A Racially Biased Obstacle Course: Apprendi Transformed the Federal Sentencing Guidelines into a Series of Judicial Obstacles; Can Shame Reduce the Racial Disparities

We are delighted to celebrate the twentieth Anniversary of Apprendi v. New Jersey, a case that sought to correctly enshrine the jury’s role in a criminal trial by requiring the government both to plead in an indictment and prove to a jury beyond a reasonable doubt any facts triggering an increased statutory maximum penalty. As we note in Part I of our Essay, the members of the Apprendi majority unfortunately opined five years later in United States v. Booker that any facts contained in the Federal Sentencing Guidelines (“the Guidelines”) and used to enhance sentences were also elements of an offense, and thus not sentencing factors. They also held that only advisory sentencing guidelines comport with the Fifth, Sixth, and Fourteenth Amendments. This second and erroneous holding has made two of the primary salutary goals of the Guidelines—(1) transparency and (2) elimination of unwarranted racial disparity—much more difficult to achieve. Though, on the bright side, this holding did allow federal district judges to temper the shockingly high sentences suggested by the Guidelines. Federal sentencing has become an obstacle course where all parties must jump through hoops for no apparent purpose. In Part II, we offer a solution to address the Guidelines’ second goal by using knowledge and shame to solve racial disparities in sentencing. Since these disparities worsen with increasing judicial sentencing discretion, we aim our reform but not our blame at federal judges. We briefly consider and reject algorithms used primarily in bail hearings as the answer to fair sentencing, before landing upon our proposal to publish racial disparities in sentencing for each judicial district. Using shame as a tool to regulate behavior is not new, and there are reasons to believe it might be particularly appropriate in this situation.