The Return of Federal Judicial Discretion in Criminal Sentencing (Symposium Entitled the Shifting Powers in the Federal Courts)

Federal judicial discretion in criminal sentencing has come full circle over the last 200 years. The English practice in colonial times for felony offenses consisted of a determined sentence for every crime, depending upon a finding beyond a reasonable doubt by a jury of all of the "essential ingredients" of that crime. America, on the other hand, switched to indeterminate sentencing during colonial times, giving state and federal judges the authority to impose any sentence they chose within the very wide penalty range established by the legislature. Each judge was master of her courtroom upon receiving a conviction by jury verdict or guilty plea. She made all of the moral, philosophical, medical, penological, and policy choices surrounding what particular sentence to impose upon a particular offender, and her decision was virtually unreviewable by any higher court. Judges ceded some of this enormous discretion by the early 1960s, as every state and the federal government permitted a parole board or probation agency to release a defendant after serving the minimum sentence imposed. Judges nonetheless, in the words of Judge Marvin Frankel, possessed discretion that was "terrifying and intolerable for a society that professes devotion to the rule of law." This discretion was abruptly and almost completely terminated shortly after Congress enacted the Sentencing Reform Act of 1984, which transferred power over federal criminal sentencing from district judges to the newly created United States Sentencing Commission. Needless to say, many federal trial court judges were not overly fond of this new arrangement. After many false starts, a successful attack was finally launched last term in United States v. Booker and United States v. Fanfan. In Part I of this article, I will briefly recount the history of American criminal sentencing and describe the line of Sixth Amendment cases leading to Booker. I will offer some educated speculation as to why Justice Ginsburg inexplicably joined both competing majority opinions in Booker, and what the five Justices writing for the remedial majority hoped to gain by their tortured interpretation of the Sentencing Reform Act. I suggest that this five justice block hoped to revive judicial discretion in federal sentencing in the wake of what they considered the rude, disruptive, and unwise coup over criminal sentencing that Congress accomplished via the Sentencing Reform Act of 1984 and the Feeney Amendment of 2002. In Part II, I will predict, based upon sentences imposed post-Booker and the structure of the U.S. Code and the Federal Rules of Criminal Procedure, the actual effect that Booker will have on federal sentencing. We will see a sharp, perhaps temporary surge of judicial discretion at the trial level in sentencing, used primarily to decrease the length of sentences, before federal prosecutors regain some (but not all) of their dominance. While there will thus be a shift in the balance of power from the prosecutor to the judiciary (at least until Congress supplants Booker by new legislation), the jury will continue to play a relatively minor role. In Part III, I will describe what I anticipate will be Booker's effect on plea bargaining. This section is based in large part upon the admittedly unscientific method of questioning my contacts in various U.S. Attorney's and Federal Public Defender's Offices and at federal judicial chambers throughout the country. Though the substantive terms of bargains will shift in favor of defendants, the overall percentage of guilty pleas will ultimately remain quite high, and a sufficient number of trump cards will remain in the prosecutor's deck (coupled with institutional pressures from Federal Public Defender's Offices and the federal judiciary) to convince defendants to accept pleas in the vast majority of cases. The shift of fact-finding responsibility that does occur will again flow in most cases from the prosecutor to the judge, not to the jury. I conclude with a few thoughts about the likely duration of this new federal sentencing scheme, and what measures would actually be required to truly either expand the jury's role in criminal trials, or to more substantially shift sentencing discretion back to the judicial branch.