Brief Context of Sentencing Reform in the United States

On January 12, 2005, the Supreme Court handed down one of its strangest but most important opinions in many years, United States v. Booker, No. 04-104. Justice Stevens, writing for a five-justice majority, ruled that the federal sentencing guidelines could no longer be "mandatory." The system which required judges to find facts that determined which guidelines to apply was unconstitutional because it violated the Sixth amendment requirement of proof beyond a reasonable doubt by a jury. The fact must be found by a procedure that meets that test or must be admitted by the defendant.

Then Justice Breyer, writing for an almost completely different five justice majority (only Justice Ginsburg joined both opinions to create a majority for each), outlined the remedy, which was to hold that only the mandatory nature of the guidelines was unconstitutional but to otherwise uphold the sentencing guideline system. With the guidelines no longer mandatory, the traditional judicial fact finding that is part of sentencing need not meet the test of proof beyond a reasonable doubt.

Each justice wrote strong dissents from the majority opinion of the other justice.

Many federal courts have since issued their interpretations of Booker. One of the best sources of information about the current state of federal sentencing is the blog managed by Ohio State University Law Professor Doug Berman at http://sentencing.typepad.com.

Booker was foreshadowed on June 24, 2004 by the Supreme Court's opinion in Blakely v. Washington that drastically changed the way defendants are sentenced in state courts. Blakely cast serious doubt on the constitutionality of the US Federal Sentencing Guidelines. Click here to read CJPF Research Assistant Alex Zolan's analysis in 2004 of Blakely's implications. This paper is in PDF format, which requires Adobe Acrobat reader to open.

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Mistake with drug sentencing guidelines needs to be resolved - The Greensboro, North Carolina News Record published this op-ed by Eric E. Sterling about the problems of mandatory minimum sentencing on the front page of its opinion section. April 3, 2005.

Greensboro, NC is the home of U.S. Rep. Howard Coble, Chairman of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary. On April 12, the Subcommittee favorably reported to the full Committee two bills to create many additional mandatory minimum sentences, H.R. 1528, the "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005" and H.R. 1279, the "Gang Deterrence and Community Protection Act of 2005."

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Supreme Court Justice Anthony Kennedy's landmark speech to the American Bar Association on August 9, 2003 calls for a reinvigoration of the clemency process and an end to mandatory mininum sentences. This is a profoundly important call to action by one of the nation's leading jurists.