On January 12, 2005, the U.S. Supreme Court ruled that the Sixth Amendment right to a trial by jury requires that federal sentencing guidelines be advisory, rather than mandatory. In doing so, the Court struck down a provision in law that made the federal sentencing guidelines mandatory as well as a provision that permitted appellate review of departures from the guidelines. In essence, the Court's ruling gives federal judges discretion in sentencing offenders by not requiring them to adhere to the guidelines; rather, the guidelines can be used by judges on an advisory basis. As a result of the ruling, judges now have discretion in sentencing defendants unless the offense carries a mandatory sentence (as specified in law). While some may view the ruling as an opportunity for federal judges to take into consideration the circumstances unique to each individual offender, thus handing down a sentence that better fits the offender, others fear that federal sentencing will give way to unwarranted disparity and inconsistencies across jurisdictions. The Court has begun to clarify some of the lingering questions regarding the amount of weight to be given to the guidelines and what standards appellate courts should use in assessing the "reasonableness" of a particular sentence. In light of these rulings, the issue for Congress is whether to amend current law to require federal judges to follow guided sentences (hence, codify specified sentencing ranges that are in the guidelines), or to continue the status quo and permit federal judges to use their discretion in sentencing, under certain circumstances. The issue that brought the matter before the Court was a judge's obligation to move from one guideline maximum to a higher one based on the judge's factual determination. The Court examined "[w]hether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines (USSG) based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant." This report provides background information on the federal sentencing guidelines. In doing so, the report provides a summary of U.S. penal policy, paying particular attention to such policy at the federal level. The report then discusses legislation enacted in 1984 that created the pre- Booker federal sentencing structure. A legal analysis of the Court's Sixth Amendment jurisprudence leading up to the Booker decision as well as subsequent, related Court decisions follow. Next, the different types of sentencing guidelines, including the one that was approved by Congress that was the basis for the recent U.S. Supreme Court decision, are discussed. The report then provides an analysis of departures from the guidelines under the federal system. The report concludes with an analysis of possible policy options Congress may wish to consider if it chooses to address this issue. Historically, the way in which convicted offenders are sentenced in the United States falls under one of two penal policies—indeterminate and determinate sentences. Indeterminate sentencing practices were predominant for several decades, leading up to the major reform efforts undertaken by many states and the federal government in the mid- to late 1970s and early 1980s (see discussion in the next section). Today, however, some states and the federal government have variations of determinate sentencing. Some states, however, continue to operate under indeterminate sentencing. Early penal policy in the United States served the goals of retribution and punishment. Beginning in 1870, however, rehabilitation became the focus of criminal sentencing, which led to the adoption of an indeterminate sentencing system in the federal penal system. At the time, indeterminate sentencing was seen as the preferred mechanism to rehabilitate offenders, which was the stated goal of punishment. Under the federal indeterminate sentencing scheme, Congress established the penalty range within which the judge imposed a sentence. Typically, after one-third of the sentence was served, a parole board would determine if the offender had been rehabilitated and could be released from prison and placed on parole. Federal sentencing policy was reexamined by Congress in the early 1970s, and in 1973 a proposal to revise the entire Federal Criminal Code was introduced, which ultimately included a reform of the federal sentencing system. It wasn't until 1984, however, that Congress passed a sentencing reform measure, which abolished indeterminate sentencing at the federal level and created a determinate sentencing structure through the federal sentencing guidelines (see discussion below). As stated previously, federal sentencing was indeterminate throughout much of the 20 th century. Defendants sentenced under an indeterminate sentencing scheme do not know the exact length of time they will serve. At the federal level, primary control over sentencing rested with the district court. With few exceptions, Congress provided only maximum terms of incarceration for federal crimes, while judges set the minimum sentence in individual cases, and the U.S. Parole Board decided when the offender was released. At the state level, a range of sentences for a particular crime is established according to statute (e.g., 12 to 20 years) and a judge would sentence the defendant to that range. The precise amount of time an offender serves, however, is left to prison officials, usually a parole board. Sentences were indeterminate because the actual length of time that would be served could not be determined at the time of sentencing. Indeterminate sentencing, once viewed as a major reform designed to individualize the treatment of offenders and facilitate rehabilitation, came under attack because it was perceived as promoting unwarranted disparity in sentences. Critics contended that the unlimited judicial discretion, without documented justification and review by an appellate court, produced sentencing disparities. The perceived failure of the indeterminate system to "cure" the criminal (usually measured by recidivism rates), coupled with a concern about rising crime rates throughout the nation in the mid-1970s, resulted in experimentation with sentencing systems by several states and the creation of sentencing guidelines at the federal level. Despite these developments, however, indeterminate sentencing remains "the predominate sentencing structure for most states ... although these laws are becoming increasingly determinate in structure ... by greater use of mandatory minimums, truth in sentencing provisions, and reduction in the amount of good time credits an inmate can earn while incarcerated." Prior to many states and the federal governments adopting sentencing guidelines and other forms of "structured" sentencing policies, the only alternative to indeterminate sentencing was determinate or "fixed" sentencing. As sentencing policy evolved, so did the scope of determinate sentencing. For example, beginning in the 1970s and continuing into the 1990s, Congress and many states passed legislation that revised sentencing laws and required, in many cases, the mandatory imprisonment of offenders for committing certain types of crimes. In many instances, such legislation required a mandatory minimum term of imprisonment. In addition to mandatory minimum laws, Congress and several states passed legislation that created sentencing commissions and charged them with establishing sentencing guidelines. Congress and some states also passed "three-strikes" provisions, which usually required a life sentence after the third strike (i.e., conviction), and truth-in-sentencing measures, which required an offender to serve a large percentage of his or her sentence. Many of the current sentencing alternatives to indeterminate sentencing are variations of determinate sentencing. There are usually explicit standards specifying the amount of punishment and a set release date that is not subject to review by an administrative body (i.e., a parole board). Under determinate sentencing, however, time served can be reduced by good time or earned time. Both indeterminate and determinate sentencing practices have been criticized by many who believe that such practices lead to abuse by criminal justice officials and unwarranted disparities in sentences. Critics of both penal policies contend that such sentences give way to a nonuniform application of sentences across jurisdictions. With respect to determinate sentences, for example, judges sentence offenders to a fixed period based on statute, which some contend does not take into consideration individual offender characteristics. Moreover, they argue that determinate sentences essentially move discretion away from the judge to the charging attorney. Indeterminate sentencing practices, on the other hand, lead to disparities due to the potential for "two defendants committing the same crime under similar circumstances receiving very different sentences depending on a particular judge's sentencing idiosyncrasies." In 1984, Congress passed legislation that led to the creation of federal sentencing guidelines. The Sentencing Reform Act of 1984 (Chapter II of the Comprehensive Crime Control Act of 1984; P.L. 98-473 ), in essence, eliminated indeterminate sentencing at the federal level. The act created the United States Sentencing Commission, an independent body within the judicial branch of the federal government and charged it with promulgating guidelines for federal sentencing. The purpose of the Commission was to examine unwarranted disparity in federal sentencing policy, among other things. In establishing sentencing guidelines for federal judges, the Commission took into consideration factors such as (1) the nature and degree of harm caused by the offense; (2) the offender's prior record; (3) public views of the gravity of the offense; (4) the deterrent effect of a particular sentence; and (5) aggravating or mitigating circumstances. In addition to these factors, the Commission also considered characteristics of the offender, such as age, education, vocational skills, and mental or emotional state, among other things. Prior to the Booker decision (discussed below), the guidelines were binding. In summary, the Sentencing Reform Act reformed the federal sentencing system in the following ways: It abandoned one of the traditional goals of punishment, rehabilitation , and asserted the following goals: retribution, education, deterrence and incapacitation . It consolidated the power that had been exercised by judges and the U.S. Parole Board to decide the type of punishment and its length by abolishing paroles and creating the U.S. Sentencing Commission and charging it with establishing sentencing guidelines. It made all federal sentences determinate. It authorized appellate review of sentences in which the judge departed from the guidelines and review of other sentences under certain circumstances.