Sunday, October 03, 2010

Punishment and the Constitution in 2020: Luck or Law? The (Uneasy) Constitutional Case Against Indeterminate Sentencing

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Dan Markel

Nearly forty years ago, Judge Marvin Frankel famously spotlighted attention on the uncabined discretion available to judges in sentencing matters, writing that "[t]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law." At the time, such "unchecked and sweeping" powers belonged not only to federal judges but also state judges who similarly operated with little structure or appellate review to guide sentencing choices. As we all know now, Frankel’s policy entrepreneurship helped create the conditions for sentencing reform at the federal level and across many states over the subsequent four decades.

What is less well-known, however, is that trial judges in the majority of states in this nation still operate without any meaningful structure or appellate review to guide sentencing choices. Indeterminate sentencing -- by which an offender can face an increase in punishment simply for having a surly demeanor or for having been suspected of charges that were never brought -- is a design that still prevails around the several states. Perhaps less disconcerting (to some) but no less odd (to many), a defendant can receive a reduction in punishment from that which would otherwise be given because the judge knows the defendant goes to church or has done some form of community service in the past.

The striking thing about sentencing discretion is how pervasive it still is: f we were to construct a continuum of sentencing discretion available across American jurisdictions, even the current advisory federal sentencing scheme (where sentences must still be initially calibrated according to the guidelines and subjected to reasonableness review upon appeal) would seem among the most restrictive regimes. Indeed, ever since the Supreme Court decided Booker v. United States and thereby rendered the federal sentencing guidelines "effectively advisory," many state courts have read Booker to lend an imprimatur upon their indeterminate sentencing schemes. Thus, in many jurisdictions, virtually no restraints upon judicial and/or executive discretion exist to ensure that similarly situated offenders convicted of similar criminal conduct will, within the same sovereign jurisdiction, receive punishments that are roughly similar to each other.

When Judge Frankel tried to instigate sentencing reform, it was assumed, especially not long after the Supreme Court in Williams v. New York, that sentencing judges were uniquely capable of devising the "right" sentence. (In fact, the Supreme Court in Booker cited Williams as valid authority for the permissible nature of indeterminate sentencing.) So Judge Frankel’s reaction was one largely developed in policy terms.

My sense is that if the argument against indeterminate sentencing is to proceed, it should also explore the constitutional dimensions associated with such designs. My talk at the "Criminal Justice in 2020" conference will examine the case for, and the implications of, a finding that indeterminate sentencing schemes are in fact impermissible under the federal Constitution. My sense is that when one looks at the history of the Framing Period and selected areas of the Supreme Court’s jurisprudence over the last forty years, the constitutional reasons for restraining judicial discretion become more apparent. (And so, unsurprisingly, Williams has already been gutted in the death penalty context; it is only a matter of time that it will die in the non-capital context too, or so I will argue.) Indeed, if the Court’s retributivist rationale in the recent Panetti v. Quarterman decision is to credited and extended, then there might be even more reason to think Williams can no longer create the same kind of room for sentencing abuse that it has until now. Of course, to the extent the courts are (preternaturally) reluctant to take away the discretion of their brethren, or more reasonably find it hard to legislate interstitially as a matter of institutional competence, then legislators at the federal and state levels might be expected to shoulder their co-equal burden of implementing the Constitution’s commitment to restraining the random, arbitrary, or discriminatory imposition of substantial punishment.

Dan Markel is the D’Alemberte Professor of Law at Florida State University College of Law. He can be reached at markel at

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