Federal Sentencing Guidelines: Background, Legal Analysis, and Policy Options

In United States v. Booker, an unusual two-part opinion transformed federal criminal sentencing by restoring to judges much of the discretion that Congress took away when it put mandatory sentencing guidelines in place. In the first opinion, the Court held that the current mandatory sentencing guidelines violated defendants Sixth Amendment right to trial by jury by giving judges the power to make factual findings that increased sentences beyond the maximum that the jurys finding alone would support. In the second part, a different majority concluded that the constitutional deficiency could be remedied if the guidelines were treated as discretionary or advisory rather than mandatory. As a result of the decisions, the Court struck down a provision in law that made the federal sentencing guidelines mandatory as well as a provision that permitted appellate review of departures from the guidelines. The high Courts ruling gives federal judges discretion in sentencing offenders by not requiring them to adhere to the guidelines rather, the guidelines can be used by judges on an advisory basis. Historically, the way in which convicted offenders are sentenced falls under one of two penal policies -- indeterminate and determinate sentences. The perceived failure of the indeterminate system to cure the criminal, coupled with renewed concern about the rising crime rate throughout the nation in the mid-1970s, resulted in wide experimentation with sentencing systems by many states and the creation of sentencing guidelines at the federal level. Congress passed a sentencing reform measure, which abolished indeterminate sentencing at the federal level and created a determinate sentencing structure through the federal sentencing guidelines. In light of the Court ruling in Booker, the issue for Congress is whether or not to amend current law to require federal judges to follow guided sentences, or permit them to use their discretion in sentencing under certain circumstances.