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Chicago Tribune; January 16, 2024


The federal system for sentencing criminals has long been complicated, and it is only getting more so.  After months in which the sentencing guidelines hung in limbo, the Supreme Court has reached a decision relaxing their effect.  The outcome strikes a reasonable balance between judicial discretion and uniform treatment of convicted criminals.

But it leaves no shortage of uncertainty.  Some of the uncertainty is about how judges will use the new discretion that they have been given.  Some of it is about how Congress will respond to seeing its creation--the sentencing guidelines--partly dismantled.  And some is the result of the striking incoherence of the court's two-part decision resolving the issue.

The subject emerged last summer, when the court struck down the state of Washington's sentencing system.  Like the federal guidelines, the Washington system provided a specific range of sentences for each crime.  But it also required the presiding judge to tack on additional years to the usual maximum, upon finding that certain aggravating circumstances were present.

A man who pleaded guilty to second-degree kidnapping, which carries a maximum sentence of 53 months, ended up with a 90-month sentence because a judge found he had acted with "deliberate cruelty." The defendant challenged the additional term, claiming he had effectively been convicted of an additional crime without being granted his constitutional right to a jury trial.  The Supreme Court agreed, striking down the Washington system.  It concluded that judges may not be compelled to punish acts that defendants have not admitted and have not been proven to a jury.  The decision cast a cloud over the federal guidelines, and some lower courts immediately concluded they were unconstitutional.

In Wednesday's decision, the Supreme Court agreed that the federal system suffers from the same basic defect it found in the Washington guidelines.  But instead of simply requiring juries to find guilt on any actions that can boost a sentence above the standard limit, the court said the problem can be fixed by instructing judges to treat the enhancements as advisory rather than mandatory.

Here is the central paradox of the verdict: If a judge is required to increase a sentence to reflect certain factors, then the defendant has been deprived of his right to a jury trial.  But if a judge is merely allowed to increase a sentence to reflect certain factors, the defendant has not been deprived of that right.

That outcome, the product of a badly divided court, doesn't make great sense as a matter of constitutional reasoning.  But the practical consequence has much to recommend it.

It creates a presumption that judges will continue to adhere to the guidelines unless there is good reason not to.  But it doesn't lock them into inflicting punishments even when they seem out of proportion in a particular case.  Prosecutors will be free to appeal sentences they regard as too light, just as defendants can contest those that strike them as harsh.

The overall result could preserve much of the original purpose of the guidelines, which was to assure that comparable defendants get comparable sentences whether they commit their crimes in Brooklyn or Birmingham.

Some conservatives worry that judges will err too often on the side of leniency.  But that remains to be demonstrated.

Prosecutors, in any case, always retain the option of bringing additional charges to make sure the defendant is appropriately punished for everything he did.

In the event that the courts revert to the big disparities that once marred federal sentencing, Congress will most likely want to act to limit judicial discretion by boosting penalties.  But the wisest course is to see if problems arise before rushing to correct them.

“In too many cases, mandatory minimum sentences are unwise and unjust.”
- U.S. Supreme Court Justice Anthony Kennedy

If you agree…

Write Congress to tell them that mandatory minimums are unjust.