On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Thursday, June 20, 2013
One aspect of criminal law that seems to attract far less attention than it deserves is the link between the statutory definition of a crime and the statutory penalty. Because we believe no two crimes and criminals alike, we give judges discretion to sentence within a range of punishment. And states have freedom to structure their penalty ranges in a variety of ways, some very narrow, some very broad.
Over the last fifteen years, the Supreme Court has put some significant constitutional limits on how judges can impose punishment within a given range. One of the most extensive sentencing schemes is the federal Sentencing Guidelines, which would require a judge compute a numeric value for the criminal offender and sentence him to the range for that numeric value. One of the many problems with the Guidelines was that a judge could find by a preponderance of evidence a variety of factors that would enhance the sentence the offender would receive, factors not really having to do with the offender but with the details of the crime, from the amount of drugs involved or the use of a firearm. In a series of opinions, the Supreme Court determined that a judge could not go beyond in sentencing the facts the jury had found. So, for example, if a jury convicted a defendant of possession of 50 grams of cocaine, but the judge determined later the defendant actually had 250 grams of cocaine – which resulted in a much larger sentence – the judge could not impose that more severe penalty because it infringed on the Sixth Amendment right that the jury, not the judge, find every fact that could increase the potential punishment.
This line of cases created havoc for guidelines oriented states and the federal system, which broadly defined crimes and punishment in wide ranges, leaving the guidelines to sort out the final sentence. Now, all those guidelines must be advisory, and states may need to be more specific about the elements of crimes and the range of punishment for those crimes.
All of the cases had dealt with facts that would increase the top level, or maximum, sentence a defendant could receive; no case had yet dealt with a lower level, or minimum, sentence. Until now. On Monday, the Supreme Court held, in Alleyne v. United States, that a fact that would increase a statutory minimum penalty must also be found by a jury beyond a reasonable doubt rather than by a judge by a preponderance of the evidence. The defendant had been convicted under a federal firearm statute that penalized the use of a firearm in relation to a crime of violence. The judge found at sentencing the defendant had brandished the firearm, an action that upped the mandatory minimum sentence from five years to seven years. The Supreme Court, in an opinion by Justice Clarence Thomas, ruled by a vote of 5-4 that there is no logical difference between increasing a ceiling (a statutory maximum) and a floor (a statutory minimum) – if the fact should have been found by the jury and increases the punishment, the judge must be limited to the findings of the jury. In so holding, the Court overruled itself, reversing a decision – Harris v. United States – decided in 2002.
While this decision makes much sense in the new world of jury rather judicial fact-finding with regard to sentencing, it probably has very little practical impact. First, a legislature could find ways around this problem by defining all crimes with the maximum sentence and allow the court to reduce a sentence if it finds mitigating facts. Second, and perhaps more importantly, most cases in state and federal court end in plea bargains, in which case no jury fact-finding is required – by waiving the Sixth Amendment right to trial by jury, the defendant agrees to allow a judge to sentence him within the applicable range. The court remains constrained by what is set forth in the indictment or information, and the guidelines will only be advisory, but the impact is much less still. As long as the prosecutor puts all of the factors that would increase punishment into the indictment or information to which the defendant admits guilt, the judge can rely on those admissions to impose a sentence.
The positive side of all of these developments in changes in sentencing is to hopefully dilute the push to plea out and make the government do its constitutional job – put all of its evidence before a jury. If these cases do result in sending more cases to trial, it is likely that (a) some defendants who would have plead guilty might end up with a not guilty verdict, and (b) the government will not prove as many facts to the jury beyond a reasonable doubt, resulting in lower overall sentences.
If you have questions about sentencing, contact us – we can help.