Judge Rakoff Challenges Sentencing Guidelines: Upholding the Sixth Amendment

Constitutional Concerns and the Sixth Amendment

In his opinion, Judge Rakoff emphasized the fundamental role of the Sixth Amendment, which guarantees the right to a speedy and public trial. He observed that “the jury trial has been replaced, almost exclusively, by a system of secret plea-bargaining negotiations behind closed doors,” and noted that only 2.4% of federal felony indictments went to trial in 2024. This shift raises concerns about the transparency and accountability of the criminal justice system.

The Impact of the Trial Penalty on Defendants

Since the US Supreme Court’s landmark decision in United States v. Booker in 2005 held that the Sentencing Guidelines are merely advisory, district courts are no longer mandated to impose sentences strictly according to the Guidelines. Nevertheless, as noted by Judge Rakoff, the Guidelines still play a significant role in sentencing decisions because they must serve as a starting point for the court’s consideration.[1] Accordingly, “there is considerable empirical evidence indicating that the Sentencing Guidelines have the intended effect of influencing the sentences imposed by judges.”[2] The Guidelines also define what is reasonable for appellate courts reviewing a sentence. As a result, Judge Rakoff described section 3E1.1(b) as a “trial penalty” that puts defendants in a difficult position. Criminal defendants must balance the risk of trial against the benefits of a one-point sentencing reduction, a number that while seemingly small can in practice mean the difference between a fixed term and a life sentence, or jail time and home detention. Judge Rakoff explained that this risk is further enhanced because prosecutors often charge the most serious offenses they can prove, and thus section 3E1.1(b) can create a substantial risk for defendants who proceed to trial and do not accept responsibility through guilty pleas. As such, Judge Rakoff found that “section 3El.l(b) places an impermissible burden on the Sixth Amendment right.”[3]

Judge Rakoff raised three principal concerns with § 3E1.1(b). First, it imposes an undue burden on defendants who wish to exercise their right to a trial.[4] Second, the timing requirement for the guilty plea unfairly penalizes defendants who take longer to decide whether to waive their trial right, even if they eventually choose to plead guilty. Third, in requiring the government to move for the additional one-point reduction, section 3E1.1 gives undue power to prosecutors and increases pressure on defendants to plead guilty. Judge Rakoff recognized that “[b]y empowering the Government … § 3E1.1(b) amplifies the pressure exerted on a defendant to plead guilty, rather than proceed to trial.” He found it troubling that the government, rather than the district court, determines a defendant’s eligibility for the reduction, which undermines judicial discretion.

Implications for Defendants

Judge Rakoff’s Tavberidze decision invites a reassessment of how the Guidelines interact with constitutional rights. He suggests that when a defendant opts for trial, or to simply engage in a “more deliberate investigation” of the charges,[5] the court should reinforce its commitment to upholding the Sixth Amendment and adjust the offense level downward to avoid an unconstitutional trial penalty.

Judge Rakoff’s concern about the constitutionality of section 3E1.1 is not new. For instance, in 1997, Professor Michael M. O’Hear described the “reduction” of 3E1.1 as a “penalty imposed for the exercise of a constitutional right,” which he cautioned “may or may not be permitted by the Constitution[.]” Professor O’Hear thus urged the US Sentencing Commission to “consider restructuring section 3E1.1 in order to render such a controversial matter as a trial penalty more open to public and judicial scrutiny.”[6]

Perhaps the Tavberidze decision will help prompt the Commission to include 3E1.1 amongst its priorities for future proposed amendments to the Guidelines. Meanwhile, we will be paying close attention to whether other federal judges around the country, like Judge Rakoff, will similarly “conclude[] that in … every case in which a defendant chooses to go to trial but is convicted by a jury, or in which the defendant simply chooses to consider going to trial until after the Government has already started preparing for trial, the formal calculation of the offense level must be reduced by one point, because the effect of not giving the one-point reduction to someone who chose to exercise, or considered exercising, his right to go to trial rather than save the Government some time and money is effectively an unconstitutional penalty on all who made that choice.”[7]