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Friday, January 21, 2005

Panel 2: Considerations at Sentencing -- What Factors Are Relevant and Who Should Decide?

Moderator Judge John S. Martin, Jr. opens with a quote from a Southern judge who said, "If you go to trial, your client will receive justice. If you plead guilty, he will receive mercy." He introduces the panelists: Paul H. Robinson, professor at Penn Law; Kyron J. Huigens, Professor at Cardozo Law; Kevin R. Reitz, Professor at University of Colorado Law; and Barbara Tombs, the Executive Director of the Minnesota Sentencing Guidelines Commission (with past experience in Kansas and Pennsylvania as well).

Sentencing Decisions: Matching the Decisionmaker to the Decision Nature
Paul H. Robinson
If we could construct any kind of sentencing system, what would it look like? There’s obviously some disagreement on who should decide: some states have broad judicial discretion. Mandatory minimums signal that the legislatures are taking this decision making power for themselves. There also are parole boards. Each does something well, but other things less well. The question should be, "Who should decide what?" the sentencing decision is in fact a series of discrete decisions, and for each of those discrete decisions, some of the decision makers will be better than others.

6 decisions:
1) policymaking,
2) rule articulations: translating general policy into articulable rules, what factors should determine punishment, etc.;
3) fact finding: recreating past events;
4) judgment making: expressing normative judgments (was the person deliberately cruel?)
5) determining punishment amount: applying the case findings determined in decisions 3 and 4 to the articulated rules determined in decision 2
6) determining punishment method: translating the decision 5 conclusions concerning punishment amount into a specific sentence (distinct from 5; it has options of jail, prison, probation, community service, etc.)

On the aspect of policy making, juries obviously don’t have the expertise or resources; also with the problem of disparity, you can’t have every jury coming up with its own policy for each case. Judges have more competence, but suffer from the same disparity and poverty of resources problems. The parole board has the problem that it only can affect prison sentence length. The legislature and sentencing commission seem like better actors; the former is the primary decision maker, the latter the delegated authority.

On rule articulation, parole board, jury and judge are disqualified for reasons similar to those above. Here the sentencing commission should be the primary decision-maker, with the legislature given veto authority to protect democratic policy choices.

On factfinding, legislature and sentencing commissions aren’t practical, and the parole board is less so than the judge or jury. The fact finding process is expensive. The primary decision maker is the jury, with a slight advantage over the judge because perceived as more fair and less biased, but the judge is a feasible alternative to jury.

Judgment making: not practical for legislature, not much better for sentencing commission or parole board; the jury again is the primary decision maker for its perceived advantage over the judge in making normative judgments.

Determining punishment: not practical for legislatures; supervision authority for sentencing commission; parole board less practical than sentencing commission; the jury lacks training; the judge is the primary decision maker because she can implement sentencing guideline rules.

Determining punishment method: not practical for legislature; support role for sentencing commission; parole board again less practical; jury again lacks training and competency; judge is primary decision maker, with information and support from sentencing commission.

1. Mandatory minimum sentences
2. Federal sentencing reform act of 1984
3. Feeney amendment to the federal PROTECT Act: as proposed, as enacted
4. Blakely v. Washington
5. Jury Sentencing
6. State sentencing guideline systems

If you think about broad judicial sentencing, judges are good at some things but not everything. In a system with uncontrolled judicial decision making does not have the best decisions for the first four aspects. Jury sentencing suffers a similar problem. Thinks that Sentencing Reform Act of 1994 gets it right, but the commission gets it wrong (Robinson was on the commission but dissented from its conclusion).

Booker puts forward the remedy that authority should be shifted away from sentencing commission or legislature to the judge, which Robinson finds bizarre; if the constitutional problem is that the jury needs to make the decision, as per the 6th amendment, why give the authority to judges?

Huigens: Says he always has been in the minority on these issues; defended Apprendi when other academics and practitioners worried about the problems created for the criminal defense system. The assumption is that more legality, more rules, is always a good thing at all stages of the process; the response is “how do we make guidelines work with juries involved?” His own reaction has been “Why not just return to discretionary sentencing?” No one else seemed to think it was a good idea until Justice Breyer, and now we are returned to discretionary sentencing.

But why? It’s really not clear how turning it into a discretionary sentencing system solves the 6th amendment problem. The Court never has overruled Williams v. New York (1947), which says that judicial fact finding is acceptable in a discretionary system. This comes up in the Apprendi dissents, because it seems inconsistent with the majority opinion. To put it another way, why would you have more constitutional regulation where the legislature has imposed additional rules; if you don’t impose a legal structure, then there is no constitutional regulation. This is counter-intuitive.
If a judge can’t find the element of the offense, unless the defendant waives his right to a jury trial, then the judge can’t find the factual matter of the sentencing either.

Huigens says he has a preference for discretionary sentencing; legality isn’t necessarily a good thing all the way through. More rule bound decision making isn’t necessarily a good thing. There is a different and additional value at work in the criminal justice system, what he calls “fine-grained-ness,” a close relationship or high correlation between moral and legal judgments. Lacking this correlation, the system will lose legitimacy.

In the clash of legality and fine-grained-ness, we try to balance these competing values. This balance isn’t the same at every stage of the process, or even from one offense to another. The balance we draw in offense definition and adjudication is not the same one we draw at sentencing; historically, we prefer legality in the former and fine-grained-ness in the latter.

This balancing between legality and fine-grained-ness has a mechanics. One piece is the “rules versus standards” debate. We want a high degree of legality for familiar reasons: notice, etc. We avoid the use of standards (especially the use of negligence concepts) in defining offenses; in sentencing, standards predominate.

If you look in the history of death sentencing, you see how this comes out. Fuhrman and Gregg command that we avoid arbitrariness, by taking a more rule-like approach, asking for more legal structure. But if you look at Woodson and Locket, there is an emphasis on individualized decision making. In this tension, the latter body of cases seems to have won out; a win of fine-grained-ness over legality. After conviction, considerations of mitigating factors suddenly become important, as they were not permitted to be during the trial.

The new sentencing conundrum: policy and constitutional law at cross-purposes
Kevin R. Reitz

Cites the increase in the prison population and our use of sanctions such as community penalties (Megan’s law, etc.) and execution. The states that have done the best job in sentencing reform have instituted presumptive guidelines, though some like DE and VA have succeeded with voluntary guidelines.

A few months after Blakely, another scholar noted that Blakely is harshest on the best state sentencing guidelines, and may encourage good states to go bad, and bad states to go bad.
The new 6th Amendment right at sentencing: constitutional Swiss cheese. The Blakely exceptions:
- Williams; reinforced in Booker II
- Harris; McMillan
- Patterson
- Almendarez-Torres

System Type Blakely Problems? Past prison growth record
Presumptive gdlns Clear problems slow-growth
Voluntary gdlns none mixed record
Presumptive stat. sent. Clear problems mixed record
Indeterminate sent. None high growth record
Mandatory gdlns Clear problems high growth record
Mandatory min. gdlns none high growth tendencies
Mandatory min. stat. None high growth tendencies

Policy Options
- Approach (Blakelyization) – the legislature must figure out a way to provide jury fact finding procedures
- Avoidance (find a Blakely Exception) change the whole system so Blakely isn’t an issue

Avoidance strategies
- Indeterminacy (Williams)
- Mandatory min sentencing rules (Harris)
- Top down presumption (Patterson)

Reitz says that his biggest concern is that Blakely and 6th amendment complications will stop reforms from happening in the states. For example, PA before Blakely planned to cut back the authority of the parole board, but post-Blakely the parole board is the sentencing commission’s best friend, because having the parole board set sentences seems to be an exception that exempts regulation from 6th amendment problems.

Barbara Tombs
States deal with sentencing in a different parameter than the federal government does. State systems have a clear focus that the federal guidelines lack; are they for retribution, rehabilitation, etc. In Minnesota, it’s clearly for retribution, and it keeps MN focused on what the guidelines can do. Also, who is going to your prison system? Who are you supposed to be incarcerating, and why? Particularly important with drug offenders.

Commissions have an advantage in dealing with issues such as this because of the structure of the commissions; they talk to all the parties (prosecutors, judges, et al.). A lot of issues can be addressed through those commissions, though the commission can be dysfunctional, and if it is not working properly and information is not being shared, there will be problems with the sentencing structure.

The political environment of the state is critical. Blakely and Booker will hurt the younger commissions more than the older ones. When Apprendi came down, it didn’t affect many states; there wasn’t much discussion about change and the fix was easy. When Blakely came down, changing the statutory max, there was much more upheaval. Most states are at the point where they have sentencing enhancement structures, and thus are affected by Blakely, and they need to figure out how to fix it. In Minnesota, they are modifying the guidelines. Going fully discretionary, if you look at legal and moral issues, there’s still the problem of disparity in a diverse state. Moral values change very much from Minneapolis to St. Cloud. Tombs cited Minnesota’s upward departures for murder and sexual assault, and downward departures for drug offenders.

The whole issue in Booker was the need for jury sentencing, but after the first couple pages you never hear jury sentencing again; what was pre-eminent in Blakely gets lost in Booker.

Moderator Judge Martin says that he thinks two things are wrong with the sentencing system. We have valued ending disparity too much; we should instead focus on what system will lead us to the just result in the greatest number of cases. Second, those who worry that Booker will lead us to terribly disparity, forget that it provides for appellate review.


One person asks about parole and post-release supervision. Huigens clarifies that indeterminate sentencing involves an archipelago of parole and so forth, while discretionary sentencing gives the authority to a judge. One of the key problems with the parole system was a lack of legality and the enormous discretion, poorly handled, by the parole boards.

Another says there are two complaints against Swiss cheese: it’s the wrong kind of cheese, or that the holes are bad. What would happen if the Supreme Court of the United States started looking at those holes, those Blakely exceptions that exist in the caselaw?
Reitz: If you has a Supreme Court that was all on the same page of being excited about the 6th Amendment, you would want the Court to develop a coherent jurisprudence, so the states wouldn’t be handicapped in developing their systems.

Lynch asked, can we afford a system that makes nuanced decisions, trying each fact before the juries?
Reitz: Wishes for a pre-Blakely world, because the Court has imposed procedural costs, ones that unfairly affect the better systems while leaving worse ones untouched. Already we are seeing Blakelyized jury returns, and the reports are that the costs are not that high. The systems are moving forward.

Lynch: Is there overlap between the best sentencing systems and the best penal codes?
Robinson says that there is some but it is not thorough, calling Ohio “a mess” for its penal code.


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