A Return to Discretion in Sentencing Criminal Tax Defendants

In a recent decision, the U.S. Supreme Court has endeavored to balance uniformity and predictability in Federal criminal sentencing with a tax defendant's rights under the Sixth Amendment to the Constitution. Prior to 1987, judges had discretion in sentencing criminal defendants and could consider the facts of each case in deciding the appropriate sentence. As a result, defendants convicted of a tax crime with no previous criminal history were in many cases not sent to prison. While discretionary sentencing gave judges significant leeway in determining what if any factors unique to the defendant should enhance or mitigate the punishment, it also created the potential for unpredictable and variable sentences. In response to a perceived need for predictability and uniformity, Congress created the US Sentencing Commission (Commission) in 1984 and instructed it to take steps which would stiffen punishment for persons convicted of tax crimes. In 1987, the Federal Sentencing Guidelines (Guidelines) were published, providing a range of mandatory sentences for all Federal crimes, including tax crimes. Judges were required to follow the Guidelines with little deviation. Gains in uniformity came at a heavy cost in individuality. Initially finding the Guidelines to be Constitutional in Mistretta v. United States, 488 U.S. 361 (1989), the Court did an about-face in a series of cases culminating in United States v. Booker, 125 S.Ct. 738 (2005). In Booker, the Court found and then cured a Constitutional defect in the Guidelines. The Guidelines require Federal judges to enhance sentences with facts which are not found beyond a reasonable doubt by a jury of the defendant's peers. The Court held this to be a violation of the Sixth Amendment's right to trial by jury, in conformity with its previous holdings in Blakely v. Washington, 542 U.S. 296 (2004) (finding the Washington State Sentencing Guidelines enhancement scheme unconstitutional under the Sixth Amendment). Booker held, 5-4, that the proper remedy for the Guideline's unconstitutionality was to sever and excise that portion of the Guidelines that made them mandatory. The Court further held that the district court's sentencing determination would only be subject to reversal if unreasonable. The Court's holding brings us back to a nearly pre-Guidelines environment of judicial independence and individual determination - now we have discretion. The Booker Court made clear that Congress, through legislation, could again return to a more rigidless discretionary sentencing system. For now, however, guided discretion seems to be working.