Completing the Sentencing Revolution: Reconsidering Sentencing Procedure in the Guidelines Era

Abstract

The central innovation of the guidelines sentencing revolution has been the creation of a regime in which facts other than those required for conviction have necessary conse quences at sentencing. In days of yore, judges mulling a sentence were entitled to receive information from virtually any source on virtually any subject, but they were never obliged to pass public judgment on the truth or falsity of what they heard because no finding of fact could constrain their discretion to set a sentence anywhere within the boundaries set by statutory maxima and minima. No more. The project of the original United States Sentencing Commission was to identify those facts that ought to influence sentencing outcomes and then to create a set of rules embodying the command that sentences would be affected whenever the identified facts were found. The idea was to bring law to a region of the criminal justice system thought to be lawless by making sentencing a more adjudicatory and less discretionary process. Few revolutions, however sweeping, eradicate all traces of the anden regime. The sentenc ing revolution razed the old church of discretionary, rehabilitative sentencing, and erected on its site a new temple in which rules designed by an expert commission and ratified by the elected legislature would be applied based on judicial findings of fact. However, the architects of the revolution, enmeshed in the details of their soaring new legal edifice, seemingly forgot to check the sub-basement. They built the new superstructure of substantive sentencing law right over the procedural foundation of the old discretionary, non-adjudicatory system. In consequence, although guidelines sentencing requires extensive factfinding, the pro cedural rules governing the sentencing hearing are but little changed from the pre-guidelines era. Although judges must now make findings of fact as an integral part of the task of guide lines application, those findings are the product of a process in which the government's bur den of proof is only a preponderance of the evidence, defendants have limited rights to discovery of evidence germane to sentencing factors, much of the true fact-finding is done (at least preliminarily) by probation officers without the benefit of any formal evidentiary presen tation, and the sentencing hearing itself is not subject to the rules of evidence. Unsurprisingly, this odd discontinuity between the mandatory and fact-dependent character of substantive federal sentencing law and the extreme informality of federal sentencing procedure has been a source of discontent with the new system since its inception. Yet little has changed in the thirteen years since the Guidelines went into effect. In the last few years, however, the debate over sentencing procedure has heated up. Vari ous observers have suggested that the guidelines sentencing system has changed the very way in which "crimes" are defined. If the definition of a crime is a list of factual elements that, when proven, produce a specified range of punitive sanctions, then one can fairly argue that the Sentencing Guidelines are now the true federal criminal code, and that adjudication of "Guidelines crimes" occurs, not at trial or by plea, but at sentencing. Some have questioned whether this new state of affairs is consistent with constitutional jury trial and due process guarantees. The U.S. Supreme Court is in the midst of considering a series of cases that attempt to define the issues that must be adjudicated in a trial before a jury and those that may properly be decided by a judge alone in the procedurally informal setting of a sentencing hear ing. In 1999, the Supreme Court suggested in a footnote that the Sixth Amendment requires a jury determination of any statutorily enunciated fact that might increase the maximum sen tence of a defendant.1 As this issue of fsr goes to press, the Court has just decided Castillo v. United States,2 a challenge to 18 U.S.C. ? 924(c)(1), which increased the maximum sentence for using or carrying of a "firearm" in relation to a crime of violence when the weapon was a