A couple weeks ago, the Supreme Court narrowly denied cert in Jones v. United States, which raised an important Sixth Amendment sentencing question—namely, whether it is constitutional for judge-found facts to render a defendant’s sentence substantively reasonable. (Here’s some coverage from Doug Berman on Sentencing Law and Policy and more from Will Baude at the Volokh Conspiracy.) Dissenting from the Court’s denial of cert, Justice Scalia suggested that substantive reasonableness review raises fatal constitutional problems under cases like Apprendi v. New Jersey. But I’m not so sure.
Under Apprendi and related cases, the Sixth Amendment requires that juries (not judges) find all facts that increase defendants’ sentences (either the maximum or the minimum). Imagine, for example, that theft has a sentencing range of 0-10 and theft using a firearm has a range of 0-15. If a defendant is convicted of theft, can a judge find that the defendant used a firearm and impose 15? No. In Booker and related cases, the Court extended this principle to sentencing guidelines. So imagine that theft has a range of 0-15, but sentencing guidelines dictate a punishment of 10 unless the defendant used a firearm. The sentencing guideline would then operate just like the theft statute in the first example. It would set a ceiling that could be exceeded only if a judge found a fact—namely, that the defendant used a firearm. The solution adopted in Booker was to make the guidelines advisory, so that the Sixth Amendment ceiling in the last hypo would be set by the mandatory 0-15 statute, not by the advisory guideline. So far, so good.
The new frontier in this area has to do with reasonableness review. After Booker, the guidelines are advisory, but federal courts of appeals still review sentences for procedural and substantive reasonableness. In Rita v. United States, the Court gave some guidance about how to conduct this review, and Justice Scalia drafted an insightful concurrence that foresaw a problem to come. Scalia’s concern was that, as appellate courts established a jurisprudence of substantive reasonableness, the result would be a set of effective sentencing maxima. To adapt the earlier example, imagine that the statutory sentencing range for theft is 0-15 and that a court of appeals finds that a sentence of more than 10 is reasonable only if accompanied by a factual finding that the defendant used a firearm. The upshot would be that a sentence of 10 would have become the maximum possible sentence without any judicially found facts. Sentences over that amount would then violate the Sixth Amendment, even if a judge found that the defendant used a firearm.
The Court just denied cert in the first strong vehicle for review of this question, with Justice Scalia and two of his colleagues, Justices Thomas and Ginsburg, dissenting. (The fact that Justice Ginsburg joined the dissent is especially noteworthy, because she was the swing vote in favor of the Booker remedy and so is largely responsible for the current doctrine of substantive reasonableness review.) The constitutionality of post-Booker substantive reasonableness review is definitely an important question that the Court should eventually resolve. But I’m not so sure that the Court should extend Booker and find a violation in this context. My hesitancy stems from important functional differences between: (i) mandatory sentencing guidelines that are promulgated by legislatures or agencies and (ii) judicial precedents on substantive reasonableness review.
Consider the once-mandatory federal sentencing guidelines that prevailed before Booker. Under that system, Congress both enacted criminal statutes and exerted control over the U.S. Sentencing Commission that promulgated the guidelines. Because it had control over both statutory sentencing ranges and guidelines ranges, Congress could exert mandatory control over criminal punishments—at juries’ expense—by raising statutory maximums and then instructing the Commission to require additional judicial fact-finding pursuant to mandatory sentencing rules. Clearly, Booker hasn’t prevented Congress from engaging in this behavior or from otherwise shifting fact-finding responsibilities away from juries and toward judges. Indeed, the Booker remedy—finding the guidelines advisory—was widely criticized for paradoxically empowering judges, not the juries actually mentioned in the Sixth Amendment. These critics had a point: How can Booker promote the right to jury trial, when it had no direct effect on jury fact-finding?
One possible answer is that Booker indirectly promoted jury fact-finding by reshaping long-term legislative incentives. After Booker, Congress can no longer increase its own control over sentencing outcomes by shifting fact-finding responsibility toward judges operating under mandatory guidelines. The mandatory guidelines, after all, are now unconstitutional. Instead, Congress can shift fact-finding away from juries and toward the sentencing phase only by empowering judges operating without mandatory guidelines. Put another way, Booker holds that the only way for Congress to establish mandatory sentencing rules is to shift fact-finding responsibility toward the trial, where juries find facts. Congress’s desire to control mandatory sentencing rules thus reinforces, and no longer undermines, its willingness to promote jury fact-finding. Booker might therefore be compared with other constitutional doctrines that (as Matthew Stephenson put it) “raise the costs to government decision-makers of enacting constitutionally problematic policies, rather than attempting to designate certain government actions, or categories of government actions, as permissible or impermissible.”
This functional argument suggests that the Apprendi rule most forcefully applies to sentencing rules created by legislatures and agencies, and not to sentencing rules that are crafted by independent federal judges. The temptation to circumvent the jury arises when the same entity (or coordinated pair of entities) has control over both statutory sentencing ranges and mandatory sentencing rules. Congress had both types of control before Booker. But Congress can’t count on federal judges to impose the mandatory sentencing rules that Congress itself desires. Unlike the Sentencing Commission, the federal courts are independent of the political branches. And while Booker reasonableness review represents a gloss on a federal statute, the statutory gloss facilitates judicial discretion rather than curbing it. So if Congress legislates higher statutory sentencing ranges and writes up new guidelines, the federal courts are free to accept or reject those advisory results. Unless federal courts of appeals predictably fashion reasonableness rules in the manner that Congress desires, the legislature’s desire for mandatory sentencing rules would cut in favor of jury fact-finding, even if substantive reasonableness review flourished.
Admittedly, this last point places a lot of weight on federal judges’ willingness to deviate from the advisory guidelines in ways that will frustrate Congress. And while evidence on post-Booker sentencing is mixed and complex, it’s fair to say that the guidelines, while frequently set aside, are still taken seriously. To the extent that the guidelines are advisory-in-name-but-followed-in-fact, Congress still has some reason to circumvent the jury by shifting fact-finding to the sentencing phase. But the more direct solution to that problem would be to make clearer that sentencing courts can and often should deviate from the guidelines. What the independent judiciary does, after all, is within its own control. This is why Scalia’s Rita concurrence was wrong to worry that “this Court could prescribe that the only reasonable sentences are those consistent with the same mandatory Guidelines that Booker invalidated.” Instead of blatantly deferring to Congress in that way, the Court can easily move in the opposite direction. For example, it could partially overrule Rita and prohibit the circuit courts from presuming that in-guideline sentences are reasonable. Given this and other potential solutions, it seems an overreaction to cure any residual form of legislative influence by taking Justice Scalia’s advice and declaring each district court judge the final word on the substantive reasonableness of sentencing–a result that raises serious uniformity and fairness concerns.
Of course, the Supreme Court hasn’t quite articulated the functional argument outlined above, which is subject to a lot of questions and potential objections. Of particular note, any attempt to view Booker as directed specifically toward legislative incentives would have to address the history of the Sixth Amendment and how it bears on this question, particularly because the Court’s recent jurisprudence in this area has been so extensively grounded in originalism. But that will have to be a topic for another day.