Volume 160, Issue 6 
May 2012

Sentencing Guidelines at the Crossroads of Politics and Expertise

Rachel E. Barkow

When Minnesota created the first sentencing commission in 1978 and the first sentencing guidelines in 1980, it was hard to predict where the guidelines movement would go. More than three decades and twenty sentencing guideline regimes later, it is still not easy to foresee what will become of sentencing commissions and guidelines. The past decade alone has witnessed tremendous changes in sentencing law and policy that were hard to imagine even just a few years before they occurred. The Supreme Court’s landmark sentencing decisions in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker, the reform of federal crack cocaine laws, and a financial crisis that has sparked significant sentencing reforms have all been monumental and, to some extent, unexpected developments. These seismic shifts will undoubtedly alter the landscape going forward in similarly unpredictable ways.

As this Symposium looks to the future and what it holds for sentencing guidelines, it is important to proceed with caution and a healthy dose of modesty. None of us really knows what will happen. But one helpful way to approach the future is to reflect on some of the key lessons we have learned in the more than thirty years with sentencing commissions and guidelines. There have been consistent themes and struggles, and there is no reason to believe these core issues will dissipate going forward. In this Article, I highlight these struggles and analyze how they can productively guide the future of sentencing guidelines.

Booker Rules

Amy Baron-Evans & Kate Stith

In United States v. Booker, the Supreme Court excised two provisions of the Sentencing Reform Act of 1984 (SRA) that had made the Sentencing Guidelines binding on sentencing judges: 18 U.S.C. § 3553(b), the provision that had confined departures to specified, limited circumstances, and 18 U.S.C. § 3742(e), the standard of review under which courts of appeals had enforced those limitations. The Court made the law of sentencing the purposes and factors set forth in 18 U.S.C. § 3553(a), and the standard of review for all sentences, inside or outside the guideline range, the “reasonableness” of the sentencing judge’s application of that law.

The mandatory guidelines system Booker replaced was badly out of balance in ways never contemplated by the framers of the SRA or the Supreme Court when it upheld the U.S. Sentencing Commission against separation-of-powers challenges. Yet Booker was initially met with resistance by the Commission and the Department of Justice, and many lower courts continued to treat the guidelines as “virtually mandatory.” In subsequent decisions, the Supreme Court firmly insisted that the guidelines are—and must be—advisory only. The result has been a gradual but marked improvement in the quality, transparency, and rationality of federal sentencing, in both the sentencing of individual defendants and the Commission’s rulemaking. The advisory guidelines system has broad support: the vast majority of federal judges believe that advisory guidelines achieve the purposes of sentencing better than any kind of mandatory guidelines system or no guidelines at all, the Criminal Law Committee of the Judicial Conference of the United States supports the advisory guidelines system, prosecutors prefer advisory guidelines to other available options, and the organized public and private defense bars support the advisory guidelines system.

Nevertheless, a former Chair of the Sentencing Commission and the current Commission itself have each proposed that Congress enact a Booker “fix.” Former Commission Chair Judge William K. Sessions III proposes “the resurrection of presumptive (formerly called ‘mandatory’) guidelines,” with enhancing facts to be charged in an indictment and proved to a jury beyond a reasonable doubt or admitted by the defendant. The Commission proposes codification of a variety of devices designed to give its guidelines, as well as its restrictions on non-guideline sentences, increased weight at sentencing, and to more strictly enforce the guidelines on appeal. These proposals—seeking to fix a system that, far from being broken, is actually working properly for the first time—are unwise, unworkable, and likely unconstitutional.

Proportionality and Parole

Richard A. Bierschbach
Commentators analyzing the Supreme Court’s watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping-off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the State to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole’s constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation.

The New Civil Death: Rethinking Punishment in the Era of Mass Conviction

Gabriel J. Chin

Borrowing from its English forebears, the United States once had a form of punishment called civil death. Civil death extinguished most civil rights of a person convicted of a crime and largely put that person outside the law’s protection. Civil death as an institution faded away in the middle of the twentieth century. Policymakers recognized that almost all convicted persons eventually rejoin society, and therefore, it was wise and fair to allow them to participate in society with some measure of equality.

This Article proposes that civil death has surreptitiously reemerged. It no longer exists under that name, but effectually a new civil death is meted out to persons convicted of crimes in the form of a substantial and permanent change in legal status, operationalized by a network of collateral consequences. A person convicted of a crime, whether misdemeanor or felony, may be subject to disenfranchisement (or deportation if a noncitizen ), criminal registration and community notification requirements, and the ineligibility to live, work, or be present in a particular location. Some are not allowed to live outside of civil confinement at all. In addition, the person may be subject to occupational debarment or ineligibility to establish or maintain family relations. While the entire array of collateral consequences may not apply to any given person, the State is always able to add new disabilities or to extend existing limitations. As a practical matter, every criminal sentence contains the following unwritten term:

The law regards you as having a “shattered character.” Therefore, in addition to any incarceration or fine, you are subject to legal restrictions and limitations on your civil rights, conduct, employment, residence, and relationships. For the rest of your life, the United States and any State or locality where you travel or reside may impose, at any time, additional restrictions and limitations they deem warranted. Their power to do so is limited only by their reasonable discretion. They may also require you to pay the expense of these restrictions and limitations.

For many people convicted of crimes, the most severe and long- lasting effect of conviction is not imprisonment or fine. Rather, it is being subjected to collateral consequences involving the actual or potential loss of civil rights, parental rights, public benefits, and employment opportunities.

The magnitude of the problem is greater than ever. The commonly used term “mass incarceration” implies that the most typical tool of the criminal justice system is imprisonment. Indeed, there are two million people in American prisons and jails, a huge number, but one which is dwarfed by the six-and-a-half million or so on probation or parole and the tens of millions in free society with criminal records. The vast majority of people who have been convicted of crimes are not currently in prison. However, because of their criminal records, they remain subject to governmental regulation of various aspects of their lives and concomitant imposition of benefits and burdens. People convicted of crimes are not subject to just one collateral consequence, or even a handful. Instead, hundreds and sometimes thousands of such consequences apply under federal and state constitutional provisions, statutes, administrative regulations, and ordinances. As one Ohio court recognized in 1848, “[D]isabilities . . . imposed upon the convict” are “part of the punishment, and in many cases the most important part.”

Why Proportionality Matters

Youngjae Lee

The Supreme Court decided recently in Graham v. Florida that the Eighth Amendment prohibits a sentence of life in prison without parole for a nonhomicide crime committed by a minor. In its decision, the Court stated that “[t]he concept of proportionality is central to the Eighth Amendment” and that it is the “precept of justice that punishment for crime should be graduated and proportioned to [the] of- fense.” What about proportionality makes it a matter of justice? And how does proportionality cohere with our constitutional values? This Article addresses these questions.


Sentencing: A Role for Empathy

Denny Chin

Is empathy an important trait for a judge? Is there a role for empathy in the law? What about the related concept of emotion? Is it correct that “[a] good judge should feel no emotions” and that “the ideal judge is divested ‘of all fear[], anger, hatred, love, and compassion?’”

. . .

In this Essay, I will consider the role of empathy and emotion in sentencing. I do so from the perspective of someone who has sentenced hundreds of individuals. I was a trial judge for almost sixteen years, during which time I was assigned 699 criminal cases with 1256 defendants. The vast majority were convicted—after a guilty plea or trial—and I was required to sentence them. In doing so, I came to understand and appreciate the importance of empathy and emotion in sentencing.

Sentencing involves both process and substance. First, a sentencing court must comply with all procedural requirements. Second, the sentencing court must also impose a sentence that is substantively reasonable and falls “within the range of permissible decisions.” The sentencing judge must take certain substantive factors into account. A failure to do so will constitute procedural error and may also lead to a sentence that is substantively unreasonable. Consideration of both the procedural and the substantive aspects of sentencing is important to determine the proper role, if any, of empathy and emotion in sentencing. Accordingly, first, I discuss the sentencing process; second, I discuss the substantive considerations that bear on the sentencing decision; and, third, I discuss the role of empathy and emotion in sentencing.

On Competence, Legitimacy, and Proportionality

Nancy Gertner

I asked Justice Aharon Barak, then president of the Israeli Supreme Court, why he considered himself competent to decide where the wall between Israel and the Palestinian territories should be located and further, why it was legitimate for him, a judge, to do so. The Israelis claimed that the wall was critical for the country’s security. The Palestinians insisted that the barrier violated international law by severely restricting the ability of Palestinians to travel freely and to access work in Israel. Justice Barak answered, “As a judge, I don’t pretend to know anything about security. But I know about proportionality. I know how to balance the security interests of the state against the rights of the Palestinians.” His response was not unusual for justices of

constitutional high courts in common law countries—except in the United States. No other common law judge is likely to doubt his competence to use proportionality analysis in any number of areas or the legitimacy of the approach. Indeed, proportionality analysis has become a critical part of international human rights adjudication. While the use of proportionality analysis is widespread in constitutional courts throughout the world, sentencing is an area in which it is perhaps the most critical and has the oldest pedigree. Retributive theories of punishment use the proportionality principle to assign criminal blame; no offender should be punished more harshly than the crime deserves. Prior to mandatory sentencing guidelines and mandatory minimum sentencing, proportionality analysis was part of the sentencing judge’s toolkit in an individual case. In most common law countries with appellate review of sentencing, it was also the means by which appellate courts reviewed lower court sentences. To be sure, it was not a perfect approach and was hardly capable of mathematical precision, but it was accepted.

Except in the United States. Let me make a preliminary observation: a common theme links the Supreme Court’s Eighth Amendment jurisprudence in which some Justices debate whether there is a constitutional proportionality principle in noncapital sentencing at all; the federal appeals courts’ inability to give meaning to substantive reasonableness sentencing review even after United States v. Booker freed them to do so; and the United States Sentencing Commission’s inability to rank offenses based on any coherent proportionality principle. The theme (which I find quite troubling) is that proportionality analysis is simply not within the competence of the American judiciary. Worse yet, it is not even within their legitimate role; it is somehow too policy-centered, too “activist.” It is a task best left to the legislature, or in the case of the federal sentencing guidelines, to an “independent” agency in the judicial branch the United States Sentencing Commission—but at all costs, not to the courts.

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