Abusing Discretion in Sentencing after Beckles
Yesterday, the Supreme Court decided Beckles v. United States. The case involved a challenge to the federal sentencing guidelines. Section 4B1.1 of the U.S. Sentencing Guidelines prescribes a sentencing enhancement for certain criminal defendants if the offense of conviction is a “crime of violence.” At the time of Beckles’s conviction, the guideline defined “crime of violence” to include crimes that present “a serious potential risk of physical injury to another.” In an earlier decision, Johnson v. United States, the Court held that identical language found in a criminal statute was unconstitutionally vague. It explained that the statute raised uncertainty about how to estimate the risk posed by a crime and uncertainty about how much risk it takes for a crime to qualify as a violent felony.
The principal issue in Beckles was whether that same vagueness conclusion should apply to the sentencing guidelines. The reason for possibly treating the guidelines differently is that they are not mandatory. Criminal statutes prescribe a sentencing range; judges must exercise their discretion in choosing a sentencing within that range. Courts must consider the guidelines in exercising that discretion, but the guidelines are merely one of several factors (albeit the most important factor) that courts must consider.
In an earlier post, I noted that Beckles potentially raised an interesting issue of Auer deference. The official commentary to the guideline had provided specific language indicating that it applied to Mr. Beckles, and there was a question whether that commentary should receive deference. The Court ended up not deciding that issue. Instead, it held that the federal sentencing guidelines cannot be unconstitutionally vague because they are only one consideration guiding a sentencing court’s discretion.
It’s that discretion that I want to talk about. Discretion arises in all areas of the law, but administrative law scholars—in particular, Kenneth Culp Davis and Judge Friendly—have been the ones to analyze discretion as a concept.
The Court’s reasoning ran as follows: Historically, courts had virtually unfettered discretion in choosing what sentence to impose, and that broad discretion did not raise vagueness concerns. Because the guidelines simply cabin that broad historical discretion, they also cannot be vague. As the Court put it, “If a system of unfettered discretion is not unconstitutionally vague, then it is difficult to see how the present system of guided discretion could be.”
That conclusion might be right. The guideline itself might not be unconstitutional on the ground that they are vague. But it does not mean that the sentences imposed under that guideline are legal. Sentences must be the product of sound discretion, and a sentence based on a “vague” guideline strikes me as an abuse of discretion.
The broad discretion that a court had historically in imposing sentence did not authorize the court to impose any sentence it wanted for any reason. Putting a matter to a court’s discretion means, “not to its inclination, but to its judgment, and its judgment is to be guided by sound legal principles.” United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C.J.). That means that some considerations could not be the basis for sentence. An obvious example is something that is constitutionally off-limits, like race. But another questionable consideration includes matters that are simply too unprincipled to be the basis for imposing sentence—for example, a coin flip.
Section 4B1.1 falls into this camp. Under Johnson’s logic, the guideline raises too much uncertainty about how to estimate the risk posed by a crime and too much uncertainty about how much risk it takes for a crime to qualify as a violent felony. Because courts must consider the guidelines in imposing sentence, Section 4B1.1 presses courts to exercise their discretion in an unprincipled way.
This of course is not to say that the Court got the decision wrong. The issue wasn’t presented; indeed, Beckles couldn’t raise the issue because of procedural barriers. But it is to say that vagueness challenges to the guidelines may still have a place.