January 12, 2005

Supreme Court Rules Judges Are Not Bound by Sentencing Rules

By LINDA GREENHOUSE

WASHINGTON, Jan. 12 - The Supreme Court transformed federal criminal sentencing today 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. The guidelines, intended to make sentences more uniform, should be treated as merely advisory in order to cure a constitutional deficiency in the system, the court held in an unusual two-part decision produced by two coalitions of justices.

In the first part, five justices declared that the current guidelines system violated defendants' rights to trial by jury by giving judges the power to make factual findings that increased sentences beyond the maximum that the jury's findings alone would support.  That portion of the opinion had been widely anticipated, growing directly out of a similar conclusion the same five justices - John Paul Stevens, Antonin Scalia, David H. Souter, Clarence Thomas, and Ruth Bader Ginsburg - reached last June in invalidating the sentencing guidelines system in the state of Washington.

The real question hanging over the case, which the court granted on an expedited basis over the summer and heard in October on the opening day of its new term, was how the justices would solve the problem. So it was the second part of the decision - the remedy - that was the surprise and that, going forward, will shape the continuing debate over sentencing policy. With Justice Ginsburg joining the four justices who dissented from the first part - Stephen G. Breyer, Sandra Day O'Connor, Anthony M. Kennedy, and Chief Justice William H. Rehnquist - a separate coalition said the problem coould be fixed if the guidelines were discretionary rather than mandatory.

Judges "must consult" the guidelines and "take them into account," Justice Breyer said for the majority in this portion of the decision. But at the end of the day the guidelines will be advisory only, with sentences to be reviewed on appeal for "reasonableness." Justice Breyer's solution to the problem was not intuitively obvious - in fact, no party in the case had suggested it - and at its heart lay a paradox. In a series of intensely disputed rulings beginning with Apprendi v. New Jersey in 2000, the court has held that under the Sixth Amendment right to trial by jury, judges cannot impose sentences beyond the "prescribed statutory maximum" unless the facts supporting such an increase were found by a jury beyond a reasonable doubt.

The constitutional cloud over federal criminal sentencing therefore derived from the mandatory nature of the guidelines, which instruct judges to consider various facts, like the defendant's leadership role in a criminal enterprise, and to increase sentences accordingly beyond the usual range. But all nine justices agreed that the defendant's Sixth Amendment right is not implicated by a system in which judges simply use their discretion, advised by guidelines but not bound by them. Hence the paradox: the Sixth Amendment's protection vanishes as judges gain more power.

Questions:

1. Do you agree with the US Supreme Court decision?

2. Would you introduce sentencing guidelines in Canada as in the USA? Should sentencing guidelines be mandatory or advisory?

3. What would you change about the Canadian sentencing system?

4. What circumstances should the courts consider and what measures could it take with regard to Aboriginal offenders?

5. Would you include mandatory minimum sentences?