News & Events

Print/PDF this page:

Print Friendly and PDF

Share this page:

"Sense and Sentencing"--A Commentary by Prof. Kate Stith and William Stuntz


(This essay originally appeared in the June 29, 2004, edition of the New York Times.)

Sense and Sentencing
By Kate Stith, Lafayette S. Foster Professor of Law at Yale Law School, and William Stuntz, professor of law at Harvard Law School


Last week the Supreme Court threw a very large wrench into the machinery of the criminal justice system. In Blakely v. Washington, the court struck down the sentencing guidelines used in Washington State. The ruling applies not only to Washington, but also to other states with similar systems -- and to the federal sentencing guidelines.

In her dissent, Justice Sandra Day O'Connor predicted that the decision would wreak havoc in the nation's courts. But it also could spur Congress to improve the system.

The court's decision sounds simple: all facts necessary to authorize a defendant's sentence must be found by a jury beyond a reasonable doubt, unless the defendant waives that right. Actually, this rule is a dramatic departure from current practice.

In the federal courts now, a defendant either pleads guilty or is convicted at trial. Then the judge -- not a jury -- holds a sentencing hearing, at which the judge considers a range of factors, like the defendant's prior record and the harm caused by the crime. The defendant's sentence is based on these considerations (and many more like them). Detailed federal rules issued by the United States Sentencing Commission -- and they are rules, not mere guidelines -- establish a narrow range of possible sentences.

In this system, virtually all the power is in the hands of prosecutors. The federal criminal code covers an enormous array of crimes. All those statutes, together with the complex web of sentencing guidelines that apply to them, amount to a long and elaborate menu of charging options for prosecutors. Which items prosecutors select from the menu determine who goes to prison, and for how long.

The menu is harsh. If a prosecutor decides to go for the most severe possible charge and aggravating sentencing factors, the sentence is usually long. Some 95 percent of federal convictions are obtained by guilty pleas, almost all of them based on plea bargains that prosecutors dictate. The terms of those plea bargains largely decide the defendant's sentence. The information judges see at sentencing is, for the most part, the information prosecutors want them to have.

Blakely rules this system out of bounds. Prosecutors are already at work drafting plea bargains to try to bypass the court's ruling, but no one knows how these bargains will be received.

Congress has the power to untie these legal knots while also restoring a system of checks and balances in federal criminal sentencing. It should amend the Sentencing Reform Act of 1984 (which established the sentencing commission and made its rules binding on judges) to change the commission's many rules into recommendations. Federal district judges would have the legal discretion to fix sentences, within the range now fixed by statutes -- the statutes that were largely superseded by the guidelines.

Of course, judicial discretion should not be total. Federal district judges should be required, as they are now, to explain their sentencing decisions. Federal appeals courts should throw out sentences that amount to an abuse of that discretion. Under such a system, federal judges would still pay attention to the sentencing guidelines. But the guidelines would not be a straitjacket. And prosecutorial power would be checked.

Nowhere in Blakely does the court suggest that there is anything unconstitutional in a system of advisory sentencing guidelines. Justice Scalia went out of his way to affirm the constitutionality of the pre-1984 federal system, which allowed judges to give sentences within wide statutory limits. But that system gave judges too much discretion. How much prison time a defendant got often depended on which judge heard his case -- not a healthy state of affairs, and not a world anyone should want to return to.

It would be far better to use the sentencing guidelines to give judges nonbinding direction and to let appeals courts ensure a reasonable degree of uniformity. Congress should let guidelines guide -- and judges judge.


Kate Stith, a former federal prosecutor, is a professor at Yale Law School. William Stuntz is a professor at Harvard Law School.