Whatever Happened to the Trial by Jury?The Unconstitutionality of Upward DeparturesUnder the United States Sentencing Guidelines

Ethan Glass*

TABLE OF CONTENTS

I. SENTENCE ENHANCEMENT LAW IN THEORY AND PRACTICE .... 348A. Upward Departures Under the United States

Sentencing Guidelines ............................ 348B. Goldilocks and the Three Enhancement Schemes ........ 351

1. Motive, Reality, and Other Reasons forConstitutional Deferral .......................... 352

2. Everything but the Kitchen Sink(Criminal History) Approach ..................... 353

3. Juries: The Final Frontier ........................ 35511. ANALYSIS OF THE STATE OF SENTENCE ENHANCEMENT LAW ... 357

A. How Apprendi Affects the U.S. Sentencing Guidelines .... 3581. The Constitutionality of the Defense Level and

Criminal History Steps of the Federal SentencingGuidelines After Apprendi ....................... 358

2. The Constitutionality of the Departure Provisions of theFederal Sentencing Guidelines After Apprendi ........ 359

3. The Effect of Apprendi on the FederalSentencing Guidelines .......................... 361

B. Upward Departures, Stare Decisis, and Justice .......... 3621. A Brief Survey of Supreme Court Decisions Relating

to Sentencing Enhancements ...................... 3622. Why We Punish Some More than Others ............ 364

a. The Purposes of Punishment ................... 365b. The Role of the Sentencer as Illustrated by the

Application of the Conclusions of this Commentto the Previously-Mentioned Fact Pattern .......... 367

c. The Purposes of Punishment as Illustrated by theApplication of the Conclusions of this Commentto the Previously Mentioned Fact Pattern .......... 369

* Associate, Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, Minnesota.Special thanks to Rachel S. Brass and the Honorable H. Peter Albrecht for their invaluablesupport, even though they may have disagreed with my ideas.

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3. Pomp and Consequence ......................... 369III. AND IN THE END ... ................................. 374

"In all criminal prosecutions, the accused shall enjoy the right to aspeedy and public trial, by an impartial jury.. .. "'

Federal judges were granted great discretion in sentencing, at least beforeCongress passed the Sentencing Reform Act; any sentence lesser than thestatutory maximum was within a judge's sole discretion.2 Under such a system,the information judges could consider was unlimited,3 the Federal Rules ofEvidence did not apply,4 and sentences were not privy to review. 5 Includedamong the results of this system were inconsistency and indeterminacy.

In order to remedy these shortcomings, Congress created the United StatesSentencing Commission and empowered it with the authority to create theFederal Sentencing Guidelines.6 The Commission developed the Guidelines toserve as a tool wherebyjudges could make a structured sentencing decision; thesentences would be more certain and serious repeat offenders could face stifferpenalties.' Although they give the judge discretion in sentencing-for example,a court may depart from the Guidelines for aggravating circumstances 8-the

1. U.S. CONST. amend. VI (emphasis added).2. David Fisher, Fifth Amendment-Prosecutorial Discretion Not Absolute:

Constitutional Limits on Decision Not to File Substantial Assistance Motions, 83 J. CRIM. L.& CRIMINOLOGY 744, 745 (1993). The only restriction on a sentence was that the sentencingjudge be confident that the defendant, the justice system, and society at large were all servedby the sentence. 18 U.S.C. § 3651 (1983), repealed by Act of Oct. 12, 1984, Pub. L. No. 98-473, tit. II, §§ 212(a)(1)-(2), 235(a)(1), 98 Stat. 1987; see also Williams v. New York, 337U.S. 241, 246 (1949); Burns v. United States, 287 U.S. 216, 220-21 (1932).

3. The sentencing judge may consider the defendant's background, behavior andpersonality, or any other considerations. 18 U.S.C. § 3661 (1994); Williams, 337 U.S. at 245.

4. See FED. R. EviD. 1101(d)(3).5. See Koon v. United States, 518 U.S. 81, 96 (1996) (citing Dorszynski v. United

States, 418 U.S. 424, 431 (1974); United States v. Tucker, 404 U.S. 443, 447 (1972)).6. U.S. SENTENCING COMM'N, AN OVERVIEW OF THE FEDERAL SENTENCING

GUIDELINES (n.d.) [hereinafter GUIDELINE OVERVIEW], available at http://www.ussc.gov/general/GLOVRWB.PDF (last visited Apr. 7, 2002).

7. U.S. SENTENCING COMM'N, AN OVERVIEW OF THE UNITED STATES SENTENCINGCOMMISSION (n.d.) [hereinafter COMMISSION OVERVIEW], available at http://www.ussc.gov/general/ovruweb.PDF (last visited Apr. 7, 2002).

8. See U.S. SENTENCING GUIDELINES MANUAL ch.1, pt. A4(b) (2001). The FederalSentencing Guidelines and other helpful material is available on the United States SentencingCommission website. See U.S. Sentencing Comm'n, at http://www.ussc.gov (last visited Apr.18, 2002). This Comment focuses on upward departures and will not engage in a more thancursory discussion of downward departures.

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Guidelines recognize a court is not entitled to "unfettered discretion."9

The pressing problem is by whom, and by what standard, should suchdeparture decisions be made. One option is that a party independent from thejudicial system, such as a sentencing consultant, 10 should make thesedeterminations. However, such addition is frustrated by the fact that threeparties-legislators, judges, and juries-already possess some power insentencing." As a result of this prior appropriation of sentencing power, theproper question surrounds the determination of which sentencing decisions eachof these three should make.

In setting sentences, legislators first detail what actions are punishable.12

Most recently, legislators further expanded that authority by passingmandatory minimums and sentencing guidelines. 3 Prior to the Guidelines,judges made sentencing determinations by assigning an actual punishment toeach offender, while juries convicted the defendant of a particular crime.'4

Under the modern Guideline system, judge authority to choose sentences islimited, while the jury power to convict remains the same." Thus, theGuidelines signal an attempt to redefine the balance of power between judgeand jury by tipping it in favor of the jury. This shift is perhaps most significantin the analysis of sentencing departures, when the judge again regains hersentencing authority.'6

The remainder of this Comment presents sentencing responsibilities inreference to the following fact pattern: A male Caucasian was accused of firingtwo rifle shots at the home of his African-American neighbor. 7 While onebullet entered a child's third-floor bedroom, others left the victim's front doorand windows "bullet-riddled.' 8 Among the many charges brought against thedefendant was first-degree attempted murder.'9 The defendant pleaded guilty

9. See COMMISSION OVERVIEW, supra note 7, at 2.10. The federal system already has non-adjudicative parties making sentencing

recommendations. See FED. R. CRIM. P. 32(b)(1), (4) (stating that the probation officer hasa duty to conduct an investigation and submit a report to the court detailing the results of theinvestigation).

11. See COMMISSION OVERVIEW, supra note 7, at 2; see also Apprendi v. New Jersey,530 U.S. 466, 481-88 (2000) (stating that the jury's role is to determine facts).

12. See COMMISSION OVERVIEW, supra note 7, at 2-3.13. See id.14. See Apprendi, 530 U.S. at 479. In some jurisdictions juries can also sentence,

however, this Comment focuses on the federal system, where they cannot.15. See generally id. at 479-90.16. See COMMISSION OVERVIEW, supra note 7, at 2-3.17. State v. Apprendi, 698 A.2d 1265, 1266-67 (N.J. Super. Ct. App. Div. 1997),

aff'd, 731 A.2d 485 (N.J. 1999), rev'd, 530 U.S. 466 (2000).18. Id.19. Id.

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to second-degree possession of a firearm for an unlawful purpose and third-degree unlawful possession of a prohibited weapon" for a bomb found duringa search of his house.21

At the sentencing hearing, a police officer testified that the defendantinformed the police he shot at African-American neighbors to let them knowthey were not welcome in the neighborhood.22 However, when he testified, thedefendant stated that he lied to the police because he wanted to end theinterrogation in order to avoid a threatening officer.3 In addition, the defendanttestified he was under the influence of drugs and alcohol at the time of theshooting.24 He further said he chose the particular house because the windowglass and purple front door caught his attention.25 Finally, he denied any racialmotivation. 6 He denied any and all involvement in racist activities and assertedthat he even had African-American friends.27

A psychologist testified that the defendant was obsessive-compulsive,prone to mood swings, dependent on both alcohol and drugs, a kleptomaniac,and suffering from bouts of premature ejaculation. 28 The psychologistconcluded that a person of the defendant's personality type could easily lie inorder to evade an interrogation by police officers.29

The jurisdiction had an applicable sentencing guideline with a standardsentencing range.3

' The guideline allowed for departure from the general rangein certain cases.3' One such exception empowered judges to "extend" asentence for racially-motivated crimes.32 In other words, the court couldsentence a defendant one degree higher if the crime is racially-biased. 33 As aresult, the extended sentence for the defendant's second-degree crimecorresponded to the ordinary range for a first-degree crime, and the extendedsentence for a third-degree crime corresponded to the ordinary range for asecond-degree crime.34 In the end, the presiding judge determined that the

20. Id.21. Id.22. Apprendi, 698 A.2d at 1267.23. Id. at 1266-67.24. Id.25. Id.26. Id.27. Apprendi, 698 A.2d at 1266-67.28. Id.29. Id.30. Id. at 1267.31. See id. at 1268.32. See Apprendi, 698 A.2d at 1268.33. Id. at 1267.34. See id.

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defendant was motivated by racial animus and assigned sentences within thisextended range.35

This fact pattern highlights three important questions regarding departuresfrom the Federal Sentencing Guidelines. First, how would the Guidelinesaddress the judge's decision that the standard sentencing range wasinsufficient? Second, considering United States Supreme Court doctrine, isthis departure consistent with the United States Constitution and SupremeCourt precedent? Third, does this interpretation of the Constitution arrive ata result that most effectively serves justice and achieves the purposes ofpunishment?

In an attempt to resolve these initial issues, the Supreme Court addressedApprendi v. New Jersey.36 The facts of this five-four decision are detailedabove. In Apprendi, the Court overturned the sentence because "[o]ther thanthe fact of a prior conviction, any fact that increases the penalty for a crimebeyond the prescribed statutory maximum must be submitted to a jury, andproved beyond a reasonable doubt., 37 Nevertheless, the Court left severalquestions unanswered.

This Comment identifies two major problems with upward departures asthey now exist in the Federal Sentencing Guidelines. First, the departure lawseemingly violates the Constitution by allowing a sentencing judge, rather thana jury, to find an element of a crime.38 Second, the departure law allows ajudge to make factual determinations that affect the particular crime for whicha defendant is punished. 39 Generally, departure allowances allow a judge tofind a fact by a preponderance of the evidence, rather than the Constitutionally-mandated beyond a reasonable doubt standard. n

This Comment analyzes this upward departure conundrum, surveys thecontext framing the debate between the conflicting solutions, and offers asolution that optimizes the purposes and benefits of criminal sentencing. PartI details the law of upward departures under the United States SentencingGuidelines and discusses the three Apprendi approaches of authorityallocation. Part II anticipates the effect of Apprendi on upward departures.Through an examination of Supreme Court precedent and the purposes ofpunishment, it finally confronts the issue of whether the anticipated Apprendiresult is most optimal for society.

35. See id.36. 530 U.S. 466 (2000).37. Id. at 490.38. See id. at 478-84.39. See 18 U.S.C. § 3553(b) (2000).40. See Apprendi, 530 U.S. at 491-92.

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I. SENTENCE ENHANCEMENT LAW INTHEORY AND PRACTICE

A. Upward Departures Under the United StatesSentencing Guidelines

Congress adopted the Sentencing Reform Act in 1984. 41 The Act createdthe United States Sentencing Commission, which was charged with thedevelopment of Federal Sentencing Guidelines 42 and the abolition of the parolesystem.

43

The Sentencing Guidelines are designed to weigh the seriousness of theoffense and the extent of the defendant's criminal history in order to determinethe appropriate punishment.' Every crime is first allotted a base offenselevel. 45 The judge adjusts the base offense level according to factors relating tothe committed act. 46 These factors are either "specific offense characteristics"or "adjustments. Specific offense characteristics are applied depending onthe type of crime, while adjustments apply regardless of the crime. 48 Forexample:

the specific offense characteristics for robbery (which has a base offenselevel of 20) involves the use of a firearm. If a firearm was displayed duringthe robbery, there is to be a 5-level increase, bringing the level to 25; if afirearm was actually discharged during the robbery, there is to be a 7-levelincrease, bringing the level to 27.

Alternatively, an example of an adjustment would be if the defendant hadknowledge of the victim's specific weakness, such as age or mental health.5°

In such a case, the base offense level is raised two levels.51

After the offense level is determined, the Guidelines require a review of the

41. The Sentencing Reform Act was enacted as part of the Comprehensive CrimeControl Act of 1984. Act of Oct. 12, 1984, Pub. L. No. 98-473, §§ 211-39, 98 Stat. 1837,1987 (codified in 18 U.S.C. §§ 3551-358, 3621-3625, 3742; 28 U.S.C. § 991-998 (1988)).

42. See 28 U.S.C. § 991 (1994).43. See Peter B. Hoffman, History of the Federal Parole System: Part 2 (1973-1997),

61 FED. PROBATION, Dec. 1997, at 49, 53.44. GUIDELINE OVERVIEW, supra note 6, at 1.45. Id. at 2.46. See id.47. Id.48. See id.49. Id.50. Id.51. Id.

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offender's criminal history-its magnitude and time.52 The sentencing range isdetermined by a chart, which takes into account both the offense level and thecriminal history.53 Finally, the judge may depart from the standard range if thejudge believes a factor was not adequately accounted for.54

Congress authorized departures as the sentencing judge's primary methodof making a sentence fit a particular defendant and a particular act.55 When ajudge determines that a particular case is outside of the "heartland," the judgemay depart.56 In other words, if the facts of the case at bar are sufficientlydifferent from the set of typical cases embodying the conduct described by eachGuideline (i.e. the "heartland"), then judges may depart from the standardsentence. In policy terms then, and "[v]iewed as a whole, the authority todepart provides 'sensible flexibility' to insure that atypical cases are notshoehorned into a Guidelines range that is formulated only for typical cases."58

Additional policies and procedures support the limited use of suchdepartures. For one, the heartland concept acts as a limit on departures becauseif they are not limited then "the unusual case [will] become the ordinary one. 59

Second, a judge should not regularly depart because a fair system ofpunishment "contain[s] a comprehensive and consistent statement of theFederal law of sentencing, setting forth the purposes to be served by thesentencing system and a clear statement of the kinds and lengths of sentencesavailable for Federal offenders., 60 Third, the Guidelines attempt to limit judgesto departing only in rare cases by requiring that they justify their reasons fordoing so in open court and a written opinion.61 More specifically, the opinionis to explicitly state:

that there exists an aggravating or mitigating circumstance of a kind, or toa degree, not adequately taken into consideration by the SentencingCommission in formulating the guidelines that should result in a sentencedifferent from that described. In determining whether a circumstance wasadequately taken into consideration the court shall consider only thesentencing guidelines, policy statements, and official commentary of theSentencing Commission. In the absence of an applicable sentencing

52. Id. at 3.53. See id.54. See id. at 4.55. See 18 U.S.C. § 3553(b) (2000); 28 U.S.C. § 991(b)(l)(B) (1994).56. See 18 U.S.C. § 3553(b).57. See U.S. SENTENCING GUIDELINES MANUAL ch. 1, pt. A4(b) (2001).58. United States v. Rogers, 972 F.2d 489, 493 (2d Cir. 1992).59. United States v. Lieberman, 971 F.2d 989, 996 (3d Cir. 1992).60. S. REP. No. 98-225, at 39 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3222.61. See 18 U.S.C. § 3553(c) (2000).

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guideline, the court shall impose an a propriate sentence, having dueregard for the purposes [of sentencing].w

Contrary to these policies and procedures against frequent departures:

[t]he aggregate statistical data published each year by the Commissionindicate that upward departures from the Guidelines are quite rare.

[I]n a significant minority of cases, departure is driven by thesentencing judge's desire to reach a result different from that specified inthe Guidelines, rather than by the presence of meaningfully atypical facts.6 3

Two provisions of the Guidelines authorize judges presented with anunusual case to depart from the specified sentencing range. 64 First, section4A1.3 permits departure where reliable information indicates that the criminalhistory category does not adequately reflect the seriousness of the defendant'scriminal history or likelihood of recidivism. 65 In exercising departure authorityunder this section, the judge must reference the appropriate guideline range ifa defendant has an extensive criminal history. 66 For example, the court granteddeparture where a defendant was convicted of conspiracy to transport womeninterstate for prostitution and sexual activity because his repeated encounterswith the criminal justice system and repeated incarcerations understated hisculpability and the strong likelihood of recidivism. 67

Second, the departure provision found in section 5K2.0 states a court maydepart if "there exists an aggravating or mitigating circumstance of a kind, orto a degree, not adequately taken into consideration by the SentencingCommission in formulating the guidelines, ''68 or that due to abnormalcircumstances the guideline level attached to that factor is either inadequate or

62. 18 U.S.C. § 3553(b) (2000).63. Michael S. Gelacak et al., Departures Under the Federal Sentencing Guidelines:

An Empirical and Jurisprudential Analysis, 81 MINN. L. REv. 299, 353, 364 (1996).64. See generally Apprendi v. New Jersey, 530 U.S. 466 (2000). There is a discussion

in Apprendi that may question whether the definition of upward departures included anysentencing decision that results in a punishment greater than the minimum prescribed in thestatute or whether the sentence must be above the maximum in the Guideline range. ThisComment will not engage in that debate because its conclusion does not affect the allocationof decision-making authority between the judge and jury. For ease, this Comment will assumean upward departure is a sentence above the guideline range maximum.

65. See U.S. SENTENCING GUIDELINES MANUAL § 4A1.3 (2001).66. See id.67. See United States v. Footman, 66 F. Supp. 2d. 83, 88-104 (D. Mass. 1999), aff'd,

215 F.3d 145 (1st Cir. 2000).68. U.S. SENTENCING GUIDELINES MANUAL § 5K2.0 (2001) (incorporating the

statutory language in 18 U.S.C. § 3553(b) (2000)).

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excessive.69 A judge is not constrained to the Guidelines in determining thefinal sentence when section 5K2.0 is involved.7° This unguided departure isillustrated by a case where the defendant's sentence was enhanced after aconviction of wire and mail fraud for selling forged and fraudulentdocuments. 7' The court cited his violation of trust, obstruction of justice, andgreedy, reprehensible character in asserting that he deserved a harsherpunishment.72

The Guidelines imply that a judge, rather than the jury, is to make thedetermination of whether an offender deserves a sentence above the prescribedrange.73 This implication is derived from the Guidelines' statement that "thecourt may consider imposing a sentence departing from the otherwiseapplicable guideline range"74 and "a sentencing court may impose a sentenceoutside the range established by the applicable guidelines. 75

When this understanding of federal sentencing law is applied, it is clearthat the sentencing judge in the above mentioned fact pattern behaved in amanner consistent with the Federal Sentencing Guidelines. However, thispreference for judges as the sole departure decision-maker creates questionsabout the validity of the Guideline's upward departure provisions. Thus, onemust consider what degrees of decision-making authority should be allocatedto the judge and the jury.

B. Goldilocks and the Three Enhancement Schemes

When the Supreme Court determined the Apprendi sentencing judgeexceeded his authority when he assigned a sentence exceeding the sentencingrange, the Court enunciated three notions of the distribution of sentencingenhancement authority.76 The first grants the jury significant authority to makefactual determinations leading to an upward departure.77 The second holds thata jury must find every fact except criminal history, which is left to a judge.7 8

The final approach asserts that a jury should make every factual determination

69. Id.70. Id.71. See United States v. Cusack, 66 F. Supp. 2d 493,496 (S.D.N.Y 1999), aff'd, 229

F.3d 344 (2d Cir. 2000).72. See id. at 517-18.73. See U.S. SENTENCING GUIDELINES MANUAL § 5K2.0 (2001).74. Id. § 4.A1.3 (emphasis added).75. Id. § 5K2.0 (emphasis added).76. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).77. See id.78. See id.

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affecting the sentence.79 In Apprendi, the Court found the first and finalapproaches respectively too soft and too hard, but the second just right.

1. Motive, Reality, and Other Reasons forConstitutional Deferral

Justice O'Connor based her Apprendi dissent on the assertion that "notevery fact that bears on a defendant's punishment need be charged in anindictment, submitted to a jury, and proved by the government beyond areasonable doubt."8" In defining the elements of a crime, the legislature shoulddetermine which facts should be "charged in an indictment, submitted to a jury,and proved by the government beyond a reasonable doubt."81

O'Connor posited that the statute did not inappropriately shift the burdenof proof,82 inappropriately increase the sentence's magnitude,83 or evadeconstitutional requirements.84 After a lengthy and systematic critique of theopinions of Justices Stevens and Thomas,85 Justice O'Connor evaluated theNew Jersey statute. In short, she asserted that the State placed weight onwhether the defendant's motive was racially based.86 She concluded that suchemphasis is justified by case law interpreting constitutional protections.87

Justice Breyer made a similar decision based on similar theories. Heconceded that the majority decision would be a "procedural ideal" but assertedthat "the real world of criminal justice cannot hope to meet any such ideal."88

The majority rule is impractical, at the least, because the system can onlyoperate properly with "procedural compromises," especially in respect tosentencing.89 Justice Breyer noted that under a sentencing system dependingonly upon the charged crime, offenders of the same crime would be treatedsimilarly notwithstanding notable differences in the manner in which theycommitted that crime.90 He continued by explaining why judges, rather than

79. See id.80. Id. at 524 (O'Connor, J., dissenting).81. See Apprendi, 530 U.S. at 524 (O'Connor, J., dissenting).82. See id. at 552 (citing Patterson v. New York, 432 U.S. 197, 215 (1977)).83. Id.84. Id. at 552-53.85. See id. at 523-52.86. Apprendi, 530 U.S. at 553 (O'Connor, J., dissenting) (citing McMillan v.

Pennsylvania, 477 U.S. 79, 89-90 (1986)).87. See id. at 553-54.88. Id. at 555 (Breyer, J., dissenting).89. See id.90. Id. at 555-56 (citing U.S. SENTENCING COMM'N SENTENCING GUIDELINES AND

POLICY STATEMENTS, pt. A, at 1.5 (1987)).

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juries, should sometimes make the sentencing determination.9 He concludedthat "to require jury consideration of all such factors... could easily place thedefendant in the awkward (and conceivably unfair) position of having to denyhe committed the crime yet offer proof about how he committed it."92

Furthermore, "while special postverdict sentencing juries could cure thisproblem, they have seemed (but for capital cases) not worth theiradministrative CoStS.

9 3

Justice Breyer concluded that the majority rule: encourages legislatures tocreate sentencing minimums, 9" creates serious uncertainty about theconstitutionality of statutes with sentencing factors,95 and "impede[s]legislative attempts to provide authoritative guidance as to how courts shouldrespond to ... traditional sentencing factors."96 Therefore, the end result istypically only satisfactory procedural safeguards.97 In short, both JusticesBreyer and O'Connor stressed, albeit for slightly different reasons, that it isappropriate for a judge to use facts of a crime (their term is "motive") as asentencing factor.98

2. Everything but the Kitchen Sink(Criminal History) Approach

The Apprendi holding states: "Other than the fact of a prior conviction,any fact that increases the penalty for a crime beyond the prescribed statutorymaximum must be submitted to a jury, and proved beyond a reasonabledoubt." 99

Justice Stevens began the majority opinion with a discussion of the generalconstitutional protections in criminal trials."° The constitutional combinationof the Fourteenth Amendment guarantee to due process of law and the SixthAmendment promise to a speedy and public trial by an impartial jury entitlesa defendant to a jury determination of every charged element beyond areasonable doubt.'0 ' The guarantee to a trial by jury requires that "the truth of

91. Apprendi, 530 U.S. at 555 (Breyer, J., dissenting).92. Id. at 557.93. Id.94. Id. at 564.95. Id. at 565.96. Apprendi, 530 U.S. at 565 (Breyer, J., dissenting).97. See id. at 565-66.98. See id.99. Id. at 490 (majority opinion).100. Id. at 476-85.101. Apprendi, 530 U.S. at 476-77 (citing United States v. Gaudin, 515 U.S. 506, 510

(1995); Sullivan v. Louisiana, 508 U.S. 275,277-78 (1993); In re Winship, 397 U.S. 358, 364

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every accusation, whether preferred in the shape of indictment, information,or appeal, should afterwards be confirmed by the unanimous suffrage of twelveof [the defendant's] equals and neighbours. 1°2 In addition, the state mustconvince the jury of a defendant's guilt regarding each element of the crime,and it must convince them "beyond a reasonable doubt.""1 3 Therefore, thedifference between an "element" of a crime and a "sentencing factor" becomessignificant to say the least.

In his distinction of these two terms, Justice Stevens first examined thediscretion historically given to judges and juries.1 04 In the traditional model, ajury made determinations of fact after receiving the indictment alleging all thecircumstances of the particular offense. 105 This model enabled the defendant toprepare his defense and eliminated all doubt as to which punishment would begiven upon conviction.106 The defendant's ability to predict the punishmentwith relative certainty came from "the invariable linkage of punishment withcrime." 107 Thus, in a classic criminal trial, the judge had very little sentencingdiscretion.

108

A judge was not powerless, however. His power was simply centered intwo areas. First, for each offense the substantive law mandated a specificsentence.109 As a result, a judge had a choice to either impose the statutorysentence or to commute it if circumstances found that sentence inappropriate. 110

Second, a judge could exercise discretion in imposing judgment within therange proscribed by statute."'

Justice Stevens then turned to the term "sentencing factor," which hedefined as a fact not found by a jury but affecting the judge-imposedsentence. 112 He repeatedly cited McMillan v. Pennsylvania,113 where the

(1970)).102. Id. at 477 (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES 343 (1769)

(alteration in original); citing Duncan v. Louisiana, 391 U.S. 145, 151-54 (1968)).103. Id. at 478 (citing In re Winship, 397 U.S. at 361).104. Id. at 478-83.105. See id. at 478 (citing J. ARCHBOLD, PLEADING AND EVIDENCE IN CRIMINAL CASES

44 (15th ed. 1862)).106. See Apprendi, 530 U.S. at 478-79.107. See id. at 478-79 (citing 4 WILLIAM BLACKSTONE, COMMENTARIES 369-70 (1769)).108. See id. at 479 (citing John H. Langbein, The English Criminal Trial Jury on the

Eve of the French Revolution, in THE TRIAL JURY IN ENGLAND, FRANCE, GERMANY1700-1900, at 36-37 (Antonio Padoa Schioppa ed. 1987)).

109. See id.110. Seeid.111. See Apprendi, 530 U.S. at 481 (citing Williams v. New York, 337 U.S. 241, 246

(1949)).112. See id. at 485 (citing McMillan v. Pennsylvania, 477 U.S. 79 (1986)).113. 477 U.S. 79 (1986).

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Supreme Court upheld a state criminal statute because the statute did not altermaximum penalties. 114 The statute limited the judge's discretion to selecting apenalty within a range. 15 The Apprendi majority explicitly emphasized that itdid not overrule McMillan.16 Instead, Justice Stevens clarified that asentencing factor is limited in "cases that do not involve the imposition of asentence more severe than the statutory maximum for the offense establishedby the jury's verdict."1 7 However,

when the term ... is used to describe an increase beyond the maximumauthorized statutory sentence, it is the functional equivalent of an elementof a greater offense than the one covered by the jury's guilty verdict.Indeed, it fits squarely within the usual definition of an "element" of theoffense.118

The majority concluded that "[o]ther than the fact of a prior conviction,any fact that increases the penalty for a crime beyond the prescribed statutorymaximum must be submitted to a jury, and proved beyond a reasonabledoubt."' 19 According to Justice Stevens, this rule ensures a political check onpotentially harsh legislative action because it obligates a State to make itscriminal law keeping in mind the potential consequences. 120

Alternatively, the majority drew a distinction between facts that aggravatepunishment and those that mitigate.1 21 The latter provides defendants adeprivation of liberty or stigma that is less than those provided by thestatute. 122 Therefore, the requirement of a jury determination and the burdensof proof are not a concern with sentences below the statutory minimums; therules are different if the departures are upward or downward. 21

3. Juries: The Final Frontier

In his concurrence, Justice Thomas agreed with the majority's conclusion,

114. See Apprendi, 530 U.S. at 486 (citing McMillan, 477 U.S. at 86-88).115. See id. (citing McMillan, 477 U.S. at 87-88).116. See id. at 487 n.13.117. Id.118. Id. at 494 n.19 (citing id. at 501-02 (Thomas, J., concurring)).119. Apprendi, 530 U.S. at 490.120. Id. at 490 n. 16 (citing Patterson v. New York, 432 U.S. 197, 229 n. 13 (Powell, J.,

dissenting)).121. Seeid. at491 n.16.122. See id.123. See id.

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but believed the rule adopted should have been broader. 124 He foundprecedential indictment cases provide a useful definition of "element.' ' 25

Because a defendant's constitutional protections depend on the factsconstituting the crime,'26 such facts are the elements of the crime. 127 Winshipexplains that all elements of a crime must be proven beyond a reasonable doubtin a proper jury trial. 128 Hence, the determination of which facts constitute an"element" is critical. 129 Justice Thomas went on to state that sentencingenhancements are special facts increasing a defendant's punishment, but arenot subject to constitutional protections like elements. 30

Although the use of sentencing enhancements is relatively modern, courtshave made the fundamental determination of which facts are elements in thecontext of indictments.' In examining that jurisprudence, Justice Thomasconcluded that, "[a] long line of essentially uniform authority addressingaccusations... establishes that the original understanding of which facts areelements was even broader than the rule that the Court adopts today."' 3 2 If astatute makes the punishment more severe when accompanied with aggravatingcircumstances, the statute creates "two grades of a crime," thus requiringindependent jury determinations. 133

Justice Thomas argued that McMillan "began a revolution in the lawregarding the definition of 'crime. ', 134 The Apprendi decision is merely areturn to "the status quo that reflected the original meaning of the Fifth andSixth Amendments."' 35 He concluded that the traditional definitions of crimes,definitions that included every fact that serves as a basis for imposing orincreasing punishment, continued at least until the middle of the twentiethcentury. 1

36

124. Apprendi, 530 U.S. at 499 (Thomas, J., concurring).125. Id. at 501.126. Id. at 500.127. Seeid.128. See id. (citing In re Winship, 397 U.S. 358, 364 (1970); JOSEPH STORY,

COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, §§ 928-929, § 934 (Boston,Hilliard, Gray, & Co. 1833)).

129. Apprendi, 530 U.S. at 500 (Thomas, J., concurring).130. See id.131. See id. at 500-01.132. Id. at 501.133. See id. at 503-04 (quoting Lamed v. Commonwealth, 53 Mass. 240, 242 (1847)).134. Apprendi, 530 U.S. at 518 (Thomas, J., concurring).135. Seeid.136. See id. (citing Mark D. Knoll & Richard G Singer, Searching for the "Tail of the

Dog": Finding "Elements" of Crimes in the Wake ofMcMillan v. Pennsylvania, 22 SEATTLEU. L. REV. 1057, 1069-81 (1999)).

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Justice Thomas interpreted the indictment decisions' definition of the term"crime" to include every fact that is included in the decision making process forpunishment. '37 Basically, the facts of an aggravated crime are the elements ofthat crime.' 38 For, "[o]ne need only look to the kind, degree, or range ofpunishment to which the prosecution is by law entitled for a given set of facts.Each fact necessary for that entitlement is an element."' 139 Alternatively, if afact is not a basis for punishment, it is not an "element.' 140 Under this analysis,whether legislatures entitle judges to sentencing discretion is not relevant. 141 Itis also not relevant that a certain fact is a conventional basis for the court toimpose a greater sentence 142 or that the sentencing guidelines have singularstatus under Mistretta v. United States. 143 In short, for Justice Thomas, anelement is any fact that increases a punishment.

II. ANALYSIS OF THE STATE OF SENTENCEENHANCEMENT LAW

This Comment has described the manner in which the United StatesSentencing Guidelines were drafted to allow federal judges to determine thatan upward departure is appropriate. It has also explained that the United StatesSupreme Court recently found certain judicial sentencing discretionunconstitutional.

Two questions remain. First, how does Apprendi affect the United StatesSentencing Guidelines? Second, is the upward departure rule the best solutionto cases presenting sentencing problems? The following section confronts theformer issue by looking to the three major Apprendi opinions and concludingthat the five-judge majority would strike the United States SentencingGuidelines' current upward departure sections in section 5.K2.0 but preservesection 4A1.3. The latter question is addressed through a comparison of thepurposes of punishment and the consequences of each possible decision-makingallocation.

137. See id. at 501.138. See id.139. Apprendi, 530 U.S. at 501 (Thomas, J., concurring).140. Id. at 504.141. See id. at 519.142. See id. at 520.143. See id. at 523 n.ll.

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A. How Apprendi Affects the U.S. Sentencing Guidelines

1. The Constitutionality of the Defense Level andCriminal History Steps of the Federal Sentencing

Guidelines After Apprendi

As previously noted, the Apprendi Court held that the constitutionalprotections of the Due Process Clause and the right to a jury trial entitledefendants to a jury determination of each element of the charged crime beyonda reasonable doubt.l" This protection guarantees the jury will determine thevalidity of every accusation 45 at the higher burden of "beyond a reasonabledoubt.', 146 This requirement is emphasized by the goal that the defendant willbe able to predict the punishment from the indictment alone. 147 In definingwhich facts are elements, the majority concluded, "any fact (other than priorconviction) that increases the maximum penalty for a crime must be chargedin an indictment, submitted to a jury, and proven beyond a reasonabledoubt.'

148

The generalized language of the Apprendi holding indicates itsapplicability beyond the facts and procedural posture of that particular case. 149

In addition, the court only voiced one limitation: prior convictions are exceptedfrom necessary jury determination. 5 0 The majority, however was not aware ofthe impact its decision would have on the United States SentencingGuidelines. '' It did not limit its decision to state hate crime laws.

Before delving into the actual "departure" sections of the federalguidelines, it is important to recall that either "specific offense characteristics"or "adjustments" can modify the base-level offense.'52 Specific offensecharacteristics depend on the type of crime, while adjustments apply regardlessof the crime.'53 The significance of specific offense characteristics andadjustments is that they are, in effect, departure provisions. '54 In our examples,they allow a judge to determine whether a gun was used or whether a victim

144. Apprendi, 530 U.S. at 490.145. Id. at 477.146. Id. at 476.147. See supra notes 106-07 and accompanying text.148. Apprendi, 530 U.S. at 476.149. See id.150. Id.151. See id. at497 n.21.152. See supra notes 47-52 and accompanying text.153. See supra notes 47-52 and accompanying text.154. See supra notes 49-50 and accompanying text.

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was vulnerable. 55 Thus, the sentencing judge can increase the terms of adefendant's punishment by increasing the offense level.

According to Apprendi, the jury must find both specific offensecharacteristics and adjustments beyond a reasonable doubt because neitherpertains to prior convictions. 56 A fortiori, the standard enunciated in theStevens opinion would strike these provisions. '57 Alternatively, the O'Connorand Breyer dissents would uphold such provisions because they indicatemotive. '58 These justices would uphold the provisions so long as the defendantis protected by the substantive "heartland" concept.'59 In addition to thisconcept, procedural accountability is ensured by the requirement that thesentencing judge release a written statement of the reasons the defendant shouldreceive an upward departure.'6° Only Justice Thomas would be concerned withthe Guideline mandate that a judge independently determine the extent of thedefendant's criminal history. 161

2. The Constitutionality of the Departure Provisions of theFederal Sentencing Guidelines After Apprendi

Assuming that the offense level and criminal history steps in the sentencingprocedure detailed by the Guidelines would pass constitutional muster, the nextstep is the constitutionality of the departure provisions. As previously noted,departures are integral to the Guidelines,'62 as they allow for thepersonalization of sentences. 163 A significant result of this individuation is thatit is not likely that a judge would strike a general departure law.

Apprendi indicates that the problem instead lies with the Guidelines'allocation of decision-making authority between the judge and jury, as well astheir respective burdens of proof.1" The real debate will begin when the Courtturns to federal guideline sections 4A1.3 and 5K2.0.

Recall that section 4A1.3 allows a judge to depart from the Guidelinerange if a defendant's criminal history score does not in fact represent his

155. See supra notes 47-52 and accompanying text.156. Apprendi, 530 U.S. at 476.157. See supra Part I.B.2.158. See supra Part I.B.1.159. See supra Part .B. 1.160. See supra notes 61-62 and accompanying text.161. See Apprendi, 530 U.S. at 476; supra Part I.B.3.162. See supra notes 7-9 and accompanying text.163. See supra notes 7-9 and accompanying text.164. See Apprendi v. New Jersey, 530 U.S. 466, 476 (2000).

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criminal history.'65 The criminal history score is determined by the valuationof the defendant's past convictions.166 Often, the convictions are the result ofa plea bargain or jury conviction of a lesser crime. 6 7 Section 4A1.3 allows ajudge to increase a sentence to compensate for the inadequate valuation of thedefendant's criminal history. 168

An application of Apprendi to section 4A1.3 reveals the section wouldsurvive constitutional scrutiny. The Stevens opinion explicitly excludescriminal history from departure facts that must be proven beyond a reasonabledoubt. 169 To clarify Justice Stevens' definition of "fact of prior conviction,"section 4A1.3 allows a judge to depart based on the Guidelines' inadequatevaluation of the seriousness and frequency of the defendant's previouscrimes. 170 Thus, a judge departing under section 4A1.3 is doing so solely onprior convictions.

Thus, there are two options for the meaning of "fact of prior conviction."The first lies in the fifty-fifty answer to whether the defendant has a priorconviction.'' The second is much broader-Apprendi indicates that JusticeStevens was not limiting the exception to the former option. Because the "factof prior conviction" is part of sentence determination under the FederalGuideline System, 172 defining an exception as such would render the exceptionmeaningless. Therefore, the "fact of prior conviction" most likely refers to thecircumstances surrounding prior crimes. 173 An application of thisunderstanding would lead the Apprendi Court to uphold section 4A1.3departures.

Concurrently, under the analysis of Justice O'Connor, section 4A1.3 issimilarly valid because the section's departures represent a judicialdetermination of motive. ' Even criminal behavior not proven to the jurybeyond a reasonable doubt shows that the defendant has motive to recommitillegal acts. 175

Finally, Justice Thomas would strike section 4A1.3 departures because, in

165. See supra notes 65-67 and accompanying text.166. GUIDELINE OVERVIEW, supra note 6, at 3.167. See U.S. SENTENCING GUIDELINES MANUAL § 4A1.3 & cmt. (2001).168. See supra notes 65-67 and accompanying text.169. See Apprendi, 530 U.S. at 476.170. See U.S. SENTENCING GUIDELINES MANUAL § 4A1.3 (2001).171. See generally Apprendi, 530 U.S. at 516-18 (Thomas, J., concurring); supra notes

65-67 and accompanying text.172. See U.S. SENTENCING GUIDELINES MANUAL § 4A1.3 (2001).173. See Apprendi, 530 U.S. at 512-19 (Thomas, J., concurring); supra Part I.B.2.174. See supra notes 80-93 and accompanying text.175. See generally Apprendi, 530 U.S. at 552-54 (O'Connor, J., dissenting); supra notes

80-93 and accompanying text.

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effect, it allows judges to aggravate a sentence. 176 This aggravated sentencingcorresponds to an aggravated crime-a crime for which the defendant was notactually convicted.' Thus, section 4A1.3 improperly transfers the decision-making powers of the jury to the judge. 7 8 This leads to an interesting result.The five-judge Apprendi majority who struck the departure scheme wouldbecome an eight-judge majority upholding section 4A1.3, one of the departureprovisions of the Guidelines.

On the other hand, section 5K2.0 departures allow judges to consider factsother than prior convictions. '79 As a result, Justice Stevens would invalidate thesection.180 Of course, Justice Thomas would agree that section 5K2.0 violatesconstitutional protections."'8 However, Justice O'Connor would most likelyfind that aggravating circumstances are indicative of motive. 182 The cumulativeresult is that the Supreme Court would find section 5K2.0 unconstitutional ina five-four decision, just as it did in Apprendi. 183

An examination of the Federal Guideline departures in the context ofJustice Breyer' s efficiency argument is beneficial. In his dissent, Justice Breyerasserts two goals of jurisprudence. The first is the reduction of caseload andgridlock, while the other is the limitation of jury confusion."s4 In terms of theformer, the departure provisions obviously increase trial speed by allowing anexperienced judge to make factual determinations in lieu of unanimity in agroup of twelve novices and strangers. In terms of the latter, limitation ofarguments obviously reduces the opportunity for juror confusion. Therefore,Justice Breyer would uphold sections 4A1.3 and 5K2.0.

3. The Effect of Apprendi on the FederalSentencing Guidelines

Regardless of the majority opinion's bravado, Apprendi may have littleeffect on the upward departures of the United States Sentencing Guidelines. Aspreviously noted, the decision strikes a state hate crime sentence enhancement

176. See supra Part I.B.3.177. See Apprendi, 530 U.S. at 501 (Thomas, J., concurring); see also supra Part I.B.3.178. See Apprendi, 530 U.S. at 498 (Scalia, J., concurring); see also supra Part I.B.3.179. See supra notes 68-69 and accompanying text.180. See supra Part I.B.2.181. See supra Part I.B.3.182. See supra Part I.B.1.183. See supra notes 178-82 and accompanying text.184. See Apprendi v. New Jersey, 530 U.S. 466, 577 (2000) (Breyer, J., dissenting)

(reasoning that a system "tailored to fit every conceivable wrinkle of each case can becomeunworkable" and "[t]o ask a jury to consider all, or many, such matters would do the same")(quoting U.S. SENTENCING GUIDELINES MANUAL pt. A, at 1.2)).

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law that was quite different from the provisions of United States SentencingGuidelines. 185 Moreover, the Court did so by a fragile five-four decision.' 186

B. Upward Departures, Stare Decisis, and Justice

The preceding discussion predicts how the Supreme Court will decide achallenge to the upward provisions in the United States SentencingGuidelines.187 After completing such an illustration, the most obvious concernis policy. Is the decision right? Is it consistent with justice and fairness? Anexploration of these issues must entail a discussion of the theories ofpunishment and the manner in which they influence the distribution ofdeparture discretion. In fact, the Guidelines themselves indicate that the reasonsfor punishing some individuals more than others must never be forgotten.188 Inaddition, a dialogue of the systematic consequences must be initiated. Onlythrough a consideration of these factors can the best solution to the upwarddeparture problem be determined.

1. A Brief Survey of Supreme Court Decisions Relatingto Sentencing Enhancements

A consideration of whether facts showing the need for an upward departureare elements or enhancements raises two issues. The first is essentially a "whoquestion." Should a judge or jury make these types of factualdeterminations? 189 The second is a "standards question." What should be thestandard of proof for such factual and review determinations? 19° Standards ofproof and review are different for determinations of fact made by a judgeversus those made by a jury.' 9' There are obvious effects to adopting onestandard over another. 192 Thus, a review of the rules, and the reasons for thoserules, is required in order to effectively determine whether the Court wascorrect in its definitions of "element" and "enhancement."

The United States Constitution and jurisprudence provide defendants

185. See supra notes 31-34 and accompanying text.186. SeeApprendi, 530 U.S. at 468.187. See supra Part 1l.A.188. See 18 U.S.C. § 3553(b) (1994); U.S. SENTENCING GUIDELINES MANUAL ch. 1, pt.

A4(b) (2001).189. See generally Apprendi, 530 U.S. at 475-90.190. See generally id.191. See, e.g., Koon v. United States, 518 U.S. 81, 97-98 (1996); Jackson v. Virginia,

443 U.S. 307, 318-19 (1979).192. See Koon, 518 U.S. at 97-98; Jackson, 443 U.S. at 318-19.

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numerous safeguards. 93 The Supreme Court clearly stated "the Due ProcessClause protects the accused against conviction except upon proof beyond areasonable doubt of every fact necessary to constitute the crime with which heis charged." '94 Furthermore, the prosecutor must prove factors that make "asubstantial difference in punishment and stigma"' 95 beyond a reasonable doubt.These rights provide defendants a "safeguard against the corrupt oroverzealous prosecutor and against the compliant, biased, or eccentricjudge."'

196

As a result of these constitutional and jurisprudential foundations, jurieshave the power to protect defendants, even going so far as to ignore theevidence and law and return an acquittal.' 97 This jury nullification furtherallows the defendant to use the constitutional prohibition against doublejeopardy to immunize himself from ever being tried for that same offenseagain. 198 The importance of the jury is further emphasized by the fact thatjudges are precluded from directing a verdict of guilt. 99 It is also important tonote that the reliance in the jury system, though imperfect, is not as flawed assome academics assert. The capacity of the jury has been the subject of muchdebate, particularly the capacity of the jury to understand complex issues.2°°

Clearly, departures based on judicially-determined facts deprive the defendantof his substantive constitutional right to have facts proven beyond a reasonabledoubt and his procedural constitutional right to have a jury make such factualdeterminations.20'

There is an additional inequity when a judge makes determinations of fact.Consistent with the doctrine of jury nullification, there is no appeal of a juryacquittal.2 °2 In the case of a jury mistakenly finding a fact leading to an upwarddeparture, an appellate court will overturn the departure if the record cannotreasonably support the findings.2 3 In other words, the appellate court will

193. See, e.g., U.S. CONST. amends. IV, V, VI, VIII, IX; In re Winship, 397 U.S. 358,364 (1970).

194. In re Winship, 397 U.S. at 364.195. Patterson v. New York, 432 U.S. 197,226 (1977) (Powell, J., dissenting); see also

Donald A. Dripps, The Constitutional Status of the Reasonable Doubt Rule, 75 CAL. L. REV.1665, 1676 & n.64 (1987).

196. Duncan v. Louisiana, 391 U.S. 145, 156 (1968).197. See United States v. Dougherty, 473 F2d 1113, 1136-37 (D.C. Cir. 1972).198. See United States v. Powell, 469 U.S. 57, 65 (1984).199. Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).200. See HARRY KALVEN, JR., & HANs ZEISEL, THE AMERICAN JURY 8-9 (1966).201. See Apprendi v. New Jersey, 530 U.S. 466, 483-84 (2000).202. See Powell, 469 U.S. at 65.203. See Jackson v. Virginia, 443 U.S. 307, 318 (1979).

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examine the transcript and then determine whether the jury was in error. 2°4 Onthe other hand, if a judge mistakenly finds a fact leading to an upwarddeparture, the appellate court will examine the findings using an abuse ofdiscretion standard.2 5 The distinction is simple: when a jury makes a mistakeleading to an upward departure, the appellate court interprets the record; whileif a judge makes the mistake, only his use of discretion is examined.2 °6

The identity of the factual determinant is very important. Both substantiveand procedural protections apply to the allocation of decision-makingauthority.207 The most significant point is that the determination of who findsthe facts has a large effect on the defendant as different standards of reviewapply to decisions made by a judge than by a jury.208 It is not a question ofpreference; it is an issue of justice.20 9

2. Why We Punish Some More than Others

This Comment examined the current state of upward departures under theUnited States Sentencing Guidelines. It then predicted the effect of a recentSupreme Court decision, Apprendi v. New Jersey, on such departureprovisions.

Obviously, guides such as stare decisis play an integral part in our legalsystem. Consequently, the preceding discussions focused on the effectApprendi and other related Supreme Court decisions have on the United StatesSentencing Guidelines. The analysis should not end there. The Apprendi Courtomitted an analysis of whether the rules they created further society through itspunishment objectives." Sentences should be "fair both to the offender and tosociety, and that such fairness is reflected both in the individual case and in thepattern of sentences in all Federal criminal cases."21' An examination of thepurposes of punishment completes the consideration of whether facts leadingto an upward departure are "elements" or "enhancements" and whether factsmust be found by a jury or may be found by a judge.

Despite disagreement among scholars,21 2 Congress explicitly enumerated

204. See id. at 318-19.205. See Koon v. United States, 518 U.S. 81, 97 (1996).206. See Koon, 518 U.S. at 97; Jackson, 443 U.S. at 318-19.207. See supra notes 193-96 and accompanying text.208. See supra notes 203-06 and accompanying text.209. See McCleskey v. Kemp, 481 U.S. 279, 311-12 (1987) (discussing the benefits of

jury discretion).210. See generally Apprendi v. New Jersey, 530 U.S. 466 (2000).211. S. REP. No. 98-225, at 39 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3222.212. See H. L. A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE

PHILOSOPHY OF LAW 1 (1968) ("[A]ny morally tolerable account of this institution [of

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the seven purposes of punishment upon which the Guidelines were to bebased.213 The statute provided that sentences are given in order to emphasizethe severity of the offense;214 encourage obedience of the law;215 provide fairand appropriate punishment; 216 deter future criminal conduct;217 protect societyfrom the defendant's possible future criminal conduct;218 provide the defendantwith some type of education, medical care, or rehabilitative treatment;29 andgive some restitution to the victims. 220 Our confidence in the criminal justicesystem depends on the system's ability to "assure that the offender, the Federalpersonnel charged with implementing the sentence, and the general public arecertain about the sentence and the reasons for it."'22' Basically, the criminaljustice system should not diverge from such policy goals. 22

Unfortunately, since their 1987 inception, the Federal SentencingGuidelines have neither been designed nor applied in a manner aimed atachieving specific purposes of sentencing. 223 It is clear that "goals of avoidingunwarranted disparity and creating a more honest system do not compete withthe desire for a principled foundation for sentences. 224 The Guidelines' explicitfocus on "[r]educing unwarranted disparity [in sentences] is not an invitationfor sentences whose aims cannot be stated. 225 In light of these considerations,the following discussion of the purposes of punishment, with reference toupward departure law and the facts from above, is quite significant.

a. The Purposes of Punishment

It has been argued that there are two ultimate, yet incompatible purposesof punishment: retribution and deterrence.226 In fact, "[b]ecause no single

criminal punishment] must exhibit it as a compromise between distinct and partly conflictingprinciples.").

213. See 18 U.S.C. § 3553(a) (2000).214. 18 U.S.C. § 3553(a)(2)(A).215. Id.216. Id.217. 18 U.S.C. § 3553(a)(2)(B).218. 18 U.S.C. § 3553(a)(2)(C).219. 18 U.S.C. § 3553(a)(2)(D).220. 18 U.S.C. § 3553(a)(7).221. S. REP. No. 98-225, at 39 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3222.222. See id.223. Marc Miller, Purposes at Sentencing, 66 S. CALL. REv. 413, 419 (1992).224. Id. at 423.225. Id.226. HERBERT L. PACKER, THE LIMrrs OF THE CRIMINAL SANCTION 36 (1968) (stating

that punishment purposes of retribution and deterrence "are almost universally thought of asbeing incompatible").

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purpose of punishment has reigned supreme, judges historically have beenaccorded extremely broad discretion to select among the purposes ofpunishment while fashioning an appropriate sentence., 227 This is certainly thecase with the Guidelines' upward departures. Retribution holds that the statehas the right "to inflict pain upon a Subject on account of a Crime committedby him." 228 This state right is based upon the fact that criminals are hated, andsuch hatred creates anger, which in turn creates the need for government actionto express and gratify such emotions.229 Punishment is the expression that anact is so outrageous that it moves society to revulsion.23 ° Similarly, punishmentis appropriate because the offender is deserving of it.231

The second punishment purpose, deterrence, is based on the notion thatpeople "calculate" based on the information they possess and theirmotivation.232 Deterrent punishment has three possible preventative effects: itstrengthens moral inhibitions, it stimulates habitual law-abiding conduct, andit deters future criminal behavior.233 A punishment can serve the third deterrenteffect if it exceeds the benefit of the offense and its certainty is compensatedfor by severity. 234 Deterrence is a widely accepted purpose of punishmentdespite its direct conflict with the American ideal that a defendant is onlypunished for the crimes for which he is convicted. The ideal holds that adefendant will not be punished for the crimes for which he was not caught, norcrimes he will commit in the future, nor crimes committed by others.2 35 Yet,deterrence does just that; it designates that society is to deter a potential futurecrime by punishing a particular defendant.236

A third major punishment purpose focuses on the deprivation of liberty and

227. Charles J. Ogletree, Jr., The Death of Discretion? Reflections on the FederalSentencing Guidelines, 101 HARv. L. REv. 1938, 1941 (1988).

228. See IMMANUEL KANT, THE PHILOSOPHY OF LAW 194 (Augustus M. KelleyPublishers 1974) (W. Hastie trans., 1887).

229. See 2 JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND81-82 (London, MacMillan 1883).

230. See Memorandum Submitted by the Rt. Hon. Lord Justice Denning, in ROYALCOMM'N ON CAPITAL PUNISHMENT, MINUTES OF EVIDENCE TAKEN BEFORE THE ROYALCOMMISSION ON CAPITAL PUNISHMENT 207, 207 (1950).

231. See Michael S. Moore, The Moral Worth of Retribution, in RESPONSIBILITY,CHARACTER AND THE EMOTIONS 179, 179 (Ferdinand Schoeman ed., 1987).

232. See JEREMY BENTHAM, Principals of Penal Law, in THE WORKS OF JEREMYBENTHAM 396 (John Bowring ed., 1962).

233. Johs Andenaes, General Prevention - Illusion or Reality?, 43 J. CRIM. L.,CRIMINOLOGY & POLICE SCI. 176, 180 (1952).

234. See JEREMY BENTHAM, THE THEORY OF LEGISLATION 325-26 (C. K. Ogden ed.,1931).

235. See JOHANNES ANDENAES, PUNISHMENT AND DETERRENCE 129 (1974).236. See Andenaes, supra note 233, at 179-80.

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its effect of incapacitation.237 Here, incarceration is a method of crimecontrol. 238 The two incapacitation models are collective and selective.239 Whilethe former sets punishment according to the offender's crime, the latteremphasizes the offender's characteristics.24°

An additional punishment goal is the reformation or rehabilitation of theoffender.241 Under this goal, punishment is calculated to reduce the motivationto re-offend.242 To rehabilitate prisoners, some prisons organized thepenitentiary in a military-like fashion to instill discipline and obedience in theprisoners.243 The rehabilitative model notes that society should do what it canto assist those individuals who are more susceptible to committing crimes. 24

b. The Role of the Sentencer as Illustrated by the Applicationof the Conclusions of this Comment to the

Previously-Mentioned Fact Pattern

Once the sentencer notes the purposes of punishment, it must recognizethat there are circumstances in which a punishment should not be given.245 Ingeneral, punishment should not be assessed where it is inefficient, unprofitable,or needless.246 The sentencer should remember that there are a variety ofpunishments. The standard punishments in contemporary American societyconsist of the deprivation of goods and services,247 heterosexualrelationships, 24

1 security,249 and liberty.21° In addition, when the sentencer

237. See Jacqueline Cohen, Incapacitation as a Strategy for Crime Control:Possibilities and Pitfalls, in 5 CRIME AND JUSTICE: AN ANNUAL REvIEW OF RESEARCH 1, 2(Michael Tonry & Norval Morris eds., 1983).

238. Id.239. Id. at 4.240. Id.241. See Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence:

The Use and Abuse of Child Maltreatment, 53 HASTINGS L.J. 1, 20 (2001).242. See Brandon C. Welsh & David P. Farrington, Monetary Costs and Benefits of

Crime Prevention Programs, 27 CRIME & JUST. 305, 339-40 (2000).243. See DAVID J. ROTHMAN, THE DISCOVERY OF THE ASYLUM 104-07 (1971).244. See Leon Radzinowicz & J.W. Cecil Turner, A Study on Punishment: Introductory

Essay, 21 CANADIAN B. REv. 91, 97-98 (1943).245. See JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND

LEGISLATION 164 (J. H. Bums & H. L. A. Hart eds., 1996).246. See id. at 160-64.247. See GRESHAM M. SYKES, THE SOCIETY OF CAPTIVES 67 (1958).248. See id. at 70-71.249. See id. at 76-77.250. See id. at 65.

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considers departure, it should focus on the fact that the reasons should beconsistent with the purposes of punishment.25'

With this stated, this Comment will apply the current United StatesSentencing Guidelines' departure provisions, the probable post-Apprendideparture law, and the socially optimal formation of law to the aforementionedfact pattern. The facts are as follows: A Caucasian man was accused of firinga rifle at the home of an African-American neighbor.252 He pleaded guilty tosecond- and third-degree crimes.253 After considering the purposes ofpunishment, the jurisdiction established the appropriate sentence.254

For the sentencer to depart upward, it must determine that the purposes ofpunishment are better achieved by a longer sentence. 255 The only reasonsoffered for an extended sentence were raised at the sentence hearing, althoughthe defendant and a police officer presented conflicting testimony.256 Theofficer asserted that the shooting was racially motivated, while the defendantclaimed that it was drug-induced. 257 A psychologist corroborated thedefendant's story.21

8 Nonetheless, the judge gave the defendant an extendedsentence because the judge felt the crime was racially motivated.259

If this case were prosecuted in federal court, then section 5K2.0 of themodern Federal Sentencing Guidelines would allow the judge to depart for a

260 thracially motivated crime. On the other hand, an Apprendi challenge willinvalidate section 5K2.0.261 In such a case, the state statute authorizing adeparture would be an increased offense level due to the racially motivatedspecific offense characteristic. 262 However, such an authorization would be ablatant circumvention of the prohibition against judicial fact-finding to supportdeparture.263 In sum, under the current guidelines, the departure would be valid.

251. See Douglas A. Berman, Balanced and Purposeful Departures: Fixing aJurisprudence that Undermines the Federal Sentencing Guidelines, 76 NOTRE DAME L. REv.21, 23 (2000).

252. See State v. Apprendi, 698 A.2d 1265, 1266 (N.J. Super. Ct. App. Div. 1997),aff'd, 731 A.2d 485 (N.J. 1999), rev'd, 530 U.S. 466 (2000).

253. See id.254. Id. at 1267.255. See United States v. R.L.C., 503 U.S. 291, 315-16 (1992) (O'Connor, J.,

dissenting).256. See Apprendi, 698 A.2d at 1267.257. Id.258. Id.259. Id.260. See supra notes 68-72 and accompanying text.261. See supra Part Il.A.262. See Apprendi, 698 A.2d at 1267.263. See Koon v. United States, 518 U.S. 81, 109 (1996).

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However, once the Court hears an Apprendi challenge, the jury would have tofind that the shooter was motivated by racial animus beyond a reasonabledoubt.

c. The Purposes of Punishment as Illustrated by the Applicationof the Conclusions of this Comment to the

Previously Mentioned Fact Pattern

Finally, using the same fact pattern, we can sketch the analysis using thepurposes of punishment. The jurisdiction examined the purposes of retribution,deterrence, incapacitation, and rehabilitation when it adopted the sentencingguidelines.2 64 Because the jurisdiction adopted the Guidelines, a departure isappropriate only if the case clearly requires a revaluation of the sentence incomparison with the purposes of punishment.265

Nothing in the fact pattern indicates that the legislature did not account forthe purposes of punishment in the creation of the sentencing range.266 In fact,the legislature created higher-degree offenses to account for the possibility ofan act with greater culpability.267 If the purposes of punishment were whollyacknowledged in the sentence range for the crime, any departure would beinappropriate. 268 Generally, the only time a departure is appropriate is when thepurposes of punishment are not entirely satisfied by the guidelinepunishment. 269 The jury must determine whether the racial motivation wasaccounted for in the sentencing range, while the judge will veto if the fact isoverly prejudicial.27°

3. Pomp and Consequence

No matter how just the rule, it will affect the quantity of departures. A rulethat empowers juries to make most factual determinations concerning upwarddepartures will have a discouraging effect on the quantity of departures.2 71

264. See supra Part II.B.2.265. See Miller v. Florida, 482 U.S. 423, 435 (1987).266. See supra Part 1I.B.2.267. See generally Ashley A. Halfman, Note, Giving Offenders What They Deserve:

Amendments to Federal Guidelines Section 2G2.2, Addressing Child PornographyDistribution, 36 GA. L. REv. 219, 221-22 (2001).

268. See generally Koon, 518 U.S. at 109.

269. See Miller, 482 U.S. at 435.270. Compare U.S. SENTENCING GUIDELINES MANUAL § 3Al.1 (2001), with

Almendarez-Torres v. United States, 523 U.S. 224, 269 (1998).271. See Jeffrey Standen, Plea Bargaining in the Shadow of the Guidelines, CAL. L.

REV. 1471, 1517 (1993).

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Among the reasons for this result are the rules of procedure that enable juriesto ignore the law and, on some occasions, even the facts.272 The morecompelling reason, however, is that the standard of review for jurydeterminations rests on whether the record could reasonably support a findingof guilt, while the standard for judicial sentencing is abuse of discretion. 3 Thelower standard for jury determinations will lead more appellate courts tooverrule jury departures.274 Thus, juries will depart less often than judges.

If the departure rule is changed, its use by trial courts will certainly beaffected.275 For example, "research revealed a general pattern of significant,albeit limited, relationships between a circuit court's appellate jurisprudenceand the actual departure behavior of district judges., 276 This behavior-alteringresult must be considered during the criticism of any rule. When an appellatecourt makes a departure decision, the behavior of the trial courts typicallychanges accordingly.277 Therefore, to identify the optimal departure rule, theconsequences of each potential rule must be addressed.

Administrative costs are an obvious and significant consequence of anychange in the departure system. 278 The first step is to determine the effect ofincreasing or decreasing the quantities of departures. An increase will decreasethe amount of detail needed in the Guidelines.279 It will also complicate andextend litigation.28° Administrative costs will increase if the costs of heightenedlitigation outweigh the costs of increasing the detail of the Guidelines. Withsuch drastic results, society may prefer the departure rule that decreases thenumber of departures.

Another consequence of adopting a departure rule is that the limited partywill be deterred from complying with the restriction. If the judge has complete

272. See id.; see also Andrew J. Fuchs, Note, The Effect of Apprendi v. New Jersey onthe Federal Sentencing Guidelines: Blurring the Distinction Between Sentencing Factors andElements of a Crime, 69 FORDHAM L. REv. 1399, 1436 (2001).

273. Compare United States v. Hannah, 268 F.3d 937, 940 (10th Cir. 2001), withJackson v. Virginia, 443 U.S. 307, 318-19 (1979).

274. See generally Bruce M. Selya & Matthew R. Kipp, An Examination of EmergingDeparture Jurisprudence Under the Federal Sentencing Guidelines, 67 NOTRE DAMEL. REV.1, 18-20 (1991) (discussing the standards of appellate review by reviewing federal appellatecourt cases).

275. See Michael S. Gelacak et al., Departures Under the Federal SentencingGuidelines: An Empirical and Jurisprudential Analysis, 81 MINN. L. REv. 299, 359 (1996).

276. Id. at 358.277. Id. at 359.278. See generally Apprendi v. New Jersey, 530 U.S. 466, 557 (2000) (Breyer, J.,

dissenting).279. See Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises

upon Which They Rest, 17 HOFSTRA L. REv. 1, 13-14 (1988).280. See The Civil Justice Reform Act of 1990: Final Report, 175 F.R.D. 62, 89 (1997).

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departure discretion, a jury may not comply by invoking its rights to nullify. 281

Conversely, if the jury has departure authority, judges will be encouraged notto comply.

282

From a different perspective, as the constraints on sentencing judgesincrease, the balance of power between judges and prosecutors changes.283 Adeterminative sentencing system with limited judicial departures will allowprosecutors to have disproportionate control of the trial and sentencingdeterminations. 284 However, the solution is not to increase the discretion of thesentencing judge. Instead, the solution lies in better statutes,285 betterguidelines,286 and real offense sentencing.287

As is indicated below, the Commission intended the Guidelines to have apositive effect on plea agreements:

First, the guidelines will provide both prosecutors and defense attorneyswith a definite expectation of the sentence that would be imposed after trial.This should make negotiations more certain and realistic. Second, theguidelines will provide a norm to which judges will refer in decidingwhether, given all the relevant factors, a plea agreement should beaccepted. This should produce greater uniformity in judicial decision-making. Third, because the written plea agreement must set forth reason(s)justifying the agreement, the entire plea negotiation practice will be moreopen for public scrutiny, which will provide greatly increasedaccountability. This also should reduce the amount of unwarranted disparitythat is attributable to plea agreements. 288

Accordingly, the procedure for plea agreements are detailed in theGuidelines. 289 As departures become more commonplace, the plea system isundermined. 290 All three goals of plea agreements are less efficient when a

281. See Fuchs, supra note 272, at 1436.282. See Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable

Limits on the Discretion of Sentencers, 101 YALE L.J. 1681, 1726 (1992) (arguing that theGuideline system and the narrow departure authority encourages "informal noncompliance"by trial judges).

283. Standen, supra note 271, at 1505.284. See id. at 1517.285. See id. at 1519.286. See id. at 1521-23.287. See id. at 1528.288. U.S. SENTENCING COMM'N, SUPPLEMENTARY REPORT ON THE INITIAL SENTENCING

GUIDELINES AND POLICY STATEMENTS 49-50 (1987) [hereinafter SUPPLEMENTARY REPORT].289. See U.S. SENTENCING GUIDELINES MANUAL §§ 6B1.1-.4 (2000).290. See Ahmed E. Taha, The Equilibrium Effect of Legal Rule Changes: Are the

Federal Sentencing Guidelines Being Circumvented?, 21 INT'L REv. L. & ECON. 251, 251-52(2001).

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judge can assign a sentence to an offender greater than that prescribed in theGuidelines. 91

The current Guidelines departure provisions grant judges greatdiscretion. 92 If a more restrictive approach to departures is adopted (e.g. a jurymust find facts leading to the departure beyond a reasonable doubt), the juryand the prosecutor will have heightened discretion. 93 Such a shift isappropriate because the prosecutor, who has the executive responsibility toenforce the laws, is eventually accountable to the people. 94 In addition, juriesare a microcosm of the people. Thus, the will of the people will presumably befulfilled more often.

Additionally, both the jury and the judge will protect defendants fromoverzealous prosecutors. 95 Juries will do so through jury nullification, whilejudges will maintain authority to reject any unfair plea agreement. 96

Furthermore, since the judge will still make the final decision, the judge retainsthe power to sentence within the scripted guideline despite the jury's preferencefor departure.2 97 This compromise guarantees the essence of our checks andbalances form of government as translated to a criminal proceeding.

The final consideration can be generally termed "political realities." Theidentity of the entity making departure determinations will effect the behaviorof judges, the Commission, politicians, and voters.

Federal court judges who once made such sentences may desire to beappointed to a higher bench. The nomination and confirmation processesrequired by our constitutional system makes political leverage a significantfactor in such appointments. In addition, a desire to avoid the overturning oftheir decisions may lead to judges succumbing to tangential pressures.

Politics influence the work of the Commission through the congressionalreview of guidelines and amendment of sentencing statutes.298 It is noted that"[t]he ability of the Commission to keep sight of empirical knowledge in themidst of intense philosophical and political conflict is only now being

291. See generally SUPPLEMENTARY REPORT, supra note 288, at 49-50.292. United States v. Lawton, 193 F.3d 1087, 1090 (9th Cir. 1999).293. See Standen, supra note 271, at 1517.294. See generally Angela J. Davis, The American Prosecutor: Independence, Power,

and the Threat of Tyranny, 86 IOWA L. REv. 393, 439 (2001).295. See infra notes 305-06.296. Compare United States v. Dougherty, 473 F.2d 1113, 1136-37 (D.C. Cir. 1972),

with Douglas A. Berman, A Common Law for This Age of Federal Sentencing: TheOpportunity and Need for Judicial Lawmaking, 11 STAN. L. & POL'Y REV. 93, 103 (1999).

297. See generally Halfman, supra note 267, at 222.298. Ronald F. Wright, Sentencers, Bureaucrats, and the Administrative Law

Perspective on the Federal Sentencing Commission, 79 CAL. L. REv. 3, 74 (1991).

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tested., 299 As an example, the current Commission is faced with the highlypolitical issue of sentencing guidelines for convicted corporations. 3

00 Thisdecision will have clear political influence because it will not be based on thepractices of federal judges and it will impact corporate defendants who are wellfinanced, well organized, and very able to exert political pressures. °1 Thismost obvious example of political influence on the Commission shows that itis far from insulted in its decision-making processes.

If the Supreme Court embraces any particular departure rule, there aremany possible congressional responses. If upward departures are judiciallyauthorized, maximum penalties will be decreased. However, legislators will notbe likely to support such a decrease because it will not help them get reelected.The more likely scenario includes the public perception that upward departuresare rare. In this case, legislators would be encouraged to increase the overallpenalties in order to ensure appropriate punishment to the worst offenders. Thepower of the public choice reinforces that the legislature will support suchaction.

3°2

This situation is exacerbated by the policy that "the maximum of the rangeestablished for such a term shall not exceed the minimum of that range by morethan the greater of 25 percent or 6 months, except that, if the minimum termof the range is 30 years or more, the maximum may be life imprisonment. 3 °3

Thus, if departures are rare, the 25 percent rule prohibits legislatures fromgranting the discretion to assign appropriate punishment. The 25 percent rulealso "creates problems for the Commission in drafting guidelines calling forshort terms of imprisonment" because "the 25% rule would result in such aproliferation of guideline ranges that it would be virtually impossible to drawenough meaningful distinctions to justify all of the guideline ranges., 30" As aresult, longer sentences will be encouraged. However, President Reagandisagreed with such a prediction. As seen below, he found the 25 percent rulean inappropriate restriction on judicial discretion:

The purpose of the Sentencing Reform Act, which I submitted to theCongress as part of the Comprehensive Crime Control Act of 1983, was toestablish a determinate sentencing system with narrow sentencing rangesfor criminal offenses. The range of up to six months provided in this bill isfar in excess of what we visualized in 1983 and, if implemented by the

299. Id. at 16.300. See id. at 16 n.62.301. See id.302. See Andrew C. Geddis, Democratic Visions and Third-Party Independent

Expenditures: A Comparative View, 9 TUL. J. INT'L & COMP. L. 5, 22 (2001).303. 28 U.S.C. § 994(b) (1994).304. H.R. REP. No. 99-614, at 5 (1986).

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Sentencing Commission, would restore an undue measure of discretion tojudges that could threaten to undermine the core purpose of the SentencingReform Act to establish fairness and certainty in sentencing by confiningjudicial discretion within a relatively narrow range. 305

The remaining party to be considered is the jury. The political realityconsideration has lesser importance for juries than for the other parties. Otherthan desires to see that justice is served, including the fear freeing a criminalor punishing an innocent person, juries have nothing vested in sentencing. Yet,juries constitute the sole chance for the purest determination of whetherdeparture is appropriate. Therefore, upward departures should only be basedon facts found by a jury beyond a reasonable doubt.

The Thomas approach to departure fact-finding may concern those whobelieve that any reduction in judicial discretion will lead to legislated sentenceinflation. This is less of a concern if the current system for establishingsentencing guidelines is continued. Federal judges are appointed and, assumingthere is no flagrant behavior misconduct, serve life tenure.3° To pass aparticular guideline, they debate the virtues of longer and shorter sentenceswithout election pressures. Additionally, the suggestion of eliminating upwarddepartures is not on the table. Suggested is merely the jury determination offacts leading to departures.

1Il. AND IN THE END...

Our fair system requires that juries find all the facts upon which thedeparture rests beyond a reasonable doubt.3 °7 Anything less is contrary tojustice in an area of law which most depends on just results.

However, no matter which theory of sentencing enhancement is adopted,the same problem arises. Under current law, "[t]he prosecutor's burden ofpersuasion at trial is proof beyond a reasonable doubt, while at sentencing thejudge decides according to the preponderance of the evidence. Evidence thatfails to satisfy the former standard may suffice under the latter.' '30 8 Thisinconsistency is a jurisprudential abomination because its combination with thecurrent preference for determinate sentencing leads to the unwarranted over-importance of labels such as "elements of a crime" and "sentencing factors."

The Supreme Court sought to define these terms in Apprendi v. New

305. StatementbyPresident Reagan upon Signing H.R. 4801, 1986 U.S.C.C.A.N. 1770,1770 (July 14, 1986).

306. U.S. CONST. art. II, § 1.307. Apprendi v. New Jersey, 530 U.S. 466, 476-77 (2000).308. United States v. Ruffin, 997 F.2d 343, 345 (7th Cir. 1993).

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Jersey. It resulted in a five-four decision that ignores its own precedent,abandons general notions of fairness, and dismisses the purposes ofpunishment. °9 When the Court reviews its decision as it applies to upwarddepartures under the United States Sentencing Guidelines, it must recognize theprecedential corner in which it has placed itself and base its determination onsociety's needs rather than mere judicial egotism.

309. See supra Part II.A.2.

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