First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate's code to apply and you're not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner.
-- Pirates of the Caribbean
A bit more on the recent Supreme Court decisions. The issue at hand can be said to be unintended consequences. In the 1980s, with an assist from Stephen Breyer, Congress decided to set up a federal sentencing commission "with power to promulgate binding sentencing guidelines establishing a range of determinate sentences for all categories of federal offenses and defendants according to specific and detailed factors." [To quote an opinion that upheld the institution, Scalia alone dissenting.]
This was thought to be a means to provide a fairer means of sentencing, both more rational and less likely to be arbitrary in part depending on the defendant (which can have racial implications, suggesting why some liberals liked the idea).* Meanwhile, the drug epidemic had a new evil -- crack cocaine. Again with some support from liberals (if less of them), crack was deemed so dangerous that it warranted a 100-1 ratio (based on weight) when applying punishment as compared to powder cocaine, which did not have paltry punishments connected to it either. This leads to a three to six times greater sentence. To quote the recent ruling:
Congress apparently believed that crack was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers’ drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack’s potency and low cost were making it increasingly popular.
The sentencing guidelines system, as summarized in this opinion by Souter from last year's Rita ruling, led to various problems. One problem had more to do with the corresponding use of mandated sentences that in various instances (see crack cocaine) led to unjust results. Thus, the crack cocaine ruling amounted to a difference of 15 and 19 years, given mandated sentences, suggesting a core problem is not even addressed by the ruling. And, it is not even drugs per se -- the companion case involved Ecstasy and the statute (if not the guidelines -- which suggested 30 to 37 months) left open probation. A sentence the Supremes held as reasonable. Well, maybe under its sentencing jurisprudence, but probably not in a big picture way.
Another issue was that the guidelines often relied on various "factors" that judges decided, pursuant to weaker standards of proof, on their own. IOW, though a jury might convict a person for "x," said person might be liable for x+1 based on facts solely decided on by judges. And, this could mean a much higher sentence. Sentences that district judges often had little wiggle room in practice in handing down, since going beyond the guidelines left them open to reversal. In an rather ironic case (involving Rodney King's attackers), the Supremes did caution some discretion, but the net result tended to be restraint.
This was after all a goal, but it did feel to many that sentencing judges could not do their jobs -- a prime one fitting a sentence to an individual offender, something no mathematical scheduling formula could always do with precision. Meanwhile, the crack vs. cocaine discrepancy was deemed a bad idea too. The Sentencing Commission itself held that crack just wasn't that more harmful, the policy tended to penalize low level dealers more than big guns, and simply looked bad (especially since it disproportionately affected minorities). [Again, the Supremes summarized the matter in yesterday's ruling.] In fact, after the ruling, the Sentencing Commission retroactively reduced the guidelines by about seventeen percent. [See this article.]**
So, to cut to the chase, the Supremes held that judges could not sentence a defendant to a term higher than facts [except a previous conviction] decided by the jury would allow. A trick here is that many crimes have a range of punishment to pick from, so in practice, the judge very well might still be deciding facts on his/her own. Another wrinkle complicated things. When the Supremes decided the matter as to federal sentencing, a majority (5-4) decided that if judges could not decide "factors" on their own, federal sentencing guidelines had to be voluntary. But, the district court had to be "reasonable" about their use. FYI, Justice Breyer decided this, after noting that he didn't agree with disallowing judges to decide various facts on their own. So, I think it's really his revenge, honestly.
The latest rulings basically said "reasonable" is a pretty low bar, even if an earlier ruling said that if the district court basically assumed the guidelines were fine as a general matter that too was probably "reasonable" too. One can go on, but simply put, this has led to a lot of confusion and arguably nullifies a major point of the sentencing law behind the guidelines. Stevens thought so too, but joined in after awhile to stay loyal to precedent as did Scalia. Thomas, Alito and Souter, not so much. Souter made a sound point in the latest round:
I continue to think that the best resolution of the tension between substantial consistency throughout the system and the right of jury trial would be a new Act of Congress: reestablishing a statutory system of mandatory sentencing guidelines (though not identical to the original in all points of detail), but providing for jury findings of all facts necessary to set the upper range of sentencing discretion.
Expecting this Congress to do something this sensible is probably asking too much, so basically we have a regime now that appears to give district court judges broad discretion [the footnote below suggests the various objectives of sentencing are open-ended enough that "reasonable" is a low test, especially if probation when three years is suggested does the job], if they want it. If not, they can still let the guidelines guide them. Mandatory sentences in various cases will still lead to cruel results, but often enough there will be a lot of options to pick from.
And, this is just a tip of the iceberg discussion, but the broad discretion given to district court judges appears to suggest the Supremes thinks things are a bit messy as well. A "let district court handle it, we are done with this issue" flavor seems to be there. Thomas might be right this has a bit too much policy to it, Alito that so much discretion very well might ignore the policy behind certain statutory sentences, and Souter that the "solution" (which was a split the baby deal anyway that apparently only Justice Ginsburg was completely happy about) leaves something to be desired.
[Update: I made this comment because of the split here, but CJ Roberts was not on the Court (nor was Alito, but he dissented this time around, underlining his concerns), and concurred without comment here. BTW, Scalia had a pretty dry concurrence, showing sometimes his um wit is kept in check. His pal Ginsburg showed a bit of it in the third ruling, starting her concurrence thusly: "It is better to receive than to give, the Court holds today, at least when the subject is guns."]
But, c'est la vie people.
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* To quote a summary: "Congress set forth a guideline system to be personable for the specific case and placed 11 factors to consider when sentencing: grade of offense, aggravating circumstances, nature and degree of harm, community view, public concern, deterrent effect, current incidence. Another 11 factors were established to summarize the defendant: age, education, vocational skills, mental and emotional condition, physical condition, previous employment, family ties and responsibilities, community ties, role in the offense, criminal history, and degree of dependence upon crime for livelihood. Congress prohibited the Commission from addressing: race, sex, national origin, creed, and socioeconomic status."
** The Administration was -- shocker -- against this move. The mandatory sentences remain, so we are talking about a couple years, eight instead of ten years, let's say. And, often enough, non-violent offenders. This is simply not that big of a deal, honestly, and accepted here by a commission 7-0 with support of federal judges. But, knee jerk get tough on crime tactics are required, I guess.