The search for equality in criminal sentencing

Supreme Court Review

Volumn 2002, Issue , 2002, Pages 223-269

  Klein, Susan R ^a   Steiker, Jordan M ^a  

^a NONE

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EID: 0347067947     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.2002.3109719     Document Type: Review

References (260)

1. 530 US 466 (2000) (Stevens, Scalia, Souter, Thomas, and Ginsburg, JJ, writing for the majority; Thomas and Scalia, separately concurring; and Rehnquist, CJ, O'Connor, Kennedy, and Breyer, JJ, dissenting).
2. 536 US 545 (2002) (Kennedy, O'Connor, Scalia, JJ, Rehnquist, CJ, writing for the plurality; Breyer, J, concurring; and Thomas, Stevens, Souter, and Ginsburg, JJ, dissenting).
3. 536 US 584 (2002) (Ginsburg, Scalia, Kennedy, Souter, and Thomas, JJ, writing for the majority, with Breyer, J, concurring, O'Connor, J, Rehnquist, CJ, dissenting).
4. Apprendi, 530 US at 477; J. Archbold, Pleading Evidence in Criminal Cases at 44 (15th ed 1862).
5. See, e.g., Apprendi, 530 US at 477-82.
6. See generally Morton J. Horwitz, The Transformation of American Law 1780-1860 (Harvard, 1977); Nancy J. King and Susan R. Klein, Essential Elements, 54 Vand L Rev 1457, 1506-07 (2001) (noting that decades later England followed the American trend); Deborah Young, Fact-Finding at Federal Sentencing: Why the Guidelines Should Meet the Rule, 79 Cornell L Rev 299 (1994).
7. See generally Morton J. Horwitz, The Transformation of American Law 1780-1860 (Harvard, 1977); Nancy J. King and Susan R. Klein, Essential Elements, 54 Vand L Rev 1457, 1506-07 (2001) (noting that decades later England followed the American trend); Deborah Young, Fact-Finding at Federal Sentencing: Why the Guidelines Should Meet the Rule, 79 Cornell L Rev 299 (1994).
8. See generally Morton J. Horwitz, The Transformation of American Law 1780-1860 (Harvard, 1977); Nancy J. King and Susan R. Klein, Essential Elements, 54 Vand L Rev 1457, 1506-07 (2001) (noting that decades later England followed the American trend); Deborah Young, Fact-Finding at Federal Sentencing: Why the Guidelines Should Meet the Rule, 79 Cornell L Rev 299 (1994).
9. See Adam J. Hirsch, The Rise of the Penitentiary; Prisons and punishment in Early America at 11-12 (Yale, 1992); David Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic at 49 (Little Brown, 1990); Kate Stith and A. Jose Cabranes, Fear of Judging: The Sentencing Guidelines in the Federal Courts at 16 (Chicago, 1998).
10. See Adam J. Hirsch, The Rise of the Penitentiary; Prisons and punishment in Early America at 11-12 (Yale, 1992); David Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic at 49 (Little Brown, 1990); Kate Stith and A. Jose Cabranes, Fear of Judging: The Sentencing Guidelines in the Federal Courts at 16 (Chicago, 1998).
11. See Adam J. Hirsch, The Rise of the Penitentiary; Prisons and punishment in Early America at 11-12 (Yale, 1992); David Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic at 49 (Little Brown, 1990); Kate Stith and A. Jose Cabranes, Fear of Judging: The Sentencing Guidelines in the Federal Courts at 16 (Chicago, 1998).
12. For example, of the 22 crimes enacted by the first Congress in 1790, six were punished by hanging, 13 provided only a maximum sentence, and two set the punishment at four times the value of the property involved. See 1 Stat 112 (1790).
13. Hirsch, The Rise of the Penitentiary at 8-14, 57 (cited in note 7);
14. Lawrence M. Friedman, Crime and Punishment in American History, 77-82 (Basic Books, 1993).
15. See Charles O. Betas, Jury Sentencing, 2 Natl Parole & Probation Assn J 369 (1956); Note, The Admissibility of Character Evidence in Determining Sentence, 9 U Chi L Rev 715 (1942).
16. See Charles O. Betas, Jury Sentencing, 2 Natl Parole & Probation Assn J 369 (1956); Note, The Admissibility of Character Evidence in Determining Sentence, 9 U Chi L Rev 715 (1942).
17. See, e.g., George Fisher, Plea Bargaining's Triumph, 109 Yale L J 857, 1055 (2000); Alan Dershowitz, Indeterminate Confinement: Letting the Therapy Fit the Harm, 123 U Pa L Rev 297 (1974); Comment, Considerations of Punishment by Juries, 17 U Chi L Rev 400, 401 n 6 (1949) (explaining that many states limited jury sentencing in non-capital cases during this period because the "disposition of offenders is a problem for specialists in criminology and psychiatry.").
18. See, e.g., George Fisher, Plea Bargaining's Triumph, 109 Yale L J 857, 1055 (2000); Alan Dershowitz, Indeterminate Confinement: Letting the Therapy Fit the Harm, 123 U Pa L Rev 297 (1974); Comment, Considerations of Punishment by Juries, 17 U Chi L Rev 400, 401 n 6 (1949) (explaining that many states limited jury sentencing in non-capital cases during this period because the "disposition of offenders is a problem for specialists in criminology and psychiatry.").
19. See, e.g., George Fisher, Plea Bargaining's Triumph, 109 Yale L J 857, 1055 (2000); Alan Dershowitz, Indeterminate Confinement: Letting the Therapy Fit the Harm, 123 U Pa L Rev 297 (1974); Comment, Considerations of Punishment by Juries, 17 U Chi L Rev 400, 401 n 6 (1949) (explaining that many states limited jury sentencing in non-capital cases during this period because the "disposition of offenders is a problem for specialists in criminology and psychiatry.").
20. Mistretta v United States, 488 US 361 (1989); Sandra Shane-Dubow et al, Sentencing Reform in the United States: History, Content, and Effect (Government Printing Office, 1985); Francis A. Allen, The Decline of the Rehabilitative Ideal at 3-7 (Yale, 1981).
21. Mistretta v United States, 488 US 361 (1989); Sandra Shane-Dubow et al, Sentencing Reform in the United States: History, Content, and Effect (Government Printing Office, 1985); Francis A. Allen, The Decline of the Rehabilitative Ideal at 3-7 (Yale, 1981).
22. Williams v New York, 337 US 241, 247-48 (1949).
23. See Jay Miller et al, Sentencing Reform at 1-6 (National Center for State Courts, 1981); Allen, The Decline of the Rehabilitative Ideal (cited in note 12); Senate Report No 98-225 (1983) (referring to the "outmoded rehabilitation model" for federal criminal sentencing).
24. See Jay Miller et al, Sentencing Reform at 1-6 (National Center for State Courts, 1981); Allen, The Decline of the Rehabilitative Ideal (cited in note 12); Senate Report No 98-225 (1983) (referring to the "outmoded rehabilitation model" for federal criminal sentencing).
25. See, e.g., Miller et al, Sentencing Reform at 6-12 (cited in note 14); Dale G. Parent, What Did the United States Sentencing Commission Miss? 101 Yale L J 1773 (1992); Douglas Lipton et al, The Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies at 523 (Praeger, 1975); Robert Martinson, What Works - Questions and Answers About Prison Reform, Public Interest 22 (Spring 1974).
26. See, e.g., Miller et al, Sentencing Reform at 6-12 (cited in note 14); Dale G. Parent, What Did the United States Sentencing Commission Miss? 101 Yale L J 1773 (1992); Douglas Lipton et al, The Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies at 523 (Praeger, 1975); Robert Martinson, What Works - Questions and Answers About Prison Reform, Public Interest 22 (Spring 1974).
27. See, e.g., Miller et al, Sentencing Reform at 6-12 (cited in note 14); Dale G. Parent, What Did the United States Sentencing Commission Miss? 101 Yale L J 1773 (1992); Douglas Lipton et al, The Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies at 523 (Praeger, 1975); Robert Martinson, What Works - Questions and Answers About Prison Reform, Public Interest 22 (Spring 1974).
28. See, e.g., Miller et al, Sentencing Reform at 6-12 (cited in note 14); Dale G. Parent, What Did the United States Sentencing Commission Miss? 101 Yale L J 1773 (1992); Douglas Lipton et al, The Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies at 523 (Praeger, 1975); Robert Martinson, What Works - Questions and Answers About Prison Reform, Public Interest 22 (Spring 1974).
29. Roszel C. Thomsen, Sentencing in Income Tax Cases, 26 Fed Probation 10 (1962); Ilene H. Nagel and John L. Hagan, The Sentencing of White-Collar Criminals in Federal Courts: A Socio-Legal Exploration of Disparity, 80 Mich L Rev 1427, 1453 (1982). The Eastern District of New York, which employed sentencing councils, nevertheless displayed disparity both within itself and in relation to the rest of the Circuit. Shari Seidman and Hans Zeisel, Sentencing Councils: A Study of Sentence Disparity and Its Reduction, 43 U Chi L Rev 109, 145 (1975) (finding 30-40 percent disparity between individual judges, and that sentencing councils were able to reduce roughly 10 percent of this disparity).
30. Roszel C. Thomsen, Sentencing in Income Tax Cases, 26 Fed Probation 10 (1962); Ilene H. Nagel and John L. Hagan, The Sentencing of White-Collar Criminals in Federal Courts: A Socio-Legal Exploration of Disparity, 80 Mich L Rev 1427, 1453 (1982). The Eastern District of New York, which employed sentencing councils, nevertheless displayed disparity both within itself and in relation to the rest of the Circuit. Shari Seidman and Hans Zeisel, Sentencing Councils: A Study of Sentence Disparity and Its Reduction, 43 U Chi L Rev 109, 145 (1975) (finding 30-40 percent disparity between individual judges, and that sentencing councils were able to reduce roughly 10 percent of this disparity).
31. Roszel C. Thomsen, Sentencing in Income Tax Cases, 26 Fed Probation 10 (1962); Ilene H. Nagel and John L. Hagan, The Sentencing of White-Collar Criminals in Federal Courts: A Socio-Legal Exploration of Disparity, 80 Mich L Rev 1427, 1453 (1982). The Eastern District of New York, which employed sentencing councils, nevertheless displayed disparity both within itself and in relation to the rest of the Circuit. Shari Seidman and Hans Zeisel, Sentencing Councils: A Study of Sentence Disparity and Its Reduction, 43 U Chi L Rev 109, 145 (1975) (finding 30-40 percent disparity between individual judges, and that sentencing councils were able to reduce roughly 10 percent of this disparity).
32. See, e.g., Beverly Blair Cook, Sentencing Behavior of Federal Judges: Draft Cases 1972, 42 U Cin L Rev 597, 615 (1973); William W. Wilkins, Jr., et al, The Sentencing Reform of 1984: A Bold Approach to the Unwarranted Sentencing Disparity Problem, 2 Crim L F 355, 359-62 (1991).
33. See, e.g., Beverly Blair Cook, Sentencing Behavior of Federal Judges: Draft Cases 1972, 42 U Cin L Rev 597, 615 (1973); William W. Wilkins, Jr., et al, The Sentencing Reform of 1984: A Bold Approach to the Unwarranted Sentencing Disparity Problem, 2 Crim L F 355, 359-62 (1991).
34. Ilene Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J Crim L & Criminol 883, 895-97, and nn 73-84 (1990) (reviewing the empirical studies documenting the sentencing impact of race, gender, and socioeconomic status).
35. Id.
36. Paul J. Hofer, Kevin R. Blackwell, and Barry Rubach, The Effect of the Federal Sentencing Guidelines on Inter-Judge Sentencing Disparity, 90 J Crim L & Criminol 239, 240 (1999); Kevin Clancy et al, Sentence Decisionmaking: The Logic of Sentence Decisions and the Extent and Sources of Sentence Disparity, 72 J Crim L & Criminol 524, 542 (1981) (reporting the results of evaluation by 264 federal judges of sixteen hypothetical cases and finding that only in three cases did a majority of the judges seek the same sentencing goal).
37. Paul J. Hofer, Kevin R. Blackwell, and Barry Rubach, The Effect of the Federal Sentencing Guidelines on Inter-Judge Sentencing Disparity, 90 J Crim L & Criminol 239, 240 (1999); Kevin Clancy et al, Sentence Decisionmaking: The Logic of Sentence Decisions and the Extent and Sources of Sentence Disparity, 72 J Crim L & Criminol 524, 542 (1981) (reporting the results of evaluation by 264 federal judges of sixteen hypothetical cases and finding that only in three cases did a majority of the judges seek the same sentencing goal).
38. William Austin and Thomas A. Williams III, A Survey of Judges' Responses to Simulated Legal Cases: Research Note on Sentencing Disparity, 68 J Crim L & Criminol 306 (1977) (performing analysis similar to that of the Second Circuit study on Virginia state district court judges' hypothetical sentences and finding disparity both in type and magnitude of sentence).
39. Beverly Blair Cook, Sentencing Behavior of Federal Judges: Draft Cases - 1972, 42 U Cin L Rev 597 (1973) (examining all 1,852 draft-dodging convictions and finding sentence disparity based on environment, geography, and individual judge).
40. George William Baab and William Royal Furgeson, Jr., Comment, Texas Sentencing Practices: A Statistical Study, 45 Tex L Rev 471 (1966) (performing a regression analysis on 1,720 state felony sentences from twenty-seven different districts and finding evidence of disparity based not only on gender and individual judge but also on whether pretrial release occurred and whether counsel was appointed or retained).
41. See, e.g., Nagel, 80 J Crim L & Criminol at 895-97 (cited in note 18); Norval Morris, Towards Principled Sentencing, 37 Md L Rev 267, 272-74 (1977) (reviewing historical studies and finding that "the data on unjust sentencing disparities have indeed become quite overwhelming").
42. See, e.g., Nagel, 80 J Crim L & Criminol at 895-97 (cited in note 18); Norval Morris, Towards Principled Sentencing, 37 Md L Rev 267, 272-74 (1977) (reviewing historical studies and finding that "the data on unjust sentencing disparities have indeed become quite overwhelming").
43. See Sandor Frankel, The Sentencing Morass, and a Suggestion for Reform, 3 Crim L Bull 365 (1967) (recounting an early simulation study carried out at a 1961 workshop of the Sixth, Seventh, and Eighth Circuits, which resulted in widely disparate sentences); Anthony Partridge and William B. Eldridge, The Second Circuit Sentencing Study: A Report to the Judges of the Second Circuit (Federal Judicial Center, 1974) (describing study where each judge delivered sentence on approximately twenty real and ten hypothetical presentence reports).
44. See Sandor Frankel, The Sentencing Morass, and a Suggestion for Reform, 3 Crim L Bull 365 (1967) (recounting an early simulation study carried out at a 1961 workshop of the Sixth, Seventh, and Eighth Circuits, which resulted in widely disparate sentences); Anthony Partridge and William B. Eldridge, The Second Circuit Sentencing Study: A Report to the Judges of the Second Circuit (Federal Judicial Center, 1974) (describing study where each judge delivered sentence on approximately twenty real and ten hypothetical presentence reports).
45. Marvin E. Frankel, Criminal Sentences: Law Without Order (Hill & Wang, 1973).
46. Sentencing Reform Act of 1984, Pub L No 98-473, 98 Stat 1987 (1984). The Act garnered the support of Senators Joseph Biden (D-Delaware), Orrin Hatch (R-Utah), and Strom Thurmond (R-SC). See Stith and Cabranes, Fear of Judging at 43-47 (cited in note 7).
47. Sentencing Reform Act of 1984, Pub L No 98-473, 98 Stat 1987 (1984). The Act garnered the support of Senators Joseph Biden (D-Delaware), Orrin Hatch (R-Utah), and Strom Thurmond (R-SC). See Stith and Cabranes, Fear of Judging at 43-47 (cited in note 7).
48. See Richard S. Frase, Is Guided Discretion Sufficient? Overview of State Sentencing Guidelines, 44 SLU L Rev 425, 446 (2000) (listing the seventeen states currently using guidelines systems and the eight states considering the adoption of such guidelines).
49. See Note, Statutory Structures for Sentencing Felons in Prison, 60 Colum L Rev 1134, 1154, and nn 136-37 (1960) (citing to the jury sentencing statutes in thirteen states); Note, Jury Sentencing in Non-Capital Cases: An Idea Whose Time Has Come (Again)? 108 Yale L J 1775 n 65 (1999) (citing to jury sentencing statutes in Arkansas, Kentucky, Missouri, Texas, and Virginia).
50. See Note, Statutory Structures for Sentencing Felons in Prison, 60 Colum L Rev 1134, 1154, and nn 136-37 (1960) (citing to the jury sentencing statutes in thirteen states); Note, Jury Sentencing in Non-Capital Cases: An Idea Whose Time Has Come (Again)? 108 Yale L J 1775 n 65 (1999) (citing to jury sentencing statutes in Arkansas, Kentucky, Missouri, Texas, and Virginia).
51. Robert A. Weninger, Jury Sentencing in Non-Capital Cases: A Case Study of El Paso County, Texas, 45 Wash U J Urban & Contemp L 3, 292 (1994) (regression analysis of random sample of 1,395 felony prosecutions commences between 1974 and 1977, finding greater severity for jury sentencing and greater disparity for almost every offense type); William A. Eckert and Lori E. Exstrand, The Impact of Sentencing Reform: A Comparison of Judge and Jury Sentencing Systems (1975) (unpublished manuscript cited in Note, 108 Yale L J (cited in note 29) (comparing sentences before and after Georgia introduced judge sentencing and finding evidence of systematic jury sentencing disparity for aggravated assault offenses); Brent L. Smith and Edward H. Stevens, Sentence Disparity in the Judge-Jury Sentencing Debate: An Analysis of Robbery Sentences in Six Southern States, 9 Crim J Rev 1, 4 (1984) (finding the standard deviation in all three jury sentencing states was higher than in the three judge sentencing states).
52. Robert A. Weninger, Jury Sentencing in Non-Capital Cases: A Case Study of El Paso County, Texas, 45 Wash U J Urban & Contemp L 3, 292 (1994) (regression analysis of random sample of 1,395 felony prosecutions commences between 1974 and 1977, finding greater severity for jury sentencing and greater disparity for almost every offense type); William A. Eckert and Lori E. Exstrand, The Impact of Sentencing Reform: A Comparison of Judge and Jury Sentencing Systems (1975) (unpublished manuscript cited in Note, 108 Yale L J (cited in note 29) (comparing sentences before and after Georgia introduced judge sentencing and finding evidence of systematic jury sentencing disparity for aggravated assault offenses); Brent L. Smith and Edward H. Stevens, Sentence Disparity in the Judge-Jury Sentencing Debate: An Analysis of Robbery Sentences in Six Southern States, 9 Crim J Rev 1, 4 (1984) (finding the standard deviation in all three jury sentencing states was higher than in the three judge sentencing states).
53. Robert A. Weninger, Jury Sentencing in Non-Capital Cases: A Case Study of El Paso County, Texas, 45 Wash U J Urban & Contemp L 3, 292 (1994) (regression analysis of random sample of 1,395 felony prosecutions commences between 1974 and 1977, finding greater severity for jury sentencing and greater disparity for almost every offense type); William A. Eckert and Lori E. Exstrand, The Impact of Sentencing Reform: A Comparison of Judge and Jury Sentencing Systems (1975) (unpublished manuscript cited in Note, 108 Yale L J (cited in note 29) (comparing sentences before and after Georgia introduced judge sentencing and finding evidence of systematic jury sentencing disparity for aggravated assault offenses); Brent L. Smith and Edward H. Stevens, Sentence Disparity in the Judge-Jury Sentencing Debate: An Analysis of Robbery Sentences in Six Southern States, 9 Crim J Rev 1, 4 (1984) (finding the standard deviation in all three jury sentencing states was higher than in the three judge sentencing states).
54. The Commission has seven voting members appointed by the President with the consent of Congress. At least three must be federal judges, and no more than four members can be from the same political party. 28 USC §§ 991-94 and 18 USC § 3553(a)(2). Congress must disapprove of any amendment offered by the Commission or it becomes law, so long as consistent with other Congressional statutes.
55. Sentencing Reform Act of 1984, 98 Stat 1987 (1984) (cited in note 27). The most recent Guidelines Manual (West, 2002), all 1,626 pages of it, attempts to list every offense and offender characteristic that can play any role in sentencing a defendant. See, e.g., U.S. Sentencing Manual § 2B3.1(b)(2) (use of a weapon during a robbery), § 2B1.1(b) (fraud loss table), § 3A1.1 (hate crime motivation or vulnerable victim), and § 3C1.1 (career offender). Most personal characteristics of the offender unrelated to the offense, such as her age, education and vocational skills, mental and emotional conditions, physical condition (including drug or alcohol dependency or abuse), employment record, community ties, family ties and responsibilities, military service, charitable contributions, and lack of guidance as a youth, are not relevant factors in determining a sentence, and are "discouraged" as a grounds for departure. USSG §§ 5H1.1-5H1.6; 5H1.11-12. Congress has forbidden the Commission from considering the "race, sex, national origin, creed, and socioeconomic status of offenders." 18 USC § 994(d); USSG § 5H1. 10.
56. Sentencing Reform Act of 1984, 98 Stat 1987 (1984) (cited in note 27). The most recent Guidelines Manual (West, 2002), all 1,626 pages of it, attempts to list every offense and offender characteristic that can play any role in sentencing a defendant. See, e.g., U.S. Sentencing Manual § 2B3.1(b)(2) (use of a weapon during a robbery), § 2B1.1(b) (fraud loss table), § 3A1.1 (hate crime motivation or vulnerable victim), and § 3C1.1 (career offender). Most personal characteristics of the offender unrelated to the offense, such as her age, education and vocational skills, mental and emotional conditions, physical condition (including drug or alcohol dependency or abuse), employment record, community ties, family ties and responsibilities, military service, charitable contributions, and lack of guidance as a youth, are not relevant factors in determining a sentence, and are "discouraged" as a grounds for departure. USSG §§ 5H1.1-5H1.6; 5H1.11-12. Congress has forbidden the Commission from considering the "race, sex, national origin, creed, and socioeconomic status of offenders." 18 USC § 994(d); USSG § 5H1. 10.
57. See, e.g., Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L Rev 1 (1988); Paul H. Robinson, Dissent from the United States Sentencing Commission's Proposed Guidelines, 77 J Crim L & Criminol 1112 (1986).
58. See, e.g., Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L Rev 1 (1988); Paul H. Robinson, Dissent from the United States Sentencing Commission's Proposed Guidelines, 77 J Crim L & Criminol 1112 (1986).
59. See, e.g., Richard S. Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty Year Retrospective, 12 Fed Sent Rptr 69, 72 (2000); US Dept of Justice, Bureau of Justice Assistance, National Assessment of Structured Sentencing 14-17 (1996) (detailing sentencing guideline regimes in the states as of February 1994); Andrew Von Hirsch et al, The Sentencing Commission and Its Guidelines at 177-88 (1987) (Appendix, A Summary of the Minnesota, Washington, and Pennsylvania Guidelines).
60. See, e.g., Richard S. Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty Year Retrospective, 12 Fed Sent Rptr 69, 72 (2000); US Dept of Justice, Bureau of Justice Assistance, National Assessment of Structured Sentencing 14-17 (1996) (detailing sentencing guideline regimes in the states as of February 1994); Andrew Von Hirsch et al, The Sentencing Commission and Its Guidelines at 177-88 (1987) (Appendix, A Summary of the Minnesota, Washington, and Pennsylvania Guidelines).
61. See, e.g., Richard S. Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty Year Retrospective, 12 Fed Sent Rptr 69, 72 (2000); US Dept of Justice, Bureau of Justice Assistance, National Assessment of Structured Sentencing 14-17 (1996) (detailing sentencing guideline regimes in the states as of February 1994); Andrew Von Hirsch et al, The Sentencing Commission and Its Guidelines at 177-88 (1987) (Appendix, A Summary of the Minnesota, Washington, and Pennsylvania Guidelines).
62. See, e.g., Richard S. Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty Year Retrospective, 12 Fed Sent Rptr 69, 72 (2000); US Dept of Justice, Bureau of Justice Assistance, National Assessment of Structured Sentencing 14-17 (1996) (detailing sentencing guideline regimes in the states as of February 1994); Andrew Von Hirsch et al, The Sentencing Commission and Its Guidelines at 177-88 (1987) (Appendix, A Summary of the Minnesota, Washington, and Pennsylvania Guidelines).
63. This discretion is limited to a matter of months of prison time, as within each grid the sentence can vary by only 25 percent. However, in those rare instances where an aggravating or mitigating factor was not taken into account by the sentencing commission or was present to a degree not reflected in the manual, the judge may depart upward or downward, subject to appellate review. See U.S. Sentencing Guidelines § 5K2.0 (authorizing departures); U.S. Sentencing Commission, 2000 Sourcebook of Federal Sentencing Statistics 51, Fig G (noting that, in 2000, 17.9 percent of defendants received downward departures for substantial assistance, 17 percent of defendants received downward departures based upon other grounds, and .7 percent of defendants received upward departures); Koon v United States, 518 US 81 (1996) (departures reviewed for abuse of discretion).
64. This discretion is limited to a matter of months of prison time, as within each grid the sentence can vary by only 25 percent. However, in those rare instances where an aggravating or mitigating factor was not taken into account by the sentencing commission or was present to a degree not reflected in the manual, the judge may depart upward or downward, subject to appellate review. See U.S. Sentencing Guidelines § 5K2.0 (authorizing departures); U.S. Sentencing Commission, 2000 Sourcebook of Federal Sentencing Statistics 51, Fig G (noting that, in 2000, 17.9 percent of defendants received downward departures for substantial assistance, 17 percent of defendants received downward departures based upon other grounds, and .7 percent of defendants received upward departures); Koon v United States, 518 US 81 (1996) (departures reviewed for abuse of discretion).
65. See, e.g., Michael Tonry, Sentencing Matters (Oxford, 1996); Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U Chi L Rev 901 (1991); Stephen J. Schulhofer and Ilene H. Nagel, Plea Negotiations Under the Federal Sentencing Guidelines: Guideline Circumvention and Its Dynamics in the Post-Mistretta Period, 91 Nw U L Rev; Erik Luna, Misguided Guidelines: A Critique of Federal Sentencing Policy Analysis No. 458 (Nov 1, 2002); Stith and Cabranes, Fear of Judging (cited in note 7); Federal Judicial Center, The United States Sentencing Guidelines, Result of the Federal Judicial Center's 1996 Survey (Federal Judicial Center, 1997) (1997 survey concluding that more the two-thirds of federal judges wish to scrap the Guidelines).
66. See, e.g., Michael Tonry, Sentencing Matters (Oxford, 1996); Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U Chi L Rev 901 (1991); Stephen J. Schulhofer and Ilene H. Nagel, Plea Negotiations Under the Federal Sentencing Guidelines: Guideline Circumvention and Its Dynamics in the Post-Mistretta Period, 91 Nw U L Rev; Erik Luna, Misguided Guidelines: A Critique of Federal Sentencing Policy Analysis No. 458 (Nov 1, 2002); Stith and Cabranes, Fear of Judging (cited in note 7); Federal Judicial Center, The United States Sentencing Guidelines, Result of the Federal Judicial Center's 1996 Survey (Federal Judicial Center, 1997) (1997 survey concluding that more the two-thirds of federal judges wish to scrap the Guidelines).
67. See, e.g., Michael Tonry, Sentencing Matters (Oxford, 1996); Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U Chi L Rev 901 (1991); Stephen J. Schulhofer and Ilene H. Nagel, Plea Negotiations Under the Federal Sentencing Guidelines: Guideline Circumvention and Its Dynamics in the Post-Mistretta Period, 91 Nw U L Rev; Erik Luna, Misguided Guidelines: A Critique of Federal Sentencing Policy Analysis No. 458 (Nov 1, 2002); Stith and Cabranes, Fear of Judging (cited in note 7); Federal Judicial Center, The United States Sentencing Guidelines, Result of the Federal Judicial Center's 1996 Survey (Federal Judicial Center, 1997) (1997 survey concluding that more the two-thirds of federal judges wish to scrap the Guidelines).
68. See, e.g., Michael Tonry, Sentencing Matters (Oxford, 1996); Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U Chi L Rev 901 (1991); Stephen J. Schulhofer and Ilene H. Nagel, Plea Negotiations Under the Federal Sentencing Guidelines: Guideline Circumvention and Its Dynamics in the Post-Mistretta Period, 91 Nw U L Rev; Erik Luna, Misguided Guidelines: A Critique of Federal Sentencing Policy Analysis No. 458 (Nov 1, 2002); Stith and Cabranes, Fear of Judging (cited in note 7); Federal Judicial Center, The United States Sentencing Guidelines, Result of the Federal Judicial Center's 1996 Survey (Federal Judicial Center, 1997) (1997 survey concluding that more the two-thirds of federal judges wish to scrap the Guidelines).
69. See, e.g., Michael Tonry, Sentencing Matters (Oxford, 1996); Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U Chi L Rev 901 (1991); Stephen J. Schulhofer and Ilene H. Nagel, Plea Negotiations Under the Federal Sentencing Guidelines: Guideline Circumvention and Its Dynamics in the Post-Mistretta Period, 91 Nw U L Rev; Erik Luna, Misguided Guidelines: A Critique of Federal Sentencing Policy Analysis No. 458 (Nov 1, 2002); Stith and Cabranes, Fear of Judging (cited in note 7); Federal Judicial Center, The United States Sentencing Guidelines, Result of the Federal Judicial Center's 1996 Survey (Federal Judicial Center, 1997) (1997 survey concluding that more the two-thirds of federal judges wish to scrap the Guidelines).
70. See, e.g., Michael Tonry, Sentencing Matters (Oxford, 1996); Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U Chi L Rev 901 (1991); Stephen J. Schulhofer and Ilene H. Nagel, Plea Negotiations Under the Federal Sentencing Guidelines: Guideline Circumvention and Its Dynamics in the Post-Mistretta Period, 91 Nw U L Rev; Erik Luna, Misguided Guidelines: A Critique of Federal Sentencing Policy Analysis No. 458 (Nov 1, 2002); Stith and Cabranes, Fear of Judging (cited in note 7); Federal Judicial Center, The United States Sentencing Guidelines, Result of the Federal Judicial Center's 1996 Survey (Federal Judicial Center, 1997) (1997 survey concluding that more the two-thirds of federal judges wish to scrap the Guidelines).
71. See e.g., U.S. Sentencing Commission, Sentencing Guidelines and Policy Statements (1987). The disparity at sentencing must hinge solely on relevant factors such as criminal history and the severity of the offense.
72. See e.g., Hofer et al, 90 J Crim L & Criminol at 239, 243 (cited in note 20) (claiming some success for the guidelines at reducing interjudge disparity); James M. Anderson, Jeffrey R. Kling and Kate Stith, Measuring Interjudge Sentencing Disparity: Before and After the federal Sentencing Guidelines, 42 J L & Econ 271 (1999) ("Our study indicates that the Guidelines [and concomitant statutory minimum sentences] have been successful in reducing interjudge nominal sentencing disparity."); A. Abigail Payne, Does Inter-Judge Disparity Really Matter? An Analysis of the Effects of Sentencing Reforms in Three Federal District Courts, 17 Intl Rev L & Econ 337 (1997) (reviewing drug and embezzlement/fraud/theft cases and finding a reduction of disparity for drug cases post-Guidelines and finding more modest success in some district in reducing embezzlement, fraud, theft disparity); US Sentencing Commission, The Federal Sentencing Guidelines: A Report on the Operation of the Guidelines System and Short-Term Impacts on Disparity in Sentencing, Use of Incarceration, and Prosecution Discretion and Plea Bargaining (1991) (comparing pre- and post-Guidelines sentences for four major offense types and finding that disparity decreased significantly in all categories).
73. See e.g., Hofer et al, 90 J Crim L & Criminol at 239, 243 (cited in note 20) (claiming some success for the guidelines at reducing interjudge disparity); James M. Anderson, Jeffrey R. Kling and Kate Stith, Measuring Interjudge Sentencing Disparity: Before and After the federal Sentencing Guidelines, 42 J L & Econ 271 (1999) ("Our study indicates that the Guidelines [and concomitant statutory minimum sentences] have been successful in reducing interjudge nominal sentencing disparity."); A. Abigail Payne, Does Inter-Judge Disparity Really Matter? An Analysis of the Effects of Sentencing Reforms in Three Federal District Courts, 17 Intl Rev L & Econ 337 (1997) (reviewing drug and embezzlement/fraud/theft cases and finding a reduction of disparity for drug cases post-Guidelines and finding more modest success in some district in reducing embezzlement, fraud, theft disparity); US Sentencing Commission, The Federal Sentencing Guidelines: A Report on the Operation of the Guidelines System and Short-Term Impacts on Disparity in Sentencing, Use of Incarceration, and Prosecution Discretion and Plea Bargaining (1991) (comparing pre- and post-Guidelines sentences for four major offense types and finding that disparity decreased significantly in all categories).
74. See e.g., Hofer et al, 90 J Crim L & Criminol at 239, 243 (cited in note 20) (claiming some success for the guidelines at reducing interjudge disparity); James M. Anderson, Jeffrey R. Kling and Kate Stith, Measuring Interjudge Sentencing Disparity: Before and After the federal Sentencing Guidelines, 42 J L & Econ 271 (1999) ("Our study indicates that the Guidelines [and concomitant statutory minimum sentences] have been successful in reducing interjudge nominal sentencing disparity."); A. Abigail Payne, Does Inter-Judge Disparity Really Matter? An Analysis of the Effects of Sentencing Reforms in Three Federal District Courts, 17 Intl Rev L & Econ 337 (1997) (reviewing drug and embezzlement/fraud/theft cases and finding a reduction of disparity for drug cases post-Guidelines and finding more modest success in some district in reducing embezzlement, fraud, theft disparity); US Sentencing Commission, The Federal Sentencing Guidelines: A Report on the Operation of the Guidelines System and Short-Term Impacts on Disparity in Sentencing, Use of Incarceration, and Prosecution Discretion and Plea Bargaining (1991) (comparing pre- and post-Guidelines sentences for four major offense types and finding that disparity decreased significantly in all categories).
75. See e.g., Hofer et al, 90 J Crim L & Criminol at 239, 243 (cited in note 20) (claiming some success for the guidelines at reducing interjudge disparity); James M. Anderson, Jeffrey R. Kling and Kate Stith, Measuring Interjudge Sentencing Disparity: Before and After the federal Sentencing Guidelines, 42 J L & Econ 271 (1999) ("Our study indicates that the Guidelines [and concomitant statutory minimum sentences] have been successful in reducing interjudge nominal sentencing disparity."); A. Abigail Payne, Does Inter-Judge Disparity Really Matter? An Analysis of the Effects of Sentencing Reforms in Three Federal District Courts, 17 Intl Rev L & Econ 337 (1997) (reviewing drug and embezzlement/fraud/theft cases and finding a reduction of disparity for drug cases post-Guidelines and finding more modest success in some district in reducing embezzlement, fraud, theft disparity); US Sentencing Commission, The Federal Sentencing Guidelines: A Report on the Operation of the Guidelines System and Short-Term Impacts on Disparity in Sentencing, Use of Incarceration, and Prosecution Discretion and Plea Bargaining (1991) (comparing pre- and post-Guidelines sentences for four major offense types and finding that disparity decreased significantly in all categories).
76. See, e.g., Joel Waldfogel, Does Inter-Judge Disparity Justify Empirically Based Sentencing Guidelines 18 Intl Rev L & Econ 293 (1998) (arguing that the reduction of interjudge disparity, while statistically significant, does not justify the loss of proportionality m sentencing); Schulhofer and Nagel, 91 Nw U L Rev at 1284, 1286 (cited in note 36) (finding that the Guidelines have reduced disparity in cases going to trial and in 65-80 percent of cases resolved by plea); Alschuler, 58 U Chi L Rev at 901 (cited in note 36) (admitting that the Guidelines impose uniformity in regard to those factors listed, such as harm but arguing that the Guidelines are faulty because they ignore situational and offender characteristics that reflect culpability and therefore should influence sentences).
77. See, e.g., Joel Waldfogel, Does Inter-Judge Disparity Justify Empirically Based Sentencing Guidelines 18 Intl Rev L & Econ 293 (1998) (arguing that the reduction of interjudge disparity, while statistically significant, does not justify the loss of proportionality m sentencing); Schulhofer and Nagel, 91 Nw U L Rev at 1284, 1286 (cited in note 36) (finding that the Guidelines have reduced disparity in cases going to trial and in 65-80 percent of cases resolved by plea); Alschuler, 58 U Chi L Rev at 901 (cited in note 36) (admitting that the Guidelines impose uniformity in regard to those factors listed, such as harm but arguing that the Guidelines are faulty because they ignore situational and offender characteristics that reflect culpability and therefore should influence sentences).
78. See, e.g., Joel Waldfogel, Does Inter-Judge Disparity Justify Empirically Based Sentencing Guidelines 18 Intl Rev L & Econ 293 (1998) (arguing that the reduction of interjudge disparity, while statistically significant, does not justify the loss of proportionality m sentencing); Schulhofer and Nagel, 91 Nw U L Rev at 1284, 1286 (cited in note 36) (finding that the Guidelines have reduced disparity in cases going to trial and in 65-80 percent of cases resolved by plea); Alschuler, 58 U Chi L Rev at 901 (cited in note 36) (admitting that the Guidelines impose uniformity in regard to those factors listed, such as harm but arguing that the Guidelines are faulty because they ignore situational and offender characteristics that reflect culpability and therefore should influence sentences).
79. State sentencing guidelines in Minnesota have had similar success in limiting disparity. See Hofer et al, 90 J Crim L & Criminol at 262 n 74 (cited in note 20) (collecting studies).
80. See, e.g., Douglas A. Berman, Does Fact Bargaining Undermine the Guidelines? 8 Fed Sent Rptr 299 (1996); Gerald W. Heaney, The Reality of Sentencing Guidelines: No End to Disparity, 28 Am Crim L Rev 161, 194 (1991) (concluding on the basis of anecdotal evidence that "the guidelines have the potential to produce a new breed of sentence disparity hidden from view and controlled primarily by the pressures of the prosecutor's caseload"). But see Judge William Wilkins, Response to Judge Heaney, 28 Am Grim L Rev 795 (1992) (critiquing Judge Heaney's methodology and finding that prosecutors do not control the Guidelines process).
81. See, e.g., Douglas A. Berman, Does Fact Bargaining Undermine the Guidelines? 8 Fed Sent Rptr 299 (1996); Gerald W. Heaney, The Reality of Sentencing Guidelines: No End to Disparity, 28 Am Crim L Rev 161, 194 (1991) (concluding on the basis of anecdotal evidence that "the guidelines have the potential to produce a new breed of sentence disparity hidden from view and controlled primarily by the pressures of the prosecutor's caseload"). But see Judge William Wilkins, Response to Judge Heaney, 28 Am Grim L Rev 795 (1992) (critiquing Judge Heaney's methodology and finding that prosecutors do not control the Guidelines process).
82. See, e.g., Douglas A. Berman, Does Fact Bargaining Undermine the Guidelines? 8 Fed Sent Rptr 299 (1996); Gerald W. Heaney, The Reality of Sentencing Guidelines: No End to Disparity, 28 Am Crim L Rev 161, 194 (1991) (concluding on the basis of anecdotal evidence that "the guidelines have the potential to produce a new breed of sentence disparity hidden from view and controlled primarily by the pressures of the prosecutor's caseload"). But see Judge William Wilkins, Response to Judge Heaney, 28 Am Grim L Rev 795 (1992) (critiquing Judge Heaney's methodology and finding that prosecutors do not control the Guidelines process).
83. See Molly Treadway Johnson and Scott A. Gilbert, The U.S. Sentencing Guidelines: Results of the Federal Judicial Center's 1996 Survey, Report to the Committee on Criminal Law of the Judicial Conference of the United States (Federal Judicial Center, 1997) (reporting that large majorities of district judges and chief probation officers believe that "plea bargains are a source of hidden unwarranted disparity in the Guidelines system"). However, in the only empirical work on disparity in plea situations, Professor Schulhofer and Commissioner Nagel found that Guideline evasion occurred in only 20-35 percent of guilty plea cases (see n 36 above). Our intuition matches that of a former U.S. Attorney who served as chair of the Subcommittee on Sentencing Guidelines of the Attorney General's Advisory Committee, who wrote that prosecutors follow the Guidelines even in plea negotiations "in the vast majority of cases," and that evasion will decrease because the principal offenders were older AUSAs who feel that they know what each case is worth. Joe B. Brown, The Sentencing Guidelines Are Reducing Disparity, 29 Am Crim L Rev 875, 880 (1992).
84. See Molly Treadway Johnson and Scott A. Gilbert, The U.S. Sentencing Guidelines: Results of the Federal Judicial Center's 1996 Survey, Report to the Committee on Criminal Law of the Judicial Conference of the United States (Federal Judicial Center, 1997) (reporting that large majorities of district judges and chief probation officers believe that "plea bargains are a source of hidden unwarranted disparity in the Guidelines system"). However, in the only empirical work on disparity in plea situations, Professor Schulhofer and Commissioner Nagel found that Guideline evasion occurred in only 20-35 percent of guilty plea cases (see n 36 above). Our intuition matches that of a former U.S. Attorney who served as chair of the Subcommittee on Sentencing Guidelines of the Attorney General's Advisory Committee, who wrote that prosecutors follow the Guidelines even in plea negotiations "in the vast majority of cases," and that evasion will decrease because the principal offenders were older AUSAs who feel that they know what each case is worth. Joe B. Brown, The Sentencing Guidelines Are Reducing Disparity, 29 Am Crim L Rev 875, 880 (1992).
85. One of the many Guidelines compromises was between a "real offense" system, where a defendant is sentenced for whatever she actually did, and a "charge offense" system, where a defendant is sentenced only for the crime of conviction or plea. See USSG § 1B1.3; United States v Watts, 519 US 148 (1997) (holding that judge is required to sentence for related uncharged conduct, even if the defendant was acquitted of that conduct by a jury). Information regarding related uncharged conduct is found from reviewing the reports of the federal agents working on the case and a probation department interview with the defendant. Such conduct is difficult to hide from the judge.
86. Reprinted in 6 Fed Sent Rptr 347 (1994). This memorandum was moderated by the 1993 Reno Memorandum, reprinted in 6 Fed Sent Rptr 352 (1994). See also USAM 9- 27.400 (Sept 1997).
87. Reprinted in 6 Fed Sent Rptr 347 (1994). This memorandum was moderated by the 1993 Reno Memorandum, reprinted in 6 Fed Sent Rptr 352 (1994). See also USAM 9-27.400 (Sept 1997).
88. See USSG § 6B1.2 (permitting court to accept plea agreement only if it adequately reflects the seriousness of the actual offense behavior, does not preclude the dismissed conduct from being considered as relevant conduct, or departs from the applicable guidelines range for a justifiable reason); Fed Rules of Crim Proc 11(e)(1)(C) (authorizing judge to reject a binding plea that incorporates a sentencing range contrary to the Guidelines).
89. See USSG § 3E1.1, offering a two- or three-level decrease in based offense level for accepting responsibility for one's criminal conduct. For a defendant with a base offense level of 30, this can translate into a reduction from 97-121 to 70-87 months of imprisonment.
90. See, e.g., Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L J 1097 (2001); Luna, Misguided Guidelines (cited in note 36).
91. See, e.g., Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L J 1097 (2001); Luna, Misguided Guidelines (cited in note 36).
92. See, e.g., Paul D. Borman, The Federal Sentencing Guidelines, 16 Thomas M. Cooley L Rev 4 (1999) (distinguishing the Guidelines from a separate and independent federal sentencing phenomenon - mandatory minimum sentences); U.S. Sentencing Commission, Special Report to the Congress: Mandatory Minimum Penalties and the Federal Criminal Justice System at ii-iv (1991) (report from the U.S. Sentencing Commission to Congress criticizing mandatory minimums as producing unwarranted disparities among offenders and transferring power from judges to prosecutors).
93. See, e.g., Paul D. Borman, The Federal Sentencing Guidelines, 16 Thomas M. Cooley L Rev 4 (1999) (distinguishing the Guidelines from a separate and independent federal sentencing phenomenon - mandatory minimum sentences); U.S. Sentencing Commission, Special Report to the Congress: Mandatory Minimum Penalties and the Federal Criminal Justice System at ii-iv (1991) (report from the U.S. Sentencing Commission to Congress criticizing mandatory minimums as producing unwarranted disparities among offenders and transferring power from judges to prosecutors).
94. See 18 USC § 3553(e); 28 USC § 994(n); and USSG § 5K1.1 (allowing court to depart below guideline range and below statutorily required mandatory minimum sentences upon motion of the government stating that the defendant has provided substantial assistance to the authorities); Wade v United States, 504 US 181 (1992) (holding that court can review prosecutor's refusal to file a substantial-assistance motion only if based upon unconstitutional motive). Nationwide, about 19 percent of federal defendants received such departures in 1998. U.S. Sentencing Commission, 1998 Sourcebook of Federal Sentencing Statistics (Table 26), United States Sentencing Commission website, 〈http://www.ussc.gov/ANNRPT/ 1998/sbtoc98.htm〉.
95. George Fisher, The Balance of Power to Bargain, in Plea Bargaining's Triumph (Stanford, forthcoming 2003) (suggesting that the Federal Sentencing Guidelines have contributed to the decline in jury trials by reducing the availability of judicial leniency).
96. See, e.g., Frank O. Bowman, Departing Is Such Sweet Sorrow: A Year of Judicial Revolt on "Substantial Assistance" Departures Follows a Decade of Prosecutorial Undiscipline, 29 Stetson L Rev 7 (1999) (noting judicial backlash against use of substantial assistance, and predicting that unless the DOJ exercises greater self-discipline, Congress might repeal the provision); Gary T. Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 Cal L Rev 61 (1993).
97. See, e.g., Frank O. Bowman, Departing Is Such Sweet Sorrow: A Year of Judicial Revolt on "Substantial Assistance" Departures Follows a Decade of Prosecutorial Undiscipline, 29 Stetson L Rev 7 (1999) (noting judicial backlash against use of substantial assistance, and predicting that unless the DOJ exercises greater self-discipline, Congress might repeal the provision); Gary T. Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 Cal L Rev 61 (1993).
98. See, e.g., Sara Sun Beale, Procedural Issues Raised by Guideline Sentencing: The Constitutional Significance of Single "Elements of the Offense," 35 Wm & Mary L Rev 147 (1993) (advocating clear and convincing evidence standard of proof for certain sentence enhancements, and suggesting that the defendant be afforded an opportunity to confront and cross-examine witnesses).
99. See Almendarez-Torres v United States, 523 US 224, 248 (1998).
100. See, e.g., David B. Mustard, Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts, 44 J L & Econ 285, 311 (2001) (arguing that a large difference in the length of sentence exists on the basis of race, gender, education, income, and citizenship).
101. Douglas McDonald and Kenneth Carlson have demonstrated that the average-sentence disparity between blacks and whites relies extensively on the 100-1 ratio between crack and powder cocaine. Douglas C. McDonald and Kenneth E. Carlson, Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? 182 (1993); Heaney, 28 Am Crim L Rev (cited in note 41). The Sentencing Commission's two attempts to change the ratio were both, regrettably, rejected by Congress. See Norm Abrams and Sara Sun Beale, Federal Criminal Law 308-10 (West, 3d ed 2000).
102. Douglas McDonald and Kenneth Carlson have demonstrated that the average-sentence disparity between blacks and whites relies extensively on the 100-1 ratio between crack and powder cocaine. Douglas C. McDonald and Kenneth E. Carlson, Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? 182 (1993); Heaney, 28 Am Crim L Rev (cited in note 41). The Sentencing Commission's two attempts to change the ratio were both, regrettably, rejected by Congress. See Norm Abrams and Sara Sun Beale, Federal Criminal Law 308-10 (West, 3d ed 2000).
103. Douglas McDonald and Kenneth Carlson have demonstrated that the average-sentence disparity between blacks and whites relies extensively on the 100-1 ratio between crack and powder cocaine. Douglas C. McDonald and Kenneth E. Carlson, Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? 182 (1993); Heaney, 28 Am Crim L Rev (cited in note 41). The Sentencing Commission's two attempts to change the ratio were both, regrettably, rejected by Congress. See Norm Abrams and Sara Sun Beale, Federal Criminal Law 308-10 (West, 3d ed 2000).
104. See Substantial Assistance: An Empirical yardstick Gauging Equity in Current Federal Policy and Practice (1998), U.S. Sentencing Commission website, 〈http://www.ussc.gov/research.htm〉 (last visited on January 15, 2003) (report by two Commission staff members finding inequities by judges and prosecutors concerning downward departures for substantial assistance; factors such as gender, race, ethnicity, and citizenship were statistically significant in explaining such departures); Mustard, 44 J L & Econ (cited in note 54).
105. See Substantial Assistance: An Empirical yardstick Gauging Equity in Current Federal Policy and Practice (1998), U.S. Sentencing Commission website, 〈http://www.ussc.gov/research.htm〉 (last visited on January 15, 2003) (report by two Commission staff members finding inequities by judges and prosecutors concerning downward departures for substantial assistance; factors such as gender, race, ethnicity, and citizenship were statistically significant in explaining such departures); Mustard, 44 J L & Econ (cited in note 54).
106. 18 USC § 3553(e); 28 USC § 994(n).
107. Stith and Cabranes, Fear of Judging (cited in note 7).
108. See, e.g., Marc Miller, Purposes at Sentencing, 66 S Cal L Rev 413 (1992); Paul Robinson, 41 Crim L Rep 3174 (1987) (resigning from Commission in frustration over perceived failure to develop a coherent sentencing rationale).
109. See, e.g., Marc Miller, Purposes at Sentencing, 66 S Cal L Rev 413 (1992); Paul Robinson, 41 Crim L Rep 3174 (1987) (resigning from Commission in frustration over perceived failure to develop a coherent sentencing rationale).
110. See, e.g., Luna, Misguided Guidelines (cited in note 36).
111. One could do this by voting for representatives who will change the law, or by persuading the judiciary that the punishment is unconstitutional. See, e.g., David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan L Rev 1283 (1995) (suggesting that the crack: powder ratio violates the Equal Protection Clause).
112. Compare Myrna S. Raeder, Gender and Sentencing: Single Moms, Battered Women, and Other Sex-Based Anomalies in the Gender-Free World of the Federal Sentencing Guidelines, 20 Pepperdine L Rev 905 (1993) (arguing that, as a normative matter, the Guidelines should take account of whether felons are single parents), with Ilene H. Nagel and Barry Johnson, The Role of Gender in a Structured Sentencing System: Equal Treatment, Policy Choices, and the Sentencing of Female Offenders Under the United States Sentencing Guidelines, 85 J Crim L & Criminol 181, 207 (1994) (suggesting that the just deserts and crime control principles of the Guidelines outweigh the "exogenous utilitarian concerns" of the impact on children).
113. Compare Myrna S. Raeder, Gender and Sentencing: Single Moms, Battered Women, and Other Sex-Based Anomalies in the Gender-Free World of the Federal Sentencing Guidelines, 20 Pepperdine L Rev 905 (1993) (arguing that, as a normative matter, the Guidelines should take account of whether felons are single parents), with Ilene H. Nagel and Barry Johnson, The Role of Gender in a Structured Sentencing System: Equal Treatment, Policy Choices, and the Sentencing of Female Offenders Under the United States Sentencing Guidelines, 85 J Crim L & Criminol 181, 207 (1994) (suggesting that the just deserts and crime control principles of the Guidelines outweigh the "exogenous utilitarian concerns" of the impact on children).
114. See note 32.
115. See, e.g., Hugo Bedau, The Courts, the Constitution, and Capital
116. See Stuart Banner, The Death Penalty: An American History, 247-66 (Harvard, 2002); Michael Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment (Random House, 1973).
117. See Stuart Banner, The Death Penalty: An American History, 247-66 (Harvard, 2002); Michael Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment (Random House, 1973).
118. See Banner, The Death Penalty at 243-44 (cited in note 65) (discussing concerns about racially discriminatory aspects of the American death penalty system).
119. 402 US 183 (1971).
120. Id at 204.
121. 408 US 238 (1972).
122. Along with Furman, the Court reviewed three other cases: Jackson v Georgia, Branch v Texas, and Aikens v California. See 403 US 952 (1971) (granting certiorari).
123. Of the forty state statutes in effect at the time of Furman, all but Rhode Island's suffered from the defect of "standardless" discretion and were thus unenforceable in light of the decision. Rhode Island's mandatory death penalty provisions were later effectively struck down when the Court held that the Eighth Amendment requires "individualized" sentencing in capital cases. See Woodson v North Carolina, 428 US 280 (1976) (invalidating nondiscretionary death penalty statute).
124. See, e.g., Furman, 408 US at 291 (Brennan, J, concurring) ("The outstanding characteristic of our present practice of punishing criminals by death is the infrequency with which we resort to it."); id at 309 (Stewart, J, concurring); id at 311 (White, J, concurring).
125. See, e.g., id at 309 (Stewart, J, concurring) ("These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual."); id at 313 (White, J, concurring) ("the death penalty is exacted with great infrequency even for the most atrocious crimes and [ ] there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not").
126. Id at 257 (Douglas, J, concurring) (describing the pre-Furman capital statutes as "pregnant with discrimination" in their operation).
127. Carol S. Steiker and Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv L Rev 355, 365 (1995).
128. See Woodson v North Carolina, 428 US 280 (1976) (invalidating North Carolina's mandatory statute); Roberts v Louisiana, 428 US 325 (1976) (invalidating Louisiana's mandatory statute).
129. See, e.g., Gregg v Georgia, 428 US 153 (1976) (reviewing Georgia's post-Furman approach); Proffitt v Florida, 428 US 242 (1976) (reviewing Florida's post-Furman approach).
130. This was the standard instruction given in Ohio and challenged in Crampton v Ohio, the companion case to McGautha. See McGautha, 402 US at 289 (Brennan, J, dissenting) (quoting State v Caldwell, 135 Ohio St 424, 425, 21 NE2d 343, 344 (1939)).
131. Baugus v State, 141 So2d 264, 266 (Fla), cert denied, 371 US 879 (1962).
132. See Steiker and Steiker, 109 Harv L Rev at 371-403 (cited in note 75).
133. Id.
134. Jordan M. Steiker, The Limits of Legal Language: Decisiomaking in Capital Cases, 94 Mich L Rev 2590, 2624 (1996) (arguing that the effort to achieve consistency across cases "has proven not merely unachievable but counterproductive").
135. Model Penal Code § 210.6(3)(h) (1980).
136. Arave v Creech, 507 US 463, 468 (1993) (sustaining limiting construction by Idaho Supreme Court that the defendant displayed the attitude of a "cold-blooded, pitiless slayer").
137. See note 32 and accompanying text.
138. See Walton v Arizona, 497 US 639, 655 (1990) (upholding use of "especially heinous, cruel or depraved" aggravating factor).
139. See, e.g., Ariz Rev Stat Ann § 13-703(F)(1989) (listing ten aggravating circumstances); Colo Rev Stat § 16-11-103(5) (Supp 1994) (listing thirteen aggravating circumstances); Fla Stat Ann § 921.141(5) (West Supp 1995) (listing eleven aggravating circumstances); Utah Code Ann § 76-3-202(1) (West Supp 1992) (listing seventeen aggravating circumstances).
140. See, e.g., NJ Stat Ann § 2C:11-3.c(4)(g) C"[t]he offense was committed while the defendant was engaged in . . . flight after committing or attempting to commit murder, robbery, sexual assault, arson, burglary or kidnapping").
141. See, e.g., Fla Stat Ann ch 921.141(S)(j) (Harrison Supp 1991); SC Code Ann § 16-3-20(C)(a)(7) (Law Co-op Supp 1991).
142. David C. Baldus, George Woodworth, and Charles A. Pulaski, Jr., Equal Justice and the Death Penalty: A Legal and Empirical Analysis at 268 n 31 (Northeastern, 1990).
143. Woodson v North Carolina, 428 US 280 (1976).
144. See note 32.
145. Lockett v Ohio, 438 US 586 (1978); Eddings v Oklahoma, 455 US 104 (1982).
146. See Carol S. Steiker and Jordan M. Steiker, Let God Sort Them Out? Refining the Individualization Requirement in Capital Sentencing, 102 Yale L J 835 (1992) (book review).
147. 476 US 1 (1986).
148. The result under the Federal Sentencing Guidelines would be just the opposite. See United States v Harrington, 947 F2d 956 (DC Cir 1991) (holding that the defendant's successful participation in a drug treatment program during his pretrial release and posttrial incarceration was not an appropriate grounds for a downward sentencing departure).
149. Payne v Tennessee, 501 US 808 (1991) (overruling Booth v Maryland, 482 US 496 (1987), and South Carolina v Gathers, 490 US 805 (1989)).
150. Payne, 501 US at 822 (internal quotation marks and citations omitted).
151. Id.
152. See Steiker, 94 Mich L Rev at 2624 (cited in note 82) ("Instead of clarifying and distilling the relevant issues in capital cases, the jargon and complexity that pervade contemporary punishment-phase instructions obscure the fundamental moral role that capital sentencers should be expected to assume.").
153. See, e.g., Ala Code § 13A-5-45(g) (1982) ("When the factual existence of an offered mitigating circumstance is in dispute, the defendant shall have the burden of interjecting the issue, but once it is interjected the state shall have the burden of disproving the factual existence of that circumstance by a preponderance of the evidence."); NCPI-Crim § 150.10, at 27 ("The existence of any mitigating circumstance must be established by a preponderance of the evidence, that is, the evidence, taken as a whole, must satisfy you - not beyond a reasonable doubt, but simply satisfy you - that any mitigating circumstance exists. . . . A juror may find that any mitigating circumstance exists by a preponderance of the evidence whether or not that circumstance was found to exist by all the jurors."); 42 Pa Cons Stat Ann § 9711(c)(iii) (requiring proof beyond a reasonable doubt for aggravating circumstances and proof by a preponderance of the evidence for mitigating circumstances).
154. See, e.g., Fla Stat Ann ch 921.141(2) (Harrison Supp 1991) ("After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court, based upon the following matter: (a) Whether sufficient aggravating circumstances exist as enumerated []; Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and (c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death."); Tenn Code Ann § 39-13-204 (1991) ("(f) If the jury unanimously determines that no statutory aggravating circumstances have been proven by the state beyond a reasonable doubt, or if the jury unanimously determines that a statutory aggravating circumstance or circumstances have been proven by the state beyond a reasonable doubt but that such circumstance or circumstances have not been proven by the state to outweigh any mitigating circumstances beyond a reasonable doubt, the sentence shall be life imprisonment. . . . (g) If the jury unanimously determines that: (A) At least one statutory aggravating circumstance or several statutory aggravating circumstances have been proven by the state beyond a reasonable doubt; and (B) Such circumstance or circumstances have been proven by the state to outweigh any mitigating circumstances beyond a reasonable doubt; then the sentence shall be death.").
155. Joseph L. Hoffman, Where's the Buck? Juror Misperception of Sentencing Responsibility in Death Penalty Cases, 70 Ind L J 1137, 1159 (1995).
156. See, e.g., William v New York, 337 US 241 (1949) (concluding that due process does not forbid judicial findings of fact at sentencing without extending compulsory process or the right to cross-examine witnesses to the defendant); Witte v United States, 515 US 389 (1995) and United v Watts, 519 US 148 (1997) (per curiam) (holding that neither the due process standard of proof beyond a reasonable doubt nor the Fifth Amendment's Double Jeopardy Clause apply at sentencing). A few basic protections have been extended to sentencing; however, these do not threaten the guidelines regime. See Mempa v Rhay, 3 89 US 128 (1967) (extending the right to counsel); Mitchell v United States, 526 US 314 (1999) (preserving the Self-Incrimination Clause).
157. Mistretta v United States, 488 US 361 (1989). But see 488 US at 413 (Scalia, J, dissenting).
158. 530 US 466 (2000). The outcome of this case was foreshadowed by Jones v United States, 526 US 227 (1999), where the Court held, 5-4, as a matter of statutory construction, that provisions of the federal carjacking statute which established higher penalties for the offense when it resulted in death or serious bodily injury were elements of the offense rather than sentencing factors, and thus must be proven to a jury beyond a reasonable doubt.
159. Apprendi, 530 US at 471 (see text). The state "hate-crime" statute at issue permitted the judge to raise a second-degree felony to a first-degree felony, potentially doubling the length of the sentence. On remand, Judge Rushdon H. Ridgway reduced Apprendi's sentence to seven years because prosecutors "showed by [only] a 'preponderance of the evidence' that Apprendi's act was racially motivated." Brenan Schurr, Sentence Cut After Court Reverses Hate-Crime Ruling, Rec N NJ (July 21, 2000), at A06.
160. Apprendi, 530 US at 490. Justice Stevens, writing the opinion for the Court, was joined by Justices Scalia, Souter, and Ginsburg. The majority excepted the pre-Apprendi practice of allowing a judicial finding of recidivism, even when such findings increase the otherwise applicable statutory maximum for the offense, by refusing to reverse Almendarez-Torres v United States, 523 US 224 (1998) (5-4) (upholding 8 USC § 1326(b)(2), which authorizes the twenty-year term of imprisonment for alien re-entry if the initial deportation was for commission of an aggravated felony, despite an otherwise applicable statutory maximum of two years imprisonment). That decision is unstable, however, because Justice Thomas, who joined the majority opinion in Almendarez-Torres, admitted in his Apprendi concurrence that he had made a mistake. Apprendi at 520 (Thomas, J, concurring).
161. A unanimous Court held last term that Apprendi "facts must also be charged in the indictment." United States v Cotton, 535 US 625 (2002).
162. See King and Klein, 54 Vand L Rev at 1467, 1547-55 (cited in note 6) (Appendices B and C, listing selected federal and state statutes subject to Apprendi challenges).
163. Apprendi, 530 US at 501 (2000) (Thomas, J, concurring).
164. 477 US 79 (1986) (5-4) (due process did not forbid the imposition of a five-year mandatory minimum sentence based upon a judicial finding that the defendant visibly possessed a firearm, where the total sentence imposed did not exceed the ten-year statutory maximum penalty for the underlying felony of aggravated assault).
165. Apprendi, 530 US at 518-23 (Thomas, J, concurring).
166. Id at 522.
167. Id at 533 (O'Connor, J, dissenting).
168. 432 US 197 (1977) (5-3) (holding that New York statute permitting affirmative defense of acting under extreme emotional distress to mitigate crime from murder to manslaughter can, consistent with due process, impose the burden of proving that affirmative defense by a preponderance of the evidence on the defendant).
169. Justice Thomas, while not mentioning Patterson, attempted to escape the clear implication of his test on the viability of affirmative defenses by arguing that "a 'crime' includes every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment)." Apprendi, 530 US at 501.
170. Were the legislative label of a fact to control, the Court could police neither the element-sentencing factor nor the criminal-civil divide. See Seling v Young, 531 US 250, 261 (2001) (concluding that only the "clearest proof" that an act denominated civil is punitive in purpose or effect can override legislative label to the contrary).
171. Apprendi, 530 US at 542-43 (O'Connor, J, dissenting).
172. See, e.g., Leland v Oregon, 343 US 790 (1952) (holding that it does not violate due process to require a defendant to prove insanity beyond a reasonable doubt); Martin v Ohio, 480 US 228 (1987) (5-4) (holding that it does not violate due process to require a defendant to prove self-defense by a preponderance of the evidence); Montana v Egelhoff, 518 US 37 (1996) (5-4) (holding that it does not violate due process to eliminate voluntary intoxication as a consideration in determining mens rea).
173. Justice Thomas suggested that the Guidelines must constitutionally be considered elements of criminal offenses when he opined that they "have the force and effect of laws." Apprendi, 530 US at 523 n 11 (Thomas, J, concurring) (citing Justice Scalia's dissent in Mistrena v United States, 488 US 361 (1989)).
174. 530 US at 549 (2002) (O'Connor, J, dissenting) (the majority opinion "will have the effect of invalidating significant sentencing reform accomplished at die federal and state levels over the past three decades"). Justice Breyer likewise noted: "the Court's rule suggests a principle - jury determination of all sentencing-related facts - that, unless restricted, threatens the workability of every criminal justice system (if applied to judges) or threatens efforts to make those systems more uniform, hence more fair (if applied to commissions)." Id at 565.
175. See Nancy J. King and Susan R. Klein, Aprés Apprendi, Federal Judicial Center website, 〈http://www.fjc.gov〉 (May 2002 version) (listing cases) (originally published at 12 Fed Sent Rtpr 331 (2000)).
176. Every circuit interpreting 18 USC § 924(c) since Apprendi has held that the unstated statutory maximum is life imprisonment, and the firearm type and use are mandatory minimum sentences not subject to Apprendi. See, e.g., Harris v United States, 243 F3d 806 (4th Cir 2001), cert granted 534 US 1064 (2001); United States v Carlson, 217 F3d 986 (8th Cir 2000); United States v Sandoval, 241 F3d 549 (7th Cir 2001); United States v Pounds, 230 F3d 1317 (11th Cir 2000).
177. 18 USC § 924(c)(1) (West 1988 ed Suppl V).
178. 530 US 120 (2000) (reversing Branch-Davidian defendant's thirty-year mandatory sentence based on judicial finding that firearm used in relation to a crime of violence was a "machinegun").
179. 18 USC § 924(c)(1) (West 2002).
180. 516 US 137 (1995) ("use" of a gun requires active employment).
181. The legislative history of this statute is discussed thoroughly in Harris v United States, Brief for Petitioner 15-17, 2002 WL 113846.
182. Harris v United States, 243 F3d 806 (4th Cir 2001) (affirming district judge's factual finding in favor of the government and imposition of seven-year sentence for gun offense, to run consecutive to six-month sentence for underlying drug offense).
183. Harris v United States, 122 S Ct 2406, 2418 (2002).
184. Justice Scalia, for once, had nothing to say, and offered no explanation as to why he switched sides.
185. Harris, 122 S Ct 2406 at 2416.
186. As Justice Thomas noted in his Harris dissent, the logic of the plurality would describe as constitutional a statute where the mandatory minimum without a judicial finding of brandishing is five years but the mandatory minimum with such a finding is life imprisonment. Harris, 122 S Ct at 2424 (Thomas, J, dissenting).
187. Id at 2425 (Thomas, J, dissenting) (citing to the U.S. Sentencing Commission, 2001 datafile, USSCFYO01, Table 1).
188. Id at 2420-21 (Breyer, J, concurring) (emphasis added).
189. Ring v Arizona, 536 US 584 (2002), 122 S Ct 2428, 2445 (Scalia, J, concurring).
190. On the other hand, Justice Breyer's strong allegiance to the Federal Sentencing Guide-lines, which he helped create, may lead him to our position - compromise over consistency.
191. See, e.g., Scott Sundby, The Reasonable Doubt Rule and the Meaning of Innocence, 40 Hastings L J 457 (1989) (arguing that any fact identified by the legislature as controlling the sentence must be treated as an element); Mark D. Knoll and Richard G. Singer, Searching for the "Tail of the Dog"; Finding "Elements" in the Wake of McMillan v Pennsylvania, 22 Seattle U L Rev 1057 (1999); Andrew M. Levine, The Confounding Boundaries of "Apprendi-land": Statutory Minimums and the Federal Sentencing Guidelines, 29 Am J Crim L 377 (2002).
192. See, e.g., Scott Sundby, The Reasonable Doubt Rule and the Meaning of Innocence, 40 Hastings L J 457 (1989) (arguing that any fact identified by the legislature as controlling the sentence must be treated as an element); Mark D. Knoll and Richard G. Singer, Searching for the "Tail of the Dog"; Finding "Elements" in the Wake of McMillan v Pennsylvania, 22 Seattle U L Rev 1057 (1999); Andrew M. Levine, The Confounding Boundaries of "Apprendi-land": Statutory Minimums and the Federal Sentencing Guidelines, 29 Am J Crim L 377 (2002).
193. See, e.g., Scott Sundby, The Reasonable Doubt Rule and the Meaning of Innocence, 40 Hastings L J 457 (1989) (arguing that any fact identified by the legislature as controlling the sentence must be treated as an element); Mark D. Knoll and Richard G. Singer, Searching for the "Tail of the Dog"; Finding "Elements" in the Wake of McMillan v Pennsylvania, 22 Seattle U L Rev 1057 (1999); Andrew M. Levine, The Confounding Boundaries of "Apprendi-land": Statutory Minimums and the Federal Sentencing Guidelines, 29 Am J Crim L 377 (2002).
194. The vast majority of those convicted of federal offenses do not receive departures, nor is the refusal to depart appealable. See note 35. However, where a judge does depart on an invalid ground, the sentence is reversed unless the error was harmless. Williams v United States, 503 US 193 (1992).
195. As noted by the Department of Justice in oral argument in Harris, judges do retain some discretion to depart below statutory minimum sentences, making them, again, indistinguishable from Guidelines departures. Oral argument in Harris v United States, Michael R. Druben, Deputy Solicitor General, p 35, lines 3-12, 3/25/02. See 18 USC § 3553(f), USSG § 5C1.2 (the safety-valve provision); 18 USC § 3553(e), USSG § 5K1.1 (departure below mandatory minimum for substantial assistance to prosecutor).
196. Harmelin v Michigan, 501 US 957 (1991) (Eighth Amendment imposes a proportionality limit on criminal sentences).
197. In fact, both mandatory minimum sentences and the Guidelines play a much more important role in the defendant's sentence than do statutory maximum penalties. A defendant rarely receives the statutory maximum; she receives the Guidelines sentence, unless trumped by a higher mandatory minimum. Neal v United States, 516 US 284 (1996) (mandatory minimum sentence for LSD trumps the lower guidelines).
198. Wayne R. LeFave et al, Criminal Procedure § 1.3q at 21 and n 226 (1999).
199. Apprendi v New Jersey, 530 US at 557-58 (Breyer, J, dissenting).
200. Nancy J. King and Susan R. Klein, Acceptance of Responsibility and Conspiracy Sentences in Drug Prosecutions after Apprendi, 14 Fed Sent Rptr 165 (2002).
201. See Nancy J. King and Susan R. Klein, Apprendi and Plea Bargaining, 54 Stan L Rev 295 (2001).
202. See U.S. Sentencing Guidelines Manual, § 3B1.1, providing for a three-level increase based on defendant's aggravating role in the offense, and § 3B1.2, providing for a four-level decrease based on defendant's mitigating role in the offense.
203. U.S. Sentencing Guidelines Manual § 3B1.3, permitting a two-level increase for abuse of position of trust or use of special skill.
204. See, e.g., U.S. Sentencing Guidelines Manual § 2A5.2 (providing for a five-level increase if a firearm was discharged during the crime of interference with a flight crew); § 2A4.1 (providing for a two-level increase if a dangerous weapon was used during a kidnapping); Bailey v United States, 516 US 137 (1995); (using a gun requires active employment); Muscarello v United States, 524 US 125, 137 (1998) (possessing a firearm in relation to a crime of violence or drug trafficking crime prohibits "prosecution where guns 'played' no part in the crime."); State v Shoats, 772 A2d 1 (NJ Sup Ct, App Div 2001) (requiring a defendant to serve 85 percent of his sentence if defendant used a weapon); People v Rhodes, 723 NYS2d 2 (App Div 2001).
205. 12 USC §§ 841 and 846 (triggering enhanced sentences for particular drug quantity); USSG § 1B1.3(a)(1)(B) (providing that a conspirator's sentence be based on the quantity she knew or should have known was involved in the conspiracy).
206. Grant v State, 783 So2d 1120 (Fla Dist Ct App 2001); State v Grossman, 622 NW2d 394 (Minn Ct App 2001).
207. See, e.g., U.S. Sentencing Guidelines Manual § 3A1.1 (providing for two-level increase for a crime committed against vulnerable victim); State v Gould, 23 P3d 801 (Kansas 2001) (abuse of child); People v Chanthaloth, 743 NE2d 1043 (Ill App Ct 2001) (brutality to elderly and physically handicapped victim). 155 See notes 23 and 30.
208. Jones v United States, 526 US 227, 243-44 (1999); Apprendi, 530 US at 479 n 5.
209. Apprendi, 530 US at 541 (O'Connor, J, dissenting).
210. King and Klein, 54 Vand L Rev at 1490 and Appendix A (cited in note 6). To date, to our knowledge there has yet to be a criminal statute designed to circumvent Apprendi.
211. Apprendi, 530 US at 490 n 16. King and Klein, 54 Vand L Rev at 1535-42 (cited in note 6) (suggesting multifactor test to police element-nonelement divide where legislature redrafts criminal statutes to eliminate elements).
212. Apprendi, 530 US at 524 (O'Connor, J, dissenting).
213. Id at 551.
214. King and Klein, Aprés Apprendi (cited in note 124), Appendices A and B.
215. Id.
216. 337 US 241 (1949) (holding that due process does not forbid judicial findings of fact at sentencing without extending compulsory process or the right to cross-examine witnesses to the defendant).
217. Furman v Georgia, 408 US 238 (1972).
218. Spaziano v Florida, 468 US 447, 472 (1984) (Stevens, J, concurring in part and dissenting in part).
219. Stephen Gillers, Deciding Who Dies, 129 Pa L Rev 1, 18 (1980) (stating that "each of the eight states currently opting for judge sentencing made that choice after Furman" and that "[t]heir adoption of judge sentencing [was] an apparent attempt to meet Furman's unclear commands").
220. See Ariz Rev Stat Ann § 13-703 (West Supp 2001); Colo Rev Stat § 16-11-103 (2001) (three-judge panel); Idaho Code § 19-2515 (Supp 2001); Mont Code Ann § 46-18-301 (1997); Neb Rev Stat § 29-2520 (1995).
221. See Ala Code §§ 13A-5-46, 13A-5-47 (1994); Del Code Ann, Tit 11, § 4209 (1995); Fla Stat Ann § 921.141 (West 2001); Ind Code Ann § 35-50-2-9 (Supp 2001).
222. See Gregg v Georgia, 428 US 153 (1976) (reviewing and sustaining Georgia's post-Furman "guided discretion" approach); Jurek v Texas, 428 US 262 (1976) (same); Proffitt v Florida, 428 US 242 (1976) (same). The Court invalidated the schemes of those states that provided for a mandatory death penalty. See Roberts v Louisiana, 428 US 325 (1976); Woodson v North Carolina, 428 US 280 (1976).
223. Proffitt, 428 US 242 (1976).
224. Id at 246.
225. Id at 252 (opinion of Stewart, Powell, and Stevens, JJ).
226. Spaziano v Florida, 468 US 447 (1984).
227. Id at 458.
228. Id at 461.
229. Id at 463-65.
230. 497 US 639 (1990).
231. In addition to Spaziano, the Court had rejected a challenge to Florida's advisory jury scheme in Hildwin v Florida, 490 US 638 (1989) (per curiam) (holding that, under McMillan v Pennsylvania, 477 US 79 (1986), aggravating factors in Florida's scheme are not elements of the offense but sentencing factors and thus are not subject to the Sixth Amendment jury trial right).
232. 497 US at 648.
233. 474 US 376 (1986).
234. See Enmund v Florida, 458 US 782 (1982) (holding that the Eighth Amendment prohibits as disproportionate the application of the death penalty to a defendant who has neither killed, attempted to kill, nor intended to kill). The Court substantially narrowed Enmund in Tison v Arizona, 481 US 137 (1987), by sustaining the death penalty for persons who do not satisfy the Enmund test but who nonetheless are major participants in dangerous felonies and exhibit reckless indifference to human life. 183 530 US 466, 496-97 (2000).
235. Id.
236. Id at 522-23 (Thomas, J, concurring).
237. Id at 537 (O'Connor, J, dissenting) (quoting majority opinion, id at 483 (emphasis in majority opinion)).
238. Id.
239. 536 US 584 (2002).
240. Gillers, Deciding Who Dies, 129 U Pa L Rev at 58-59 (1980).
241. Stephen B. Bright and Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 BU L Rev 759 (1995).
242. Id at 776-85.
243. Id at 784-94.
244. Id at 793. For further discussion of jury overrides, see Michael L. Radelet, Rejecting the Jury: The Imposition of the Death Penalty in Florida 18 UC Davis L Rev 1409 (1985); Mike Mello and Ruthann Robson, Judge Over Jury: Florida's Practice of Imposing Death Over Life in Capital Cases, 13 Fla St U L Rev 31 (1985); Katheryn K. Russell, The Constitutionality of Jury Override in Alabama Death Penalty Cases, 46 Ala L Rev 5 (1994).
245. Id at 793. For further discussion of jury overrides, see Michael L. Radelet, Rejecting the Jury: The Imposition of the Death Penalty in Florida 18 UC Davis L Rev 1409 (1985); Mike Mello and Ruthann Robson, Judge Over Jury: Florida's Practice of Imposing Death Over Life in Capital Cases, 13 Fla St U L Rev 31 (1985); Katheryn K. Russell, The Constitutionality of Jury Override in Alabama Death Penalty Cases, 46 Ala L Rev 5 (1994).
246. Id at 793. For further discussion of jury overrides, see Michael L. Radelet, Rejecting the Jury: The Imposition of the Death Penalty in Florida 18 UC Davis L Rev 1409 (1985); Mike Mello and Ruthann Robson, Judge Over Jury: Florida's Practice of Imposing Death Over Life in Capital Cases, 13 Fla St U L Rev 31 (1985); Katheryn K. Russell, The Constitutionality of Jury Override in Alabama Death Penalty Cases, 46 Ala L Rev 5 (1994).
247. Death Row U.S.A. (NAACP Legal Defense and Education Fund, Inc.), Fall 2002, at 23 (listing Arizona's death row population as 125).
248. Id (listing Colorado's death row population as 5, Idaho's as 22, Montana's as 6, and Nebraska's as 7).
249. Id at 1 (listing total death row as 3,697).
250. Id at 6-7 (stating that Colorado and Idaho have each carried out one execution, that Nebraska has carried out three executions, and that Montana has carried out two executions).
251. 122 S Ct 2446, 2446-48 (2002).
252. Id at 2437 n 4.
253. Id.
254. See § 104, 110 Stat at 1218-19 (codified as 28 USC § 2254(d) (Supp IV 1998)).
255. Teague v Lane, 489 US 288 (1989).
256. Strickland v Washington, 466 US 668 (1984).
257. Murray v Giarrantano, 492 US 1 (1989) (finding no constitutional right to appointed counsel for indigent defendants in state postconviction proceedings).
258. Coker v Georgia, 433 US 584 (1977).
259. Enmund v Florida, 458 US 782 (1982); Tison v Arizona, 481 US 137 (1987).
260. Atkins v Virginia, 536 US 304 (2002).