Reconciling The Booker Conflict: A Substantive Sixth Amendment in a Real Offense Sentencing System

• Author: Bertrall L Ross
• Position: J.D. Yale Law School
• Pages: 725-778

Page 725

Law Clerk, The Honorable Dorothy Nelson, Ninth Circuit Court of Appeals, 2006-2007; J.D. Yale Law School, May 2006; M.P.A. Princeton University, Woodrow Wilson School of Public and International Affairs, 2003; M.Sc. London School of Economics and Public Affairs, 2001, B.A. University of Colorado, Boulder, 1998. I would like to thank the Honorable Nancy Gertner, District of Massachusetts and the participants in the Yale Law School Sentencing Seminar for helping me think through the issue, the editors of the Cardozo Public Law, Policy, and Ethics Journal for their great editing work, and most importantly Joy Milligan for her tremendous support in reading and helping to revise several drafts.

Introduction

A federal jury found Freddie Joe Booker guilty of possession with intent to distribute 92.5 grams of crack cocaine.¹ As a result, Booker faced a minimum of 210 months and a maximum of 262 months in prison. At one point in United States history, the judge would have been required to sentence Booker within the sentencing range of the crime of conviction. In the Booker case, however, the judge during sentencing made additional findings of fact concluding that Booker actually possessed with the intent to distribute an additional 566 grams of crack cocaine. The jury, once noted as the "bulwark" of our liberties and protector against oppressive government power, could not constrain the judge's power to sentence on the basis of these additional facts.²Booker now faced a sentence of 360 months to life, at least eight years greater than the sentence appropriate for the crime of conviction on the basis of the jury determination.

The case of Freddie Joe Booker showcased a tension in sentencing. Should Booker's sentence have been based purely on the crime of conviction? An argument in favor of basing Booker's sentence on the crime of conviction is supported by a broad and substantive understanding of the Sixth Amendment right to trial by jury.³This understanding recog-Page 726nizes that trial does not simply mean guilt determination. Trial also encompasses sentencing. As a result, a jury role in sentencing is just as important as a jury role in determining guilt to protect the individual against the oppressive power of the state. According to this understanding, in the Booker case, the ultimate sentence should be based on the jury's conviction and the judge should have been constrained by the maximum guideline sentence for the crime of conviction, which was 262 months.

On the other hand, what if Booker did possess 566 additional grams of crack cocaine for distribution? Should Booker be subjected to the same sentence as someone that only possessed 92.5 grams of crack cocaine for distribution? There is a strong argument for individualizing sentences on the basis of all factors related to the crime of conviction (real offense factors). The judge, free from procedural and evidentiary constraints, may be best situated to individualize the sentence based on the finding of real offense factors. If the judge is not provided with this power to find additional facts related to the crime then prosecutorial charging decisions will be the basis for individualizing sentences.⁴In other words, the determination of whether Booker faces a term of 210 to 262 months or 360 months to life would be based on what the prosecutor decides to charge rather than what the offender did. The question posed to those that support a substantive Sixth Amendment is whether it is better to have a biased prosecutor or a neutral judge individualize the sentence.

The case of Freddie Joe Booker reveals the conflict between a substantive Sixth Amendment right to trial by jury and individualized, real offense sentencing. A substantive Sixth Amendment, in which the jury stands as a bulwark between the individual and the state, requires a jury role in all findings of fact that lead to, and increase, the sentence. Real offense sentencing requires the judge to find additional aggravating⁵andPage 727mitigating factors⁶related to the crime of conviction in order to individualize the sentence for each offender.⁷This conflict came to a head in the Supreme Court case of United States v. Booker⁸

While the majority in the substance opinion (Booker I) espoused the virtues of the jury as a bulwark between the individual and the government and as a check on the imposition of sentences by judicial actors, another majority in the remedy opinion (Booker II) nullified the jury role in favor of maintaining a system of individualized, real offense sentencing.⁹The resolution of the case is a testament to the importance of real offense sentencing. The Booker II majority, in essence, held that the need for real offense sentencing overrode the Sixth Amendment constitutional imperative. The resolution is also a testament to the fact that the Supreme Court is willing to allow the judicial power over sentencing to go unchecked and to limit the jury's role to that of determining guilt.

The conflict between a substantive right to trial by jury and a system of individualized sentencing was not inevitable and it is not irreconcilable. The conflict grew out of a fundamental mismatch that resulted from a separation of functions sentencing framework, derived from a rehabilitation theory of sentencing being mapped onto a guideline sentencing system based on a retributive theory of punishment. The separation of functions framework understood sentencing to be separate and distinct from guilt determination. Under this framework, the jury determined guilt, and the judge, alone, determined the sentence.¹⁰Dur-Page 728ing rehabilitation era real offense sentencing,¹¹this separation of functions framework was consistent with a substantive understanding of the Sixth Amendment because, in theory, judges sentenced based on the necessary level of treatment, not on the appropriate level of punishment. Therefore a role for the jury as a bulwark between the individual and the state at sentencing was unnecessary. When retribution replaced rehabilitation in the guidelines era, sentencing predominantly served the purpose of punishment, not treatment. A jury's role in sentencing under the Sixth Amendment became vital, but the separation of functions framework persisted. As a result, a conflict between judge-based individualization of sentences and a substantive understanding of the Sixth Amendment developed.

The two goals can be reconciled by putting aside the separation of functions framework. Sentencing, under the current retributive punishment model, should be understood as a component of the trial for which a jury role is imperative. This does not mean that the judge's function should be merely ministerial. However, any discretion to sentence above the maximum of the crime of conviction should be subject to jury oversight and check. Under the punishment model, the judge should be able to engage in the individualization of sentencing on the basis of real offense factors, but the jury is constitutionally required to serve as a bulwark between the individual and the government at sentencing.

This article will advocate for such a system of jury check on judicial discretion at sentencing. It will be argued that in a system based on a punishment model, the jury has a constitutionally protected substantive role to play in checking government power under a sentencing system in which judges are allowed to aggravate sentences on the basis of factors not found by the jury. It will also be argued that this role of the jury can coexist alongside a system of real offense sentencing that both individualizes sentencing and maintains the balance of power between the prosecutor and the judge at sentencing.

This article will proceed in four parts. The first part will describe the conflict between real offense sentencing¹²and a substantive under-Page 729standing of the Sixth Amendment as exemplified in Booker. The second part will describe the sources of the conflict between a substantive understanding of the Sixth Amendment and a system of real offense sentencing. This historical examination will identify the emergence and evolution of real offense sentencing during three distinct eras that embodied different purposes of sentencing: the colonial era and early Republic, the rehabilitation era, and the guidelines era. This part will also briefly examine the emergence and development of the separation of functions framework that became the primary source of the conflict between individualized, real offense sentencing and a substantive Sixth Amendment during the guidelines era. Finally, this part will examine a series of cases leading up to Booker that recognized the conflict between a substantive Sixth Amendment and real offense sentencing under the guidelines era punishment model of sentencing and tried unsuccessfully to reconcile the conflict within the separation of functions framework. Part three will discuss the primary post-Booker...