Ethan Glass, Whatever Happened to the Trial by Jury? The Unconstitutionality of Upward Departures Under the United States Sentencing Guidelines, 37 Gonz. L. Rev. 343 (2002).
Federal judges were granted great discretion in sentencing, at least before Congress passed the Sentencing Reform Act; any sentence lesser than the statutory maximum was within a judge’s sole discretion. Under such a system, the information judges could consider was unlimited, the Federal Rules of Evidence did not apply, and sentences were not privy to review. Included among the results of this system were inconsistency and indeterminacy.
In order to remedy these shortcomings, Congress created the United States Sentencing Commission and empowered it with the authority to create the Federal Sentencing Guidelines. The Commission developed the Guidelines to serve as a tool whereby judges could make a structured sentencing decision; the sentences would be more certain and serious repeat offenders could face stiffer penalties. Although they give the judge discretion in sentencing-for example, a court may depart from the Guidelines for aggravating circumstances –the Guidelines recognize a court is not entitled to “unfettered discretion.”
The pressing problem is by whom, and by what standard, should such departure decisions be made. One option is that a party independent from the judicial system, such as a sentencing consultant, should make these determinations. However, such addition is frustrated by the fact that three parties-legislators, judges, and juries-already possess some power in sentencing. As a result of this prior appropriation of sentencing power, the proper question surrounds the determination of which sentencing decisions each of these three should make. . . . Read More