Re-Conceptualizing Booker: How to Prevent Legislatures from Circumventing the Right to Jury Trial

Richard M. Re, Yale Law School


Sixth Amendment sentencing jurisprudence has followed a crooked path. This Article offers a critique, a solution, and a suggested way forward. As currently explained by the Supreme Court, the Booker line of cases lacks a secure foothold in the Sixth Amendment’s right to jury trial, fails to allay concerns that post-Booker appellate sentencing review might itself lead to Booker violations, and cannot explain how the Sixth Amendment underlies the Court’s post-Booker decisions regarding federal sentencing. Moreover, this apparently unprincipled constitutional doctrine is pushing courts toward the conclusion that federal district court sentencing decisions are effectively unreviewable – a result that would invite large and inequitable sentencing disparities. The key to solving these dilemmas is to justify Booker’s constitutional rule on the grounds that it discourages legislatures from shifting fact-finding responsibilities away from juries and toward judges. This “jury circumvention” approach highlights the possibility that, despite the Booker rule, courts might bow to congressional efforts to empower judges at juries’ expense. Gall and Kimbrough are best understood as an effort to address this issue by insisting that courts both issue and review sentences based on their own independent judgment, without deferring either to Congress or to the Commission. On this approach, the Supreme Court’s Sixth Amendment jurisprudence is fully compatible with robust substantive appellate review of federal district court sentencing decisions.