Note: Toward a Robust Separation of Powers: Recapturing the Judiciary's Role at Sentencing

By Hans H. Grong. Full text here.

Twenty years ago, Congress fundamentally changed the procedure for sentencing criminal defendants in the federal system by creating the United States Sentencing Commission to promulgate the Federal Sentencing Guidelines. The Guidelines were an attempt to increase transparency and decrease disparities in criminal sentences. Unfortunately, as the Supreme Court recognized in United States v. Booker, the Guidelines were also unconstitutional. Over the last decade, the federal judiciary has struggled to find the proper role for the Guidelines within the confines of the Constitution. This Note argues that the struggle is a result of the Supreme Court’s failure to recognize the structural violation inherent in the Guidelines. The focus of the Court’s analysis in sentencing cases has been the individual rights provisions of the Due Process Clause and the Sixth Amendment. The Court’s individual rights analysis has intensified the Guidelines’ corollary constitutional problem—the separation of powers.

This Note begins with an overview of the social, political, and judicial history of the Federal Sentencing Guidelines. It then analyzes the Court’s methodology and reasoning and concludes that the Court has turned a blind eye to the separation of powers problem that the Guidelines present. Next, it describes why the structural concern ought to be an essential component in the Court’s Guidelines jurisprudence. Finally, it discusses the remedies available and concludes that only two options resolve both the individual rights and separation of powers problems arising from the Guidelines. This Note argues that, given the constitutional problems, the Court must invalidate the Guidelines and explain the acceptable alternative, while leaving the final policy decision up to Congress.