Judicial Notebook

The Sentencing Reform Act of 1984 created the U.S. Sentencing Commission and directed the commission to create Guidelines for sentencing criminal defendants with an eye toward reducing disparities in sentences for similarly situated defendants. Under the Guidelines, a defendant's presumptive sentence is determined using a grid that takes into account the criminal offense and the defendant's criminal history. Absent judicial findings of aggravating or mitigating circumstances, the judge must sentence the defendant within the presumptive range provided by the Guidelines.

In a series of recent decisions, the U.S. Supreme Court has held that the Federal Sentencing Guidelines and similar state sentencing guidelines violate the Sixth Amendment.

Blakely v. Washington

In Blakely v. Washington (124 S.Ct. 2531 [2004]), the defendant entered a guilty plea to charges of "second-degree kidnapping involving domestic violence and the use of a firearm." Washington state law provided a standard sentencing range of 49 to 53 months for such an offense. However, a judge could increase the sentence beyond this range provided he or she found "substantial and compelling reasons justifying an exceptional sentence." Under this provision, the judge sentenced the defendant to 90 months based on his finding that the defendant had acted with "deliberate cruelty."

In a previous case, Apprendi v. New Jersey (530 U.S. 466 [2000]), the U.S. Supreme Court had held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The Court in Blakely held that the "statutory maximum" referred to in Apprendi 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." Following this reasoning, the court invalidated Blakely's sentence because the 90-month sentence depended on a judicial finding of deliberate cruelty, without which the sentence could not have exceeded 53 months.

Booker and Fanfan

Recently, in U.S. v. Booker, the court similarly held the federal Guidelines invalid.

In Booker, the defendant was convicted by a jury of possession with intent to distribute at least 50 grams of cocaine, an offense for which the statute provided a sentence of 10 years to life. Under the federal Guidelines, the maximum sentence for the offense based on the jury's findings alone was 262 months. However, the judge's sentencing findings about the quantity of drugs involved and the defendant's obstruction of justice increased the sentencing range to 360 months to life. The judge imposed a sentence of 360 months. On appeal, the Seventh Circuit, relying on the decision in Blakely, held that "the application of the guidelines in this case violated the Sixth Amendment."

In a companion case, U.S. v. Fanfan, the defendant was convicted by a jury of conspiracy involving at least 500 grams of cocaine powder. The trial court judge determined that based on this verdict, the applicable sentencing range under the federal Guidelines was 63 to 78 months. The judge concluded that, under Blakely, it would be unconstitutional to increase the sentence beyond that range based on any additional judicial findings of fact. Accordingly, the judge sentenced the defendant solely on the basis of the jury verdict and imposed a sentence of 78 months.

In considering both of these cases on appeal, the U.S. Supreme Court held that the Federal Guidelines violated the Sixth Amendment, rendered the Guidelines advisory (leaving judges to sentence defendants anywhere within the range specified by the criminal statute) and indicated that the "ball now lies in Congress' court" to craft a system for criminal sentencing.

Psychological research

The Supreme Court's decisions in these cases and its invitation for legislation raises interesting questions about how sentencing decisions are made, the roles of judges and juries in sentencing and what guidance is used to structure these decisions. As a variety of proposals for sentencing reform are now considered, data provided by psychologists can and should play a role.

Relevant research questions include: How do guidelines (or similar actuarial methods) affect the influence of extralegal factors, such as race, on sentencing decisions? How do experience and expertise (such as that of judges as compared with juries) affect the accuracy and consistency of decisions? How do the sentencing decisions of individual decision-makers (for example, judges) compare with those of groups (for example, juries)? What would be the effects of having the same decision-maker determine guilt and sentence? What effects might the reforms have on the behavior of those involved in plea-bargaining negotiations, such as defendants and prosecutors? Answers to these and other questions can play a vital role in the crafting of sentencing policy.

Judicial Notebook is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).