Putting 'Guide' Back In Guidelines

Attorney Andrew Cohen analyzes legal issues for CBSNews.com and CBS News.

Justice Stephen Breyer said as much in his majority opinion when he said "the ball now lies in Congress' court." Either go back to the old, traditional manner of sentencing where judges had plenty of discretion to determine the length of an offender's prison term or chart a new course in which judges have even less discretion than they have now under the current federal sentencing guidelines. Either way, five justices agreed, the sentencing rules as they now exist cannot stand because they push judges toward sentences that exceed constitutional limits.

Wednesday's decisions in two federal sentencing cases, out of Wisconsin and Maine, are the natural extension of a ruling the justices made last June, when the court by the same 5-4 majority ruled that the state of Washington's sentencing scheme violated a person's right to a trial by jury. In Washington, as in Wisconsin and Maine, judges had enhanced a suspect's prison sentence based upon facts that had not been presented to a jury and proven beyond a reasonable doubt. The Court's ruling in the Washington case last term created such an uproar that the Justices had to select the Wisconsin and Maine cases to resolve early this term in order to try to settle the row.

Not surprisingly, one of the case cases the Justices selected, United States v. Booker, perfectly illustrates the problem the court faced. A federal jury legitimately found Freddie Booker "guilty of possessing at least 50 grams of crack cocaine based upon evidence that he had 92.5 grams. Under those facts, the (federal sentencing) guidelines required a possible 210-to-262-month sentence. To reach Booker's actual sentence — which was almost 10 years longer — the judge found that he possessed an additional 566 grams of crack. Although, the jury never heard any such evidence, the judge found it to be true by a preponderance of the evidence," a standard short of the reasonable doubt standard we see in criminal cases.

Now you might think that the extra time isn't a big deal, and that a "preponderance of the evidence" standard of proof, which is the same standard used in civil cases, is appropriate during the sentencing phase of a case when the offender's guilt no longer is in question. After all, judges for decades had relied almost exclusively upon the pre-sentencing reports generated by probation officers; reports that typically got to a judge after trial. But if you are Freddie Booker, the difference between 10 years and 20 years is a big one, and a constitutional one. And the beauty of the old system, the system before the sentencing guidelines came into existence, is that judges were generally free to use their discretion to sentence a convicted criminal — to base a sentence upon the facts of the case but also take into account a defendant's history and background and expression of remorse and involvement in the crime.

That discretion turned out to be both a beauty and a curse, however, and it ultimately spawned the guidelines after politicians complained of widely disparate sentences handed out to individuals who had essentially committed the same crime. In other words, before the guidelines, a convicted rapist in Mississippi might have received a far greater sentence than a convicted rapist in New Mexico. The guidelines were intended to bring uniformity and consistency to sentencing and, of course, "uniformity" and "consistency" are the antithesis of "discretion." The guidelines also were intended to express the will of Congress to make judges tougher on crime, to preclude or at least hamper the "bleeding heart" jurist from cutting a convict a break.

For 20 years or so, the fragile balance held. Judges grumbled but usually applied the guidelines. States around the country generated similar schemes. And politicians of all stripes could look to the rules and say that they were both tougher on crime (by pushing sentences like Booker's higher) while continuing to be consistent from region to region. But gradually, however, the courts noticed that legislatures around the country, including Congress, began to require heavier sentences and increased sentencing ranges for certain types of crimes. Because the punishments were greater, and because judges were pushed to impose heavier sentences without being equally allowed to depart downward from the guidelines, the balance became imperiled. And now it is broken.

"The new sentencing practice," the Booker majority wrote, "forced the court to address the question how the right of jury trial could be preserved, in a meaning way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing scheme." The justices' answer is now clear. The guidelines are now there only to "guide" judges toward a particular sentence. But if a judge does not impose a higher sentence prosecutors no longer will have at their disposal an unassailable argument to make on appeal. The net result? Back to the future. Judges today have more discretion than they did yesterday to impose a sentence.

But perhaps not as much discretion as they will have tomorrow, or the day after tomorrow. My sense of Congress is that there will now be a big push to change federal law in order to "fix" the problems the court has identified. We could see a change to the guidelines themselves or a change to the substantive sentencing laws that simply raises the sentencing range for a series of crimes. That way, the guidelines will be less important because judges will be required to impose higher sentences anyway. And if and when those sentences get too high, the Supreme Court again will intervene with a ruling that strikes down a sentence as "cruel and unusual."

The rulings are a victory for the jury system. The majority declared that a defendant's constitutional right to a trial by jury supersedes the right of the government to employ rules that put people in prison longer for facts not found by a jury. After years of being pushed around by Congress and the executive branch, which promulgated and oversees the guidelines (even as conflicted prosecutors follow them), the courts have pushed back. That's good news for Booker and thousands like him; thousands who have been given longer sentences based upon facts a jury never heard. If you think last term's sentencing ruling created chaos and uproar in the world of the law, just wait; you haven't seen anything yet.

By Andrew Cohen