FAC U LT Y S C H O L A R S H I P
Investigating Criminal Law Rachel Barkow, a former associate at the Washington, D.C., firm of Kellogg, Huber, Hansen, Todd & Evans, joined NYU School of Law's faculty in Fall 2002. At Kellogg, Huber, Hansen, Todd & Evans, Barkow focused on telecommunications and administrative law issues in proceedings before the Federal Communications Commission, state regulatory agencies, and federal and state courts. Barkow clerked for Judge Laurence Silberman on the D.C. Circuit and for U.S. Supreme Court Justice Antonin Scalia. Her main academic fields are administrative and criminal law, and she is especially interested in how the lessons of administrative law can be applied to the administration of criminal justice. Her most recent works include “More Supreme Than Court: The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy” Columbia Law Review (2002) and “A Tale of Two Agencies: A Comparative Analysis of F.C.C. and D.O.J. Review of Telecommunications Mergers,” co-authored with Peter Huber, University of Chicago Legal Forum (2000), as well as the piece excerpted here. Barkow's writing also draws on legal history to explore the role the political question doctrine and the jury requirement play in a system of checks and balances.
holdover that fits uneasily in the modern administration of criminal justice, the remainder of the argument may be unsatisfying. But for those who continue to believe in the jury’s importance — because the Constitution enshrines its power, because history documents the jury’s use of its power to protect liberty, because the jury continues to act as a valuable check against the state — mandatory sentencing laws should be a great cause of concern.
* * * * andatory sentencing laws pose the same threat as other general criminal laws. Indeed, these sentencing laws resemble general criminal laws in all key respects. Under these laws, judges make the same type of factual determinations that juries make under general criminal laws. And these findings have predetermined, and significant, consequences for the defendants’ punishment as a matter of law. The key difference is that these laws are being applied by judges, not juries. What does that mean as a practical matter? If the prosecutor believes the trial judge has ignored the letter of these laws, she can appeal the ruling and the appellate court must rule for the government if the trial
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judge misapplied the law. There is, then, little room for the trial judge to bend the law as a matter of justice or equity. This obviously strengthens the legislature’s and executive’s hand as compared to the position the political branches would be in if the jury applied these laws. If the jury applied the law and determined it should not apply in a particular case, for whatever reason, that is the end of the matter. Mandatory sentencing laws such as the Sentencing Guidelines therefore work an enormous change in the balance of separated powers. Under the discretionary regime that existed before mandatory minimum sentences and sentencing guidelines, judges and juries together had ample authority to ensure that a defendant received punishment commensurate with his or her individual circumstances. The jury applied any general criminal law dictating punishment to ensure it properly applied in a given case. If that general law imposed a range of punishment, the judges then had the discretion to sentence based on whatever facts the judge deemed appropriate and without the threat of a government appeal. To be sure, this was not a perfect system. With such broad power, there was the potential for abuse and disparity. But there was no question that the judiciary had the power to prevent an overinclusive law from applying when it would be unjust; the executive and the legislature did not have unchecked power to make the determination. The problem with modern sentencing law is that it strips this power from both judicial actors. The legislature passes general laws with particular punitive effects, but it requires judges to apply those laws within confined limits — or face an appeal by the prosecution. As a result, neither the judge nor the jury has the power to ensure that the law is being properly applied in a particular case. This is the danger of stripping the adjudicatory process of discretionary power: It paves the way for unchecked legislative and executive power that can be abused and threaten individual liberty. Unfortunately, the Supreme Court thus far seems uninterested in correcting this imbalance of power. Although it has taken an interest in jury power over the last few terms, the Court ultimately came up with a test for defining the province of the jury that does little to protect the jury’s function. As long as the finding of a fact under a general law does not trigger punishment above a statutory maximum, the Court has permitted those general laws to be applied by judges. This statutory maximum test for identifying what juries must decide rests on the formalistic argument that the jury’s conviction authorizes punishment up to that point. It undermines the point of the jury,
however, to give it the power to apply only the laws that impose the statutory maximum for the offense, because those laws represent only one of the laws in a proceeding that might be unjust to apply in a particular case or that might be unjust as a general matter. To be sure, that authority allows the jury to shield a defendant from all punishment if the jury acquits the defendant of all charges. But if the jury convicts the defendant of any of the charges, the government can seek to invoke additional general laws in the same proceeding that dictate criminal punishment. And those laws pose the same equitable threat as the law imposing the statutory maximum. Because the threat
This is the danger of stripping the adjudicatory process of discretionary power: It paves the way for unchecked legislative and executive power that can be abused and threaten individual liberty. is the same whether it is a sentencing or liability law — overinclusive general laws subject to executive and legislative overreaching — the response should be the same: an equitable check by the people. Thus, in developing a benchmark for when laws associating facts with criminal punishment must be applied by juries instead of judges, the key is whether the judiciary has sufficient discretion to ensure that the law is properly applied in an individual case. If the judge’s discretion is curtailed in this regard, the laws that mandate punishment on the basis of those facts should be applied by juries, which have built-in discretionary power to check those laws to ensure they properly lead to criminal punishment in an individual case. ■
1 Letter from Thomas Jefferson to the Abbé Arnoux (July 19, 1789) in 15 The Papers of Thomas Jefferson 283 (Julian P. Boyd & William H. Gaines Jr. eds., 1958).
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