The Need To Codify United States v. Booker

Few Supreme Court decisions on criminal law loom as large as United States v. Booker from 2005. In that case, in a pair of 5-4 decisions, the Supreme Court ruled that the United States Sentencing Guidelines, which had been mandatory since their promulgation in 1986, violated the Sixth Amendment, and that the Guidelines were henceforth to be treated by sentencing judges as “merely advisory.” The mandatory Guidelines regime that preceded Booker—which required federal judges to sentence defendants within harsh, narrow ranges—was widely criticized. One survey showed that nearly 70% of federal judges objected to the mandatory Guidelines, and one judge even resigned because of them, writing in an opinion column in The New York Times that he no longer wanted “to be a part of our unjust criminal justice system.” Over the past 17 years since Booker, there has been little cause for concern that Booker’s important reforms would be upended. Until now.

In late March, in response to soon-to-be Justice Ketanji Brown Jackson’s nomination to the Supreme Court and confirmation hearings, Senator Josh Hawley from Missouri introduced the PROTECT Act of 2022. The bill has already been blocked from unanimous consent and has stalled in committee. If passed, however, it would, among other things, make the Sentencing Guidelines mandatory for child pornography cases. In a press release, Senator Hawley asserted that in the original PROTECT Act of 2003, Congress had attempted to “enhance the penalties” for child pornography cases, and that the “PROTECT Act worked” until “the Supreme Court gutted it in 2005” in Booker. Senator Hawley lambasted Booker as “a controversial 5-4 decision” that gave judges the “discretion to impose lenient sentence on child porn offenders.” Senator Hawley’s broadside attack on Booker, and his description of it as a “controversial 5-4 decision,” appears to signal a renewed appetite to challenge Booker despite the past 17 years of stability. Although the bill is unlikely to be taken up in committee soon, Senator Hawley pledged to “continue to seek passage of this Act.” There is also no reason to think that this attack on Booker, whether successful or not, will not be extended in the future to other kinds of cases, beyond those involving child pornography, such as cases involving narcotics or financial frauds.

Booker, despite being settled law for 17 years, may well be more vulnerable to challenge than it seems. Although Senator Hawley described Booker as a “controversial 5-4 decision,” Booker was in fact two separate 5-4 decisions, with only a single justice joining both opinions, leaving the decision even more open to attack. In the first 5-4 decision, the “constitutional” opinion, Justice John Paul Stevens—joined by Justices Antonin Scalia, David Souter, Clarence Thomas, and Ruth Bader Ginsburg—wrote that the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing. In the second 5-4 decision, the “remedial” opinion, Justice Stephen Breyer, joined by Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Anthony Kennedy, and Ginsburg, focused on Section 3553(b)(1) of Title 18, United States Code, which says courts “shall impose” Guidelines sentences for the most part, and found that “this provision must be severed and excised.” The remedial opinion concluded that “the Guidelines system” would become “advisory while maintaining a strong connection between the sentence imposed and the offender’s real conduct.”

Several dissenting opinions criticized the remedial holding. Justice Stevens, joined by Justices Souter and Scalia (in part), argued that Section 3553(b)(1) was constitutional on its face, given that the constitutional opinion’s jury factfinding requirement would “at most apply to a minority of sentences imposed under the Guidelines” and could be addressed in those cases in various ways, including by more specific indictments. Justice Stevens criticized the remedial opinion as an “extraordinary exercise of authority” that “represents a policy choice that Congress has considered and decisively rejected.”

Justice Thomas—the only Booker-era justice who will remain on the Court following Justice Breyer’s retirement this summer—wrote a separate opinion dissenting from Justice Breyer’s remedial holding. Justice Thomas explained that “many applications of the Guidelines are constitutional: The defendant may admit the necessary facts; the Government may not seek enhancements beyond the offense level supported by the jury’s verdict; the judge may find facts supporting an enhancement but (taking advantage of the overlap in Guidelines ranges) sentence the defendant within the jury-authorized range; or the jury may find the necessary facts.” As a result, Justice Thomas would have found Section 3553(b)(1) unconstitutional only as applied to Booker himself, leaving the mandatory Guidelines system intact at least in those cases that do not involve any judicial factfinding.

It is not difficult to imagine the narrow and formal positions of Justices Thomas, Stevens, Scalia, and Souter commanding a majority of today’s Supreme Court over the pragmatic remedial opinion joined by Justices Breyer, O’Connor, Kennedy, and Ginsburg, as well as Chief Justice Rehnquist. Although Booker is settled law, the recent leaked opinion in Dobbs v. Jackson Women’s Health Organization shows the Court’s apparent willingness to overturn past decisions of substantially less recent vintage than Booker, and that commanded larger majorities than the Booker remedial opinion.

It is also not difficult to imagine a prosecutor taking the position in a run-of-the-mill case involving narcotics offenses, for example, where judicial factfinding is unnecessary—perhaps the amount of drugs was found by a jury or admitted in a plea—taking the position that a Guidelines sentence is mandatory, notwithstanding Booker, because Section 3553(b)(1), even today, still says that a court “shall impose” a Guidelines sentence.

Addressing Senator Hawley’s PROTECT Act gambit, a recent Filter Magazine article said that while “decarceration advocates may have felt blasé about Booker”—because “even with it, the federal justice system is way too harsh”—“we should also not take Booker for granted.” Taking Booker for granted could have serious consequences. Over the 17 years since Booker, as I have written about before, federal judges have more often used the authority granted by Booker and imposed below-Guidelines sentences in an increasing number of cases. Most recently, in fiscal year 2021, based on the U.S. Sentencing Commission’s statistics, there were a total of 57,041 federal criminal cases, and judges imposed Guidelines sentences in just 42.8% of cases. Judges imposed above-Guidelines sentences in a small fraction of cases (~2.6%), and below-Guidelines sentences in the remaining ~40%. Although some of the below-Guidelines sentences were due to Guidelines-based departures (e.g., Section 5K1.1, applicable upon a government motion to defendants who cooperate with prosecutors), a full 20.4% of the below-Guidelines sentences were simple downward variances in the absence of any government motion. Considering that thousands of defendants benefited from Booker in just the past fiscal year, a change in federal sentencing law would be a seismic event.

The Booker remedial opinion said explicitly that it did not expect to be the last word on federal sentencing. Justice Breyer wrote:

Ours, of course, is not the last word: The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.

Despite Justice Breyer’s invitation, Congress has not taken up the baton. In a recent article, Professor Steven L. Chanenson highlighted this point, writing that “one remarkable aspect of Booker is that it still controls federal sentencing a decade and a half later,” and that “Congress has chosen to largely leave the system as the Court refashioned it.”

Codifying Booker now would be a straightforward exercise: Justice Breyer’s remedial opinion “severed and excised” Sections 3553(b)(1) and 3742(e) of Title 18, which made the Guidelines mandatory and set the standard for appellate review, leaving the Guidelines “effectively advisory.” To the extent Congress approves of federal sentencing as the Court refashioned it, it may well be time to “sever and excise” Sections 3553(b)(1) and 3742(e) for good.

Alexander Levine, an associate at the firm, assisted in the preparation of this blog post.

To read more from Brian A. Jacobs, please visit www.maglaw.com.