Sentencing Organizations after Booker
Johnson, Timothy A., The Yale Law Journal
INTRODUCTION I. BOOKER BASICS II. THE ORGANIZATIONAL SENTENCING GUIDELINES A. Convicting Organizations of Crimes B. The Statutory Background of the Organizational Guidelines C. How Courts Use the Guidelines To Sentence Organizations D. Organizational Sentencing Statistics III. AN ORGANIZATION'S RIGHT TO A CRIMINAL JURY TRIAL A. Do Organizations Possess Constitutional Rights? B. Does the Sixth Amendment Entitle Organizations to a Criminal Jury Trial? 1. All Defendants Are Entitled to a Jury When Charged with a Serious Crime 2. When a Charge Against an Organization Is Serious C. Possible Solutions to the Dilemma of Organizational Jury Rights 1. The Case-by-Case Approach 2. The Bright-Line Approach IV. BOOKER AND THE FUTURE OF THE ORGANIZATIONAL GUIDELINES A. Can the Organizational Guidelines Be Mandatory After Booker? B. Should the Organizational Guidelines Be Mandatory After Booker? CONCLUSION
Roughly two hundred organizations are criminally sentenced in federal court each year. (1) Although the average sentence requires payment of several million dollars (roughly $4.5 million in 2005 (2)), judges may order organizations to pay hundreds of millions of dollars in fines and restitution. (3) Judges have typically crafted these multi-million dollar sentences based on provisions of the U.S. Sentencing Guidelines pertaining to organizations (the "organizational guidelines"), (4) but the Supreme Court's most important sentencing decision in recent years has cast doubt on this process. In United States v. Booker, the Supreme Court held unconstitutional the requirement that judges treat the U.S. Sentencing Guidelines as mandatory when sentencing individuals. (5) The Court did not explicitly address the sentencing of organizations; however, a careful reading of the opinion leads to two conclusions about organizational sentencing.
First, Booker's broad holding rendered the organizational guidelines, like the guidelines applicable to individuals (the "individual guidelines"), nonmandatory. The provision that made the guidelines mandatory, 18 U.S.C. [section] 3553, does not distinguish between the organizational guidelines and the individual guidelines, (6) and the Booker Court invalidated this provision, holding that the combination of judicial fact-finding and mandatory sentencing guidelines violated individual defendants' Sixth Amendment rights. (7) Booker's statutory remedy thereby rendered all of the guidelines nonmandatory.
Second, in addition to sweeping the organizational guidelines under its statutory remedy, Booker's constitutional reasoning applies to the organizational guidelines. This conclusion is not immediately obvious. After Booker, sentencing guidelines are unconstitutional if they direct a judge to find facts that increase the maximum guideline sentence that can be imposed on the defendant, thereby robbing him of his right to have those facts found by a jury. (8) Thus, if a defendant does not have the right to a jury trial, a judge can presumably sentence him based on mandatory guidelines without running afoul of the Sixth Amendment. Because of this wrinkle, one might expect that organizations can still be sentenced under mandatory guidelines-after all, it is not self-evident that organizations have jury rights.
Nevertheless, based on decisions from lower federal courts, organizations sentenced under the organizational guidelines-with the possible exception of large organizations facing relatively modest fines--are entitled to a jury trial. (9) Because Booker's Sixth Amendment reasoning therefore will apply to the organizational guidelines in most cases, Congress cannot restore the guidelines to mandatory status by a quick statutory fix. Moreover, even if Congress could constitutionally reinstate the guidelines' mandatory status for those organizations that are not entitled to a jury trial, it would be unwise to do so as a policy matter: mandatory guidelines are unable to account for the wide variety of circumstances surrounding organizational crime and have proven unnecessary to fulfill the goals for which the guidelines were created. …