Commentary

Changing of the Gavel

This article originally appeared in the Legal Times on January 24th, 2005.

The bad news is that the federal criminal justice system is a mess. The good news is that United States v.Booker, the Supreme Court’s Jan. 12 landmark ruling on the federal sentencing guidelines, has handed President George W. Bush and the new Congress a historic opportunity to make some fundamental changes that will set things right.

As Bush’s second term gets under way, there is reason to believe that he will seize this opportunity. The columnist George F. Will once observed that there are two types of politicians—those who want to “be something” and those who want to “do something.” Whether you tend to agree with Bush’s policies or not, he has shown a willingness to address deep-seated problems. It can be all too easy, and tempting, for leaders to avoid difficult policy choices and nasty political battles by papering over problems until they become the next guy’s headache, but Bush is (generally) a doer.

Since sentencing reform was not something that the president had long planned on tackling, however, he’s going to need substantive policy advice. And he must be careful about the source of that advice lest he rush in and make a bad situation worse. Bush did not get his bold ideas on tax reform from the Internal Revenue Service, and he did not get his big vision for private retirement accounts from the Social Security Administration. As for the federal law enforcement bureaucracy, it is not likely to propose (or embrace) the sweeping reforms necessary to fix the problems that plague the criminal justice system. Instead, the federal bureaucracy is likely to call for the preservation of the status quo and, if any changes must be made, to urge the smallest adjustment possible that will mollify the constitutional issues that the Supreme Court has been raising—so that all this talk of reform will go away.

That is bad advice. President Bush has an opportunity to work with Congress to reshape the criminal justice system for a generation. It is a moment that should not be permitted to slip by.

Instead of the short-term, tactical mind-set that seems to pervade the Justice Department, Bush would be better advised to consult the long-term, strategic vision that can be found in the legal opinions of Justices Antonin Scalia and Clarence Thomas. Because Scalia and Thomas are the champions of conservative legal thought, their writings ought to be carefully studied before the White House and Congress make any plans to change federal sentencing law.

Let’s take stock, then, of where we are now and where we need to go from here, using the constitutional principles enunciated by Justices Scalia and Thomas as a guide to action.

Restrain the Commission

Congress passed the Sentencing Reform Act in 1984, creating the U.S. Sentencing Commission. The commission was directed to devise guidelines for U.S. district judges to follow when they sentence federal offenders.

When a constitutional challenge to this scheme reached the Supreme Court in Mistretta v. United States (1989), Scalia was the only justice to note the violation of the separation-of-powers principle inherent in this scheme. Although Congress has broad leeway to prescribe sentences, Scalia wrote, it cannot transfer that power to some other entity, such as the Sentencing Commission.

Speed up to today. The Booker decision declared the federal sentencing guidelines to be advisory only. That means the Sentencing Commission’s guidelines are, well, guidelines, notlegally binding standards. A district judge can no longer be overruled simply for meting out a sentence that is inconsistent with the guidelines. This is a positive development.

True, Scalia and Thomas expressed their disagreement with the rationale by which the Court finally reached this outcome in Booker, but no one can doubt their view that the unelected Sentencing Commission has finally been put in its proper place. The commission can still undertake research projects,conduct surveys, and make legislative recommendations, but it can no longer make law.

Therefore, if Scalia’s constitutional analysis in Mistretta was correct—and it was—the last thing that Congress ought to do in response to Booker is to revive the commission’s lawmaking power by restoring the mandatory nature of the federal sentencing guidelines.

Revive Jury Trials

Because Americans are bombarded with media coverage of titillating criminal trials (Martha Stewart, Scott Peterson, and, soon enough, Michael Jackson), most laypeople can be forgiven for believing that we have a system of adjudication to determine a person’s guilt and punishment. But although the Constitution speaks of jury trials, they are, in reality, a rarity in the modern system. Some 97 percent of the persons sentenced in federal court enter into plea bargains with prosecutors. No judge or jury weighs their fate.

We have essentially adopted a system of charge-and-sentence bargaining. This state of affairs should trouble people on all points of the political spectrum. We know that the absence of adjudication troubles Justices Scalia and Thomas. In Ring v.Arizona(2002), they decried the fact that our jury trial system is in “perilous decline.”

Federal prosecutors, on the other hand, do not wish to be bothered with such big-picture “abstractions.” Their focus is dealing with near-term problems, such as the waves of new cases flooding their offices each month. Prosecutors are under pressure to move them in and move them out.

So President Bush and Congress need to pay more attention to what Scalia and Thomas are saying about our precious right to trial by jury. To help revive jury trials in America, we need to re-examine plea bargaining and so-called real-offense sentencing.

Attorney General John Ashcroft had the right idea when he attempted to curtail the all-too-common practice of filing more-serious charges against defendants simply to exert leverage to induce a plea to reduced charges. Unfortunately, prosecutors in the field either didn’t “get that memo” or simply disregarded it—because the practice continues unabated. President Bush should tell the regional U.S. attorneys that their adherence to Ashcroft’s policy will be considered when determining who stays and who goes.

To help dispel the myth that the sky would fall without plea bargaining, Congress should direct the Sentencing Commission to conduct a comprehensive study on the jurisdictions that have experimented with its abolition over the years. For a period in the 1970s and 1980s, both California and Alaska did away with plea bargaining. The sooner we have an informed debate about plea bargaining, the better.

The jury trial guarantee is also threatened by a concept known as real-offense sentencing. Real-offense sentencing allows prosecutors and judges to add years of prison time to a person’s punishment based on information that was not presented to the jury and proved beyond a reasonable doubt. Prosecutors routinely put their strongest charge in the indictment and prove their case to the jury. But after the jury is discharged, they ask the judge to consider the defendant’s other purported crimes (i.e., “relevant conduct”) at sentencing. Under the federal guidelines, such uncharged conduct not only can affect where a person is sentenced within a guideline’s range, but also can be used to move the defendant into a much higher range. The threat of greater punishment for unproved crimes is routinely used to bludgeon people into accepting plea bargains.

Notably, not a single state embraces the Sentencing Commission’s approach to real-offense sentencing. Congress should jettison the real-offense sentencing paradigm and move to a convicted-offense model.

Let States Be States

Sentencing reform makes little sense without code reform. The federal criminal code is, to be kind, a mess. A 2002 Cato Institute report noted that many of the defects in the federal sentencing system could be traced back to “the disorganized and virtually incomprehensible set of crimes dispersed throughout the federal code.” Even worse, many of the crimes that have been federalized in recent years have a dubious constitutional basis.

Justices Scalia and Thomas have tried to arrest the runaway federalization of crime by reviving the constitutional principle of federalism. Since 1995, the Supreme Court, with Scalia and Thomas in the majority, has made it clear that Congress cannot just pass any law it deems desirable under the pretext of using its constitutional power to regulate commerce. In Scalia’s words, the Constitution confers upon Congress “not all governmental powers, but only discrete, enumerated ones(Printz v. United States(1997)).

President Bush and Congress should appoint a blue-ribbon commission with a mandate to propose a rollback of the federal criminal code. When the recommendations come in, Congress should immediately start pruning.

At the same time, Congress should also resist the urge to set a national sentencing policy. While Republicans can take pride in bringing greater transparency to our criminal justice system with truth-in-sentencing reforms, Congress should not be throwing money at the states with policy strings attached to try to force the states to fall in line with the federal model.

America is a big country, and the problems of crime vary across its vast reaches. Omaha does not have the gang crime of Los Angeles, for example. Bush and the Republican leaders of Congress can stand up for federalism, save the taxpayers’ money, and act in a spirit of bipartisanship by adopting a simple formula: Let the states govern themselves.

If the blue states want to abolish the death penalty and mandatory minimum sentences, leave them alone. If the red states want to end parole boards and adopt three-strikes laws, let them. One of the benefits of our decentralized system of criminal justice is that the states can experiment with different policies, and we can learn what works well and what works poorly.

If President Bush is not prepared to fight over these fundamental issues, he should at least heed the precautionary principle and do no harm. As troubled as the federal system remains, the Supreme Court’s work in United States v. Booker will improve matters at the margin.