New Article Spotlight: Susan Klein of Texas

CrimProf Susan Klein of Texas has posted on SSRN The Return of Federal Judicial Discretion in Criminal Sentencing from a Valpo symposium entitled The Shifting Powers in the Federal Courts.  Here's the abstract:

Federal judicial discretion in criminal sentencing has come full circle over the last 200 years. The English practice in colonial times for felony offenses consisted of a determined sentence for every crime, depending upon a finding beyond a reasonable doubt by a jury of all of the essential ingredients of that crime. America, on the other hand, switched to indeterminate sentencing during colonial times, giving state and federal judges the authority to impose any sentence they chose within the very wide penalty range established by the legislature. Each judge was master of her courtroom upon receiving a conviction by jury verdict or guilty plea. She made all of the moral, philosophical, medical, penological, and policy choices surrounding what particular sentence to impose upon a particular offender, and her decision was virtually unreviewable by any higher court.

Judges ceded some of this enormous discretion by the early 1960s, as every state and the federal government permitted a parole board or probation agency to release a defendant after serving the minimum sentence imposed. Judges nonetheless, in the words of Judge Marvin Frankel, possessed discretion that was terrifying and intolerable for a society that professes devotion to the rule of law. This discretion was abruptly and almost completely terminated shortly after Congress enacted the Sentencing Reform Act of 1984, which transferred power over federal criminal sentencing from district judges to the newly created United States Sentencing Commission. Needless to say, many federal trial court judges were not overly fond of this new arrangement. After many false starts, a successful attack was finally launched last term in United States v. Booker and United States v. Fanfan.

In Part I of this article, I will briefly recount the history of American criminal sentencing and describe the line of Sixth Amendment cases leading to Booker. I will offer some educated speculation as to why Justice Ginsburg inexplicably joined both competing majority opinions in Booker, and what the five Justices writing for the remedial majority hoped to gain by their tortured interpretation of the Sentencing Reform Act. I suggest that this five justice block hoped to revive judicial discretion in federal sentencing in the wake of what they considered the rude, disruptive, and unwise coup over criminal sentencing that Congress accomplished via the Sentencing Reform Act of 1984 and the Feeney Amendment of 2002.

In Part II, I will predict the effect Booker will have on federal sentencing. We will see a sharp, perhaps temporary surge of judicial discretion at the trial level, used primarily to decrease the length of sentences, before federal prosecutors regain some (but not all) of their dominance. While there will be a shift of power from prosecutors to the judiciary (at least until Congress supplants Booker by new legislation), the jury will continue to play a minor role. In Part III, I describe Booker's effect on plea bargaining. Though the sustantive terms of bargains will shift in favor of defendants, the overall percentage of guilty pleas will remain high, and the shift of fact-finding responsibility will again flow from the prosecutor to the judge, not to the jury. I conclude with a few thoughts about the likely duration of this new scheme, and what measure would actually be required to expand the jury's role in criminal trials.

To obtain the paper, click here. (more recent version available from author)  [Mark Godsey]