	Introduction

On January 12, 2005, the U.S. Supreme Court ruled that the Sixth Amendment right to a trial by jury requires that federal sentencing guidelines be advisory, rather than mandatory. In doing so, the Court struck down a provision in law that made the federal sentencing guidelines mandatory as well as a provision that permitted appellate review of departures from the guidelines. In essence, the Court's ruling gives federal judges discretion in sentencing offenders by not requiring them to adhere to the guidelines; rather, the guidelines can be used by judges on an advisory basis. In light of these rulings, the issue for Congress is whether to amend current law to require federal judges to follow guided sentences (hence, codify specified sentencing ranges that are in the guidelines), or to continue the status quo and permit federal judges to use their discretion in sentencing, under certain circumstances. Penal Policy

Historically, the way in which convicted offenders are sentenced in the United States falls under one of two penal policies—indeterminate and determinate sentences. Indeterminate sentencing practices were predominant for several decades, leading up to the major reform efforts undertaken by many states and the federal government in the mid- to late 1970s and early 1980s (see discussion in the next section). It wasn't until 1984, however, that Congress passed a sentencing reform measure, which abolished indeterminate sentencing at the federal level and created a determinate sentencing structure through the federal sentencing guidelines (see discussion below). The perceived failure of the indeterminate system to "cure" the criminal (usually measured by recidivism rates), coupled with a concern about rising crime rates throughout the nation in the mid-1970s, resulted in experimentation with sentencing systems by several states and the creation of sentencing guidelines at the federal level. The Sentencing Reform Act of 1984

In 1984, Congress passed legislation that led to the creation of federal sentencing guidelines. Sentencing Commission and charging it with establishing sentencing guidelines. In the first opinion, the Court sought to restore the jury's significance in its finding of the underlying crime. Maintain the Sentencing Guidelines

One option Congress may wish to consider could be to maintain the sentencing guidelines by specifying mandatory minimum sentences and increasing the top of each guideline range to a statutory maximum for specified offenses (hence, codify specified sentencing ranges that are in the guidelines). Under this scheme, for each enhancement that would increase the sentence beyond the guideline maximum for which the defendant did not waive his or her rights, the judge has the option of trying aggravating factors before the jury, either during the main trial or in a separate, bifurcated proceeding. Permit Judicial Discretion in Sentencing

Congress may also allow federal judges to exercise their discretion in sentencing in cases where Congress has not specified a mandatory term of sentence.
Historically, the way in which convicted offenders are sentenced falls under one of two penal policies—indeterminate and determinate sentences. Indeterminate sentencing practices were predominant for several decades, leading up to the major reform efforts undertaken by many states and the federal government in the mid- to-late 1970s and early 1980s. The perceived failure of the indeterminate system to "cure" the criminal, coupled with renewed concern about the rising crime rate throughout the nation in the mid-1970s, resulted in wide experimentation with sentencing systems by many states and the creation of sentencing guidelines at the federal level. In 1984, Congress passed a sentencing reform measure, which abolished indeterminate sentencing at the federal level and created a determinate sentencing structure through the federal sentencing guidelines. The Sentencing Reform Act of 1984 reformed the federal sentencing system by (1) dropping rehabilitation as one of the goals of punishment; (2) creating the U.S. Sentencing Commission and charging it with establishing sentencing guidelines; (3) making all federal sentences determinate; and (4) authorizing appellate review of sentences.
In United States v. Booker (Booker), an unusual two-part opinion transformed federal criminal sentencing by restoring to judges much of the discretion that Congress took away when it put mandatory sentencing guidelines in place. In the first opinion, the United States Supreme Court held that the mandatory sentencing guidelines violated defendants' Sixth Amendment right to a trial by jury by giving judges the power to make factual findings that increased sentences beyond the maximum that the jury's finding alone would support. In the second part, a different majority concluded that the constitutional deficiency could be remedied if the guidelines were treated as discretionary or advisory rather than mandatory. As a result of the decisions, the Court struck down a provision in law that made the federal sentencing guidelines mandatory as well as a provision that permitted appellate review of departures from the guidelines. In essence, the high Court's ruling gives federal judges discretion in sentencing offenders by not requiring them to adhere to the guidelines; rather, the guidelines can be used by judges on an advisory basis.
In light of the Court ruling in Booker and subsequent cases, the issue for Congress is whether to amend current law to require federal judges to follow guided sentences, or permit federal judges to use their discretion in sentencing under certain circumstances. Congressional options include (1) maintain the sentencing guidelines by specifying mandatory minimum sentences and increasing the top of each guideline range to a statutory maximum for specified offenses (hence, codify specified sentencing ranges that are in the guidelines); (2) require jury trials for any enhancement factor that would increase the sentence for which the defendant did not waive his or her rights; or (3) take no action, thus permitting judicial discretion in sentencing in cases where Congress has not specified mandatory sentences.