfan decision in order to remedy the unconstitutional federal sentences being served today. (27)

2. A HISTORY OF FEDERAL SENTENCING REFORM

   The purpose of punishment in a democratic nation has varied over the years: from rehabilitation to retaliation and back again. (28) For a majority of the twentieth century, offenders were sentenced based on the primary objective of rehabilitation. (29) The discretionary system was intended to allow judges to impose just punishment in order to promote the main goal of rehabilitation which may have been lost in the strict criminal justice process. (30)

   Doubts as to the effectiveness of the rehabilitative design drove reformers to establish a structured sentencing model in most jurisdictions. (31) Today, the structured sentencing guidelines are applied on an advisory basis. (32) Understanding the issues surrounding current federal sentencing practices requires a history of the structure and the cases that have shaped today's system. (33)

   1. THE EVOLUTION OF FEDERAL SENTENCING

      Prior to the twentieth century, federal judges were entrusted with extensive sentencing discretion. (34) For nearly two hundred years, there were virtually no cases where an appellate court challenged a federal judge's sentencing discretion. (35) The main focus of prison sentences at the time was the successful reintegration of the offender into society. (36) In furtherance of that goal, the federal system created a parole board that would ultimately determine when an individual would be released from prison. (37) Theoretically, the indeterminate sentencing structure would motivate prisoners to rehabilitate themselves in order to be released from prison early. (38) In the 1970s, however, reformers criticized the system for creating inconsistent sentences (39) and the parole board's decision for premature release was based on discriminatory factors. (40) Others claimed the sentencing disparity was rooted in the individual federal judge's temperament and background. (41) In an attempt to limit sentence disparity and provide predictable punishments, the legislature signed into law the Comprehensive Crime Control Act of 1984, which also included the Sentencing Reform Act ("SRA"). (42) The SRA established a Sentencing Commission intended to be an impartial committee that would establish a new sentencing scheme to eliminate sentence disparity. (43)

      The SRA's primary objectives were to encourage just punishment, provide deterrence of future criminal conduct, confine dangerous criminals, and provide training, medical care, and correctional treatment to offenders. (44) Among other things, the Sentencing Commission abolished the Parole Commission and established sentencing guidelines that required judges to sentence an offender within a specified range. (45) When it enacted The SRA, Congress hoped to eliminate inconsistent and discriminatory punishments by limiting judicial discretion. (46)

   2. SRA SENTENCING GUIDELINES

      The Sentencing Commission was given complete law-making authority unless its decisions were rejected by both houses of Congress and the President. (47) In creating the SRA guidelines, the Commission decided which factors were relevant to sentencing and which should be ignored. (48) Despite the Commission's lack of experience in criminal sentencing, Congress gave the Commission the power to establish severe mandatory sentencing guidelines. (49)

      The SRA guidelines and accompanying sentencing table are exceedingly complex. (50) The guidelines themselves are a detailed explanation of the sentencing table which indicates the current offense on the vertical axis and the defendant's criminal history on the horizontal axis. (51) The table contains forty-three offense levels, six criminal history categories, and a total of 258 grid boxes. (52)

      The offense level, located on the vertical axis, is a determination by the sentencing judge in considering the following: (1) the "base offense level," which is the seriousness of the crime based on the conviction of the statutory elements; (2) "specific offense characteristics," which are factors, aside from the elements of the crime, considered in determining the seriousness of the crime; and (3) additional enhancements permitted under chapter three of the guidelines. (53) Once the judge determines the current offense level and criminal history, the intersecting section of the grid provides the appropriate sentencing range. (54) According to chapter three of the sentencing guidelines, judges are required to increase the guideline range based on additional criminal behavior related to the present offense. (55) In theory, the guidelines not only punish an offender based on the elements of the present crime and his criminal history, but also for his "relevant conduct." (56)

      Once the base offense level has been determined, the judge must then decide whether the relevant guideline factors are present in the case. (57) Each factor requires the judge to add or subtract points that would increase or decrease the offenders "level" and determine the sentence to be imposed. (58) This process virtually eliminated judicial discretion in sentencing and limited the judge's role to an arithmeticoperation. (59)

      The SPA guidelines have been widely criticized for being too harsh and imposing excessive punishments for disproportionate crimes. (60) Since the SPA "abolished parole and requires defendants to serve at least eighty-five percent of the prison term imposed," the average length of sentences has almost tripled and the federal inmate population has increased over 600 percent. (61) During the pre-guideline era, only about fifty percent of federal defendants faced prison time. (62) After the guidelines were established, nearly eighty-five percent of defendants were incarcerated. (63) The judiciary relied less on probation and increased both the length and instance of prison terms. (64)

   3. INTRODUCTION OF MANDATORY MINIMUMS INTO SENTENCING GUIDELINES

      In addition to the limitations placed on the judiciary through the sentencing table, judges were also required, by statute, to increase the guideline range if additional criminal behavior was present. (65) Statutory mandatory minimums had to be complied with in conjunction with the sentencing guidelines. (66) If the guideline range fell below the minimum mandatory sentence mandated by the statute, the minimum mandatory sentence would need to be followed. (67) Despite these additional safeguards to ensure severe sentences were imposed, the guidelines were...