Compromising Liberty: A Structural Critique of the Sentencing Guidelines

This Article contends that the federal sentencing guidelines-whether mandatory or discretionary-violate the constitutional separation of powers by impermissibly interfering with a criminal jury’s constitutional duty to act as a check against government overreaching. This Article posits that the inclusion of the criminal jury in Article III of the Constitution was intended as an inseparable element of the constitutional system of checks and balances. This Article also submits a proposal for restoring the constitutional balance through the creation of a “guideline jury system” within the current guideline structure. The implementation of a guideline jury system would fill the constitutional void created by the current sentencing regime without destroying its underlying benefits. By making the jury a larger part of the guideline structure, the sentencing guidelines would no longer violate the separation of powers and the criminal jury would be reinstated as a viable check against government overreaching.

In Part I, this Article examines the Supreme Court’s recent decision in United States v. Booker, specifically how the Court lost an opportunity to restore the jury to its rightful place in our tripartite system of government. By pronouncing the sentencing guidelines discretionary instead of mandatory, the Court simply transferred unchecked power from the hands of the prosecutor to the hands of the federal bench. In Part II, this Article illustrates how the sentencing guidelines interfere with the jury’s constitutional role by systematically discouraging a criminal defendant from asserting her right to a jury trial. While most case law and guideline critiques focus on the sentencing factors that increase a criminal defendant’s sentence, this Article focuses on the guideline mechanisms that decrease the sentence. Criminal defendants are routinely waiving their right to a jury trial based on these incentives. In Part III, this Article discusses the Supreme Court’s decision in Patton v. United States where the Court made the unsupported declaration that Article III and the Sixth Amendment were to be read in pari materia. This Article contends that the Framers included the jury in Article III as a structural check against untrustworthy federal judges and overreaching by the Legislative and Executive Branches. Finally, in Part T, this Article submits a proposal for restoring the constitutional balance. It contends that the equilibrium can be restored through the creation of a “guideline jury system” within the current guideline structure. By making the jury a larger part of the guideline structure the criminal jury, albeit in a different form, would be reinstated as a meaningful part of the constitutional system of checks and balances.