Friday, January 14, 2005

United States v. Booker

On Wednesday the Supreme Court issued an important and extremely complicated opinion, Booker, which transforms criminal sentencing in the federal courts. My non-legal readers may find what follows complex, but I've tried to break it down, and it is necessary to get to my "Social Gospel analysis" of the opinion.

Under the previous sentencing regime - the controversial federal sentencing guidelines - judges sentenced offenders by (1) finding aggravating facts and (2) imposing a sentence based a schedule taking those facts into account. Thus, if defendant is convicted of robbery by a jury, a judge at sentencing may find that he possessed a gun and, in effect, tack on 1 year to the sentence. The main crime was robbery, which justified a sentence within a range. The finding of an aggravating factor, like a gun, required the judge to sentence towards the higher end of the robbery range.

In Booker, the Supreme Court said that this scheme violated the right to trial by jury. To understand why, take an extreme example: suppose a defendant is sentenced to life for murder because (1) a jury found as a fact that someone died and (2) a judge found aggravating sentencing factors that the defendant caused the death and intended to cause it. Would that really be a jury trial for the crime of murder? No because the judge found the important facts, not the jury.

In Booker, the Supreme Court carried this line of reasoning to its utmost conclusion. The right to trial by jury, said the court, entitles the defendant to have the jury find all of the facts that go into his sentence. So if a defendant is to be sentenced for robbing a store with a gun, then the jury has to find that he robbed the store and that he had a gun. They must convict him of the crime of "robbing with a gun." They must find all facts beyond a reasonable doubt.

But the actual effect of the decision isn't what one would expect. Under the previous scheme, the main crime was robbery -- which justified any number of sentences within a large range. The "sentencing factors" were merely constraints on the judge as to how he or she could sentence within that range. Once the Court says that the sentencing factors are unconstitutional because they are facts found by the judge which affect the defendant's sentence, the effect is to put totally unconstrained discretion back in the judge's hands. Now the jury has convicted of robbery and the judge can sentence from 1 to 20 years according to what he or she thinks is just punishment regardless of whether there are aggravating factors like possessing a gun or not.

I'm oversimplifying a bit: the decision doesn't directly hold the guidelines unconstitutional; it does say that they aren't binding on judges -- which basically means the judges don't have to follow them if they don't want to. As Linda Greenhouse put it:

The Supreme Court on Wednesday transformed federal criminal sentencing by restoring to judges much of the discretion that Congress took away 21 years ago when it put sentencing guidelines in place and told judges to follow them.
As an adherant of the Social Gospel, I assess all social decisions like this with an eye to the least of these -- to those who suffer persecution and subordination. In the criminal law context, my concern is almost always with criminal defendants, who I believe are often treated unfairly (e.g., discriminated against on the basis of race and wealth) and in general treated with far too much vengeance and severity.

The problem is that it is difficult to make heads or tails of this decision in those terms.

On the one hand getting rid of the sentencing guidelines (or at least making them non-mandatory) is a very good thing. The sentences mandated by the guidelines were often excessively harsh. Judges imposing them often felt what they were doing was unjust. A few resigned in protest. Thus, insofar as making the guidelines discretionary allows judges to "have a heart" and take some of the destructive, vengeful sting out of federal sentences, this decision is a good thing.

On the other hand, there at least are two aspects of the decision which concern me. First, Congress could just reenact a law keeping the harsh guidelines in place but providing that juries find the aggravating factors. This would satisfy the constitutional requirements of Booker, and it would leave criminal defendants in just as bad a shape as before (or worse) -- that is, at least if you believe, as I do, that juries are no more sympathetic to the plight of the accused criminal than judges are.

Second, the discretion given to judges by the opinion to sentence according to their consciences (which remains in place unless Congress acts as described above), is by no means a panacea. The purpose of sentencing guidelines wasn't just to make sure that the criminal system got its pound of flesh from each criminal defendant. They also had the benign purpose of ensuring that defendants weren't discriminated against according to race, sex, poverty, etc. If judges have to sentence by a schedule, there's no room for the rampant prejudice that we find all too often in the criminal system. The Booker decision, in the absence of Congressional action, opens the floodgates to a system in which the poor and minorities receive higher sentences if for no other reason than the fact that it is more difficult for upper-class (often white) judges to sympathize with them than it is for them to sympathize with people "more like them."

In short, I am very conflicted about this decision. I can't say for sure whether it serves or undermines the good of the least of these.

I can say that something needs to be done about the excessive retributive length of criminal sentences. It is this substantive injustice -- not the procedural question of who decides -- which is the real Social Gospel problem.


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