The federal sentencing guidelines are dead. Long live the guidelines.

On Jan. 12, 2005, the U.S. Supreme Court ruled that the strict and sometimes unforgiving sentencing guidelines that have tied the hands of federal judges for nearly 20 years would no longer bind them.

The ruling came in United States v. Booker and United States v. Fanfan, consolidated cases which became known almost immediately in the criminal justice world as simply “Booker,” much the way lawyers use one-word references for other cases of landmark importance, like Miranda or Gideon.

But, while the Court ruled 5-4 that judges are no longer obligated to follow the guidelines’ punishment ranges when imposing sentences, it did not throw out the guidelines completely and, in a second part of its decision–and by a different 5-4 split–appears to have preserved their use, saying judges must continue to consult them.

The twin rulings have answered some questions with certainty but have raised a host of new ones, leaving practitioners and prisoners wondering where they stand as the aftershocks subside and the lower courts begin to feel their way through the new landscape.

“The clearest winners in this, at the moment, are the federal judges,” said Professor William Stuntz. “They’ve been complaining about the inflexibility of the guidelines for the better part of 20 years, and suddenly they’ve been given back much of the discretion that the guidelines took away from them.”

Defendants, too, are likely to benefit from Booker, at least in the short run, because judges are no longer bound by some of the tougher penalties that the guidelines required. “When judges complained about the mandatory rules, it was usually because they thought the penalties were too harsh, especially in drug cases,” said Stuntz. “But this could turn out to be a case of ‘Be careful what you wish for,'” he added, “because if sentences now start looking lenient, Congress could decide to jump in with even tougher mandatory minimum penalties.”

Indeed, one of the new questions after Booker is whether Congress, fearful that courts will now be too lenient, will try to impose a “Booker fix” in the form of even tougher penalties or other legislation. “That’s a huge question at the moment,” said Professor Philip Heymann ’60. Heymann recently joined ranks with former Attorney General Edwin Meese and Frank O. Bowman ’79, a professor at Indiana University School of Law, asking the House of Representatives not to pursue a quick fix in response to Booker.

Another looming question is whether or to what extent Booker will be given retroactive effect–whether droves of defendants who were sentenced under the guidelines will now ask to be resentenced without the guidelines playing a mandatory role in their punishments.

The Court did not specifically address the question of retroactivity in Booker, but suggested that the reach of the decisions is limited to cases awaiting sentencing and some cases where appeals were pending. A few lower courts have already decided that Booker does not have retroactive effect. Nevertheless, says Stuntz, until the Court unequivocally slams the door on Booker-based attempts to reopen old punishment decisions, there will probably be hundreds of motions or petitions to reopen sentencings.

But perhaps the most important question raised by Booker is: What is the role of sentencing guidelines, now that they are no longer mandatory but must still be consulted? “What will an advisory guideline system look like?” Stuntz asked. “How much should judges adhere to them?”

Although Booker made clear that the guidelines must be consulted and taken into account, it did not expressly address the question of how much weight they should be accorded by sentencing courts. There are already several district court decisions with varying opinions regarding the precise weight that should be given to the guidelines. Some have held that the guidelines should be given “heavy weight” and should be deviated from only in unusual cases for clearly identified and persuasive reasons, while others have said the guidelines are just one of a number of sentencing factors to be considered.

The Road to Booker

While no one had predicted the two-part decision, most Court-watchers were at least braced for the first part, expecting the justices to rule that the guidelines were constitutionally flawed. Booker and Fanfan were the latest in a series of cases in which the Court had been moving inexorably in that direction. They brought to a head tensions that have existed in the criminal justice system since the founding of the republic. “Let mercy be the character of the lawgiver,” Thomas Jefferson wrote in 1776, “but let the judge be a mere machine.”

Jefferson’s hopes notwithstanding, until the late 1980s, judges had broad discretion to choose sentences within wide ranges established by Congress or state legislatures. They were also free to base their decisions on a variety of facts about the defendant’s criminal history and other matters that were never presented to the jury in cases that went to trial. And they were not required to find facts “beyond a reasonable doubt.”

That discretion produced glaring disparities in sentences. Similar defendants convicted of similar crimes were often given widely varying punishments by different judges. Sentencing reform caught on, and by the end of the 1980s, Congress and many states had enacted guidelines. A leading proponent of the federal guidelines was Stephen Breyer ’64, who helped draft them before he became an associate justice of the Supreme Court.

The federal guidelines established ranges of mandatory penalties for the gamut of crimes, and included adjustments upward or downward based on many factors, including the defendant’s criminal history and characteristics of the offense. Many of the facts relevant to punishment were determined by judges, not juries, often by a measure of proof more relaxed than the “beyond a reasonable doubt” standard that governs the establishment of guilt.

There were very few grounds for judges to depart from those ranges. And, as Congress enacted progressively tougher penalties for drug crimes and other offenses, judges increasingly complained that they were being forced to impose punishments too harsh for the circumstances of particular cases.

Defense attorneys brought numerous legal challenges to the guidelines in the 1990s but were unsuccessful in having them thrown out.

But in 2000, in the case of Apprendi v. New Jersey, defense lawyers hit pay dirt when they made a Sixth Amendment argument based on the right to have facts found by juries, not judges. The Sixth Amendment was the sleeping giant of sentencing law, and they shook it awake. When they did, they found five receptive members of the Court, including Justices Antonin Scalia ’60 and Clarence Thomas.

In Apprendi, the Court ruled 5-4 that any fact, except for a defendant’s prior convictions, that a judge relies upon as the basis for increasing the defendant’s sentence above the statutory maximum (where such an increase is allowed based on the finding of an aggravating factor) must be submitted to a jury. “At that point, the handwriting was on the wall,” said Stuntz, and the broader implications for judicial fact-finding under mandatory guidelines were hard to ignore.

The Blakely Thunderbolt

Still, when the Court agreed in 2003 to hear a state guidelines case out of Washington, many thought it would use that case, Blakely v. Washington, to rule, as had nearly all lower courts, that Apprendi had no applicability to judicial fact-finding affecting sentences within otherwise applicable statutory ranges. “A lot of people hoped the Apprendi principle was limited to situations where a judge tries to impose an exceptional sentence, above the normal statutory maximum, based on some additional aggravating fact,” said Douglas Berman ’93, a professor at Ohio State University’s Moritz College of Law and one of the nation’s foremost experts on sentencing law. “They thought the Court would use Blakely to make it clear that judges could still engage in fact-finding that would only affect sentences below the normal statutory maximum.”

But in June of last year, the Court ruled 5-4 in Blakely that the Sixth Amendment required that any fact relied upon as the basis for a sentence harsher than the one triggered by the facts found by the jury or admitted by the defendant–even a sentence below the statutory maximum–must be found by a jury, not a judge, unless the defendant waived the right to a jury. The Court held certain components of Washington’s sentencing provisions unconstitutional because they allowed a judge, acting without a jury and using a lower standard of proof than “beyond a reasonable doubt,” to sentence above a legislated standard range based upon the judge’s own finding of aggravating facts.

“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant … not the maximum sentence a judge may impose after finding additional facts,” wrote Scalia in his opinion for the majority. “When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment.'”

The Blakely decision suggested that judicial fact-finding cannot form any part of the basis for the imposition of a criminal sentence within a mandatory sentencing guidelines system, absent the defendant’s waiver of a jury.

“Blakely made clear that if you want a system of mandatory guidelines where sentences are bumped upwards based on fact-finding–even when they are still below the statutory maximum–then you’re going to have to let the jury decide the facts relevant to sentencing, and by a ‘beyond a reasonable doubt’ standard,” Berman said. “It was a thunderbolt.”

Even though the Blakely holding was limited to Washington state’s guidelines, Scalia’s opinion left little doubt that the federal guidelines would not survive Blakely-based scrutiny. With approximately 87,000 federal criminal prosecutions each year, the potential impact was staggering.

The federal guidelines required judges to elevate sentences from a base, or “presumptive,” level whenever any of a wide range of enumerated aggravating factors was proven by a “preponderance of the evidence.” Most of those factors were specified only in the guidelines, and not in statutes. If Blakely implied that federal defendants would now have the right to jury trial of those factors, the federal court calendars could become unmanageable.

“Blakely cast so much doubt on the continuing constitutionality of judicial fact-finding under the federal guidelines that just about everybody begged the Court to either make it official or find a way to take a step back,” said Stuntz. “Not just the Justice Department and the federal defense bar, but federal judges all over the country implored the Court to decide whether the federal guidelines had any continuing viability in view of Blakely.”

The Court promptly agreed to hear appeals in two federal sentencing cases, Booker and Fanfan, and scheduled argument for the first day of the new term, Oct. 4, 2004. Three months later, it issued its decisions and opinions in both cases.

Snatching Victory from the Jaws of Defeat

In a majority opinion written by Justice John Paul Stevens and joined by Scalia, the Court held, as widely predicted, that the federal sentencing guidelines were unconstitutional under the doctrines announced in Blakely and Apprendi. But a second majority opinion written by Breyer and enabled by the switched allegiance of Justice Ruth Bader Ginsburg ’56-’58–which no one predicted–created the Booker remedy of converting the guidelines from binding rules to advisory ones. The second majority simply excised the provisions of the guidelines law that made them mandatory.

Instead of overturning the guidelines entirely or requiring jury fact-finding for all salient sentencing factors, the second part of Booker allows judges to continue making informal inquiries and findings of fact, without a jury.

“The guidelines were unconstitutional when they were mandatory and required judges to tie sentences to particular findings of fact that the Court was now saying were rightly the province of the jury,” said Berman. “By contrast, in a system where guidelines are merely advisory and not mandatory, the Sixth Amendment problem of fact-finding by judges goes away, at least theoretically, because there’s no requirement that the judge’s discretionary sentencing decision be tied to his having made some particular finding of fact that should rightly be for a jury to make.

“The more I think about the Booker outcome, the more amazed I am that Justice Breyer found a way to win the federal sentencing war despite having lost the Apprendi/Blakely battle,” said Berman. “Only time, and lots of litigation, will reveal the real impact of Justice Breyer’s remedial handiwork, which ultimately sets up a remarkable experiment in advisory guideline sentencing.”

Stuntz agrees. “Many academics think Breyer pulled off a fast one, but I think Breyer’s opinion was very judicious, a great piece of judging–though maybe not a wonderful piece of lawyering.”

But not all experts were impressed by the two-part ruling or the votes by Ginsburg that led to two different 5-4 majorities. Booker, wrote Professor Alan Dershowitz in a Jan. 17 op-ed in the Los Angeles Times, “reveals a Supreme Court in disarray.” The second majority, he pointed out, “ruled that it would be perfectly all right for a sentencing judge to resolve disputed facts against a defendant and to add years to his sentence based on them, so long as the judge said he was doing so at his discretion, not because he was forced to do it by the guidelines. The constitutional right of a defendant to have facts that could add years to a sentence decided by the jury was thus substantially, if not completely, undercut.”

“We have two equally authoritative opinions that seem irreconcilable,” wrote Dershowitz. “This decision, and many others over the past decade, can be explained only by means of patchwork pragmatism, vote-swapping and other considerations inappropriate for high court decision-making.”

Rules Moderated by Mercy

But other experts welcomed the result. “Booker and Fanfan, despite their own ambiguities, represent an improvement in terms of predictability over the incredible confusion that reigned in federal criminal practice in the immediate aftermath of Blakely,” said Professor Carol Steiker ’86. “They restore some judicial discretion that almost certainly will be used to make federal criminal sentences less harsh rather than more so–though they permit this as well–without the fear that there will be immediate reversion to the sentencing disparities that predated the guidelines, given that the federal judiciary has been steeped in guidelines practice for almost two decades.”

Stuntz sees Justice Breyer’s solution in the second part of Booker as a creative salvaging of guidelines without the morass that could have resulted had the Court required jury trials for all salient sentencing facts: “I think, in its own strange, two-part way, Booker gets us to a good result. It may lead us as close to an ideal system as we may ever get–rules moderated by mercy.”

Early reports since Booker suggest that most federal courts are using their newly restored discretion cautiously, consulting the guidelines and only occasionally deviating from them. But it’s still too early to tell whether disparities will make a comeback, and many of the new questions raised by Booker will have to be worked out piecemeal, through litigation, including the new standard by which appellate courts will review discretionary sentencing decisions for error.

So far, says Berman, judges are being careful to consult the guidelines and refer to them. “Maybe this will only be temporary, but for now it’s a lot like that song by The Who.”

“Meet the new boss,” he said. “Same as the old boss.”