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September 21, 2004

What Blakely is really about: adversarial versus administrative justice

Aided by yesterday's two wonderful Wall Street Journal articles (discussed here and here) and a great student comment at last week's Harvard panel, I think I finally have Blakely figured out. Blakely is really a battle between five Justices who champion an adversarial model of sentencing in which sentence-enhancing facts must be proved to a jury beyond a reasonable doubt, and four Justices clinging to a now-dated administrative model of sentencing where, in Justice Scalia's words, "a lone employee of the State" makes all critical findings and determinations.

The WSJ articles provide additional evidence of just how much modern federal sentencing has become a (prosecutor-controlled) administrative system of criminal justice. As the articles explain, US Sentencing Commission data reveal that 97 of every 100 federal convictions are now secured through guilty pleas. Sentences are increased by prosecutors by alleging at sentencing offenses and other facts that never were charged or proved, and guideline calculations are based almost exclusively on information in a pre-sentence report prepared by a probation officer who gets most offense information from a federal prosecutor. I am now reading Blakely as a statement that this administrative system of sentencing cannot persist if we are truly committed to an adversarial system of criminal justice.

The sparring between Justices Scalia and Breyer makes so much more sense when viewed through this adversarial/administrative lens. Justice Scalia assails Justice Breyer's "esteem for non-adversarial truth-seeking processes" and asserts that "Our Constitution and the common-law traditions it entrenches ... do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury." Slip op. at 17. And Justice Scalia concludes his Blakely opinion with this telling passage:

One can certainly argue that both these values [of efficiency and fairness] would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers' paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.

The adversarial/administrative distinction also helps explain other aspects of the Blakely story. It explains why Justice Breyer, traditionally considered a liberal, is fighting against extending Sixth Amendment rights to sentencing. A former professor of administrative law and author of leading administrative law texts (see his bio here), Justice Breyer obviously has an affinity for administrative processes even at sentencing. It also explains my fear expressed here that the arguments of the Blakely dissenters might undermine claims of a right to counsel at sentencing. Lawyers are essential for fair adversarial processes; but if sentencing is to be more administrative, then the right to a lawyer is more questionable.

Finally, the adversarial/administrative distinction also helps explain why Williams v. New York, 337 US 241 (1949), which permits lax procedures in an indeterminate-sentencing regime, may have been sound at the time it was decided. Recall that Williams expressly defends lax sentencing procedures based on the then-dominant rehabilitative "medical" model of sentencing: the Williams court stressed that "[r]eformation and rehabilitation of offenders have become important goals of criminal jurisprudence," and the Court sought to foster "modern penological procedural policies" by ensuring judges have "the fullest information possible concerning the defendant's life and characteristics." The Williams court stressed that allowing judges access to out-of-court information is grounded in "the belief that by careful study of the lives and personalities of convicted offenders many could be less severely punished and restored sooner to complete freedom and useful citizenship." Id. at 249.

If in fact the prosecutor, probation officer, judge and parole official are all trying to devise the least severe sentence to "cure" a "sick" offender, an administrative model of sentencing makes sense. Just as patients are not thought to need "procedural rights" when being treated by a doctor, defendants at the time of Williams were not thought to need such rights when being sentenced by a "medical model" sentencing court seeking to give "careful, humane, and comprehensive consideration to the particular situation of each offender." But, of course, "modern penological procedural policies" have changed drastically over the last 30 years. Though the demise of rehabilitation as a penal theory may be overstated, there is no doubt that sentencing is today predominantly about imposing punishment, not about devising a cure.

As Judge Nancy Gertner highlighted in her Mueffleman decision (available here), in the federal system the major decisions about the imposition of punishment have been made by Congress and the Sentencing Commission (an administrative agency). Thus, after a prosecutor makes a variety of discretionary charging and bargaining choices, the judge's role is "transformed to 'just' finding the facts, now with Commission-ordained consequences" but "with fewer safeguards, less formality, and far less legitimacy" than what should prevail in a fair adversarial system.

In short, the Blakely decision ultimately reflects the fact that we reformed the substance of our sentencing laws without reforming the procedures. Blakely finally recognizes that, in a world in which sentencing is about punishment and no longer about curing, we should no longer be comfortable relying on administrative procedures at sentencing.

September 21, 2004 at 08:45 AM | Permalink

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Comments

I read the articles yesterday with great interest. I agree with much of your commentary. However, one thing stands out and that is probation is just like DHS in that they can interview someone, gathering information for their report, and make a recommendation of a higher sentence based on supposition and no proof. That's not justice. That's someone who could have a chip on their shoulder or is overworked and unable to make rational decisions, or fair decisions. And yes, probation relies too much on the prosecutor, who should have NO input whatsoever. If probation is there to help the judge, they must be instructed to rely only on provable facts, no gut feelings, no rumor. Not too many people win when they challenge a PSI. If there is a lie or some other form of misinformation in the PSI, there should be an avenue by which to rectify that. All too often the judge rules against the defendant and lets the errors stand, making the sentence higher. That's not justice either.

We have a system that is workable if you limit the prosecutor's ability to threaten and intimidate through substantial assistance and if any relevant conduct must be admitted to in a plea or proven before a jury. How can anyone justify doing time for something of which you haven't been convicted? I don't care if "innocent" people aren't doing time, I care about justice and making the punishment fit the crime. As Justice Kennedy pointed out, this country's prison population and sentencing is much more severe than any other civilized country in the world. We spend far too much money stroking prosecutors' egos and using the "hard on crime" slogan as a campaign slogan. It's time for common sense. Crime is not down because prison is a deterrent.

We need to eliminate points for "obstruction of justice" (everybody gets nailed on that if they go to trial) and eliminate points for "accepting responsibility" which just means basically that you'll do more time "if you make us take you to trial" so you're penalized for exercising your constitutional right to a jury trial. Another carrot to dangle to get a plea. Just like they use diesel therapy to get a plea. (Yet another waste of taxpayers' money.)

And if I sound bitter it's because my loved one is doing more than twice the sentence he was supposed to get because of relevant conduct. And it's for a non-violent crime where there were no victims. Also, his PSI was full of errors and misinformation which he challenged and it did him no good. We need a better system. Probation isn't doing a good enough job and they cannot be unbiased working for the prosecution.

Posted by: Shelly | Sep 21, 2004 10:35:18 AM

Kudos to you. I think you have hit the nail on the head with this analysis.

Posted by: jim rice | Sep 21, 2004 11:50:01 AM

I am a victime wife. He is in prison for 135 months for not distributing any pseudoephederene. The prosecutor had store owners of Arab discent testify that they never purchased any product from us. Naturally they would not say they purchased this product from us if they were diverting it on the illigal market for profit for who know what. My husband is I am a victime wife. He is in prison for 135 months for not distributing any pseudoephederene. I he prosecutor had store owners of Arab discent testify that they never purchased any product from us. Naturally they would not say they purchased this product from us if they were diverting it on the illigal market for profit for who know what. My husband is innocent. He had a clean record. Never in trouble any trouble. An honest man. He testified in his own behalf and got extra points for perjury. He got points for obstruction of justice. Instead of the detectable amount the indictment stated, which was 2 cases of Mini Thins the prosecutor stated in the PSI that he diverted 85 cases. All in all, the government gave him 32 points. The jury was misled by a DEA agent that may not be the most honest man you could ever meet. Am I bitter? Yes I am. The people in this country are oblivious to the injustices occurring every day in this country. Our system is outragiously unjust. All it does is put more people in jail and their loved one in hell on earth. I am so sorry that this is our system that I am ashamed to be an American.innocent. He had a clean record. Never in trouble any trouble. An honest man. He testified in his own behalf and got extra points for perjury. He got points for obstruction of justice. Instead of the detectable amount the indictment stated, which was 2 cases of Mini Thins the prosecutor stated in the PSI that he diverted 85 cases. All in all, the government gave him 32 points. The jury was misled by a DEA agent that may not be the most honest man you could ever meet. Am I bitter? Yes I am. The people in this country are oblivious to the injustices occurring every day in this country. Our system is outragiously unjust. All it does is put more people in jail and their loved one in hell on earth. I am so sorry that this is our system that I am ashamed to be an American.

Posted by: LaVonda | Sep 21, 2004 11:52:34 AM

LaVonda, have you by any chance been consuming any of your husband's end product?

Posted by: Sekhmet | Sep 21, 2004 12:28:25 PM

Just a point of minor disagreement. I doubt that his tenure as a professor of Administrative Law influenced the proclivities of Justice Breyer as much as his time serving on the U.S. Sentencing Commission.

On the main point, I agree that the skirmish between the views of Justice Scalia representing the majority of five on the one side and Justices Breyer and O'Connor representing the views of the minority on the other is a battle of ideaology: adverserial (jury) versus administrative models (judge bound by the USSG. While the minority certainly have efficiency and practicality on their side, history supports Justice Scalia's statement on the paradigm for criminal justice adopted by the framer's of the Constitution and the Bill of Rights.

If one doubts the importance that not only the framers of the Constitution but the States in ratifying it placed on the importance of a jury, one should read the debates on ratification in the several States and the Madison papers, not just the Federalist Papers. Of the rights protected by the Bill of Rights, only the right of an accused to a jury trial is also specifically guaranteed in the body of the Constitution. Also keep in mind that the Constitution guarantees not just one but two juries in a criminal prosecution: indictment by a grand jury and trial by a petit jury. Those involved in framing and adopting the Constitution and the Bill of Rights were only too familiar by reason of first hand experience with the importance of the jury in protecting citizenry from the awesome powers of the government. Protecting from both potentially vindictive accusation (grand jury) and unjust conviction (petit jury). I know there are those who like to point to the numerical order (a favorite seems to be to point to the First Amendment as being "premier" because of its juxtaposition with the others), with the right to a grand jury being contained in the Fifth and a petit jury in the Sixth. That theory simply does not withstand scrutiny. It overlooks the fact that the Bill of Rights was submitted as a slate of 12 proposed amendments and the first two on the list were not ratified, so the First Amendment was actually third on the list. Except for the Ninth and Tenth Amendments (actually number 11 and 12 on the list), the positioning of the first eight had nothing to do with either their relative importance or desirability. At least that was the opinion of James Madison who just happened to be the individual who introduced the Bill of Rights in and sheperded it through Congress.

The solution is not, however, to place all factors impacting sentencing in either one or the other category. Most of the "offense characteristics" lend themselves quite readily to the adverserial model. On the other hand, following your discussion on Williams, many, if not most, of the factors denominated "relevant conduct" do not readily fit the adverserial model and should be determined under the administrative model. One size simply will not fit all and the trick is to find which shoe fits which foot. In this respect, the expertise and experience of teh USSC will be of substantial benefit. Assuming of course, that Congressional politics do not result in a Feeney repeat!

Posted by: Thomas J. Yerbich | Sep 21, 2004 1:02:46 PM

You people are way to harsh on probation. In my district we don't include things in the psr that can't be supported by the evidence even if the Government wants us to. There's nothing worse than being put on the stand and unable to support the information in a psr that you wrote. If the judge or probation officer doesn't think the evidence supports the enhancement he or she should not apply it. Furthermore with regard to the Blakely case, can you imagine the disparity in sentencing should the Government choose only what guideline enhancement(s) they want to charge. How would a defendant like it if he went up to one floor of the courthouse and a defendant who did basically the same thing and had a similar background went to another in the same courthouse and got a totally different sentence. Guaranteed, it will happen this way if prosecutors have this much control over the sentence. They have a lot of power over it now but relevant conduct helps to diminish this. It will be worse if all enhancements have to be charged and proven beyond a reasonable doubt. The Government will pick and choose what they want to charge based on each individual prosecutors background, workload and independent assessment of the crime. If a defendant exercises his or her right to a jury trial to prove the charges for the underlying offense look out, because the Government will throw every single guideline enhancement that can on you. If a defendant pleads, they will get much less time than a defendant who exercised their right to trial because the person who pled saved the Government time and work and some or all of the enhancements will get bargained away. What may be considered a serious crime in one district may not in another. The guidelines help to alleviate that. If you dont like the punishment or how it is determined don't do the crime in the first place. In my experience I see way more things a defendant should be held accountable for now and aren't than the other way around. Finally, be careful what you wish for because the fix that will subsequently occur will likely be much harsher and unfair to defendants than the current state of affairs.

Posted by: steve | Sep 21, 2004 1:40:40 PM

While the administrative versus adversarial model is interesting, it misses another important factor: that over the last two or three decades, legislatures have removed discretion from judges and given it to prosecutors, and the prosecutors have abused that discretion so they can get re-elected. For all practical purposes, this has eviscerated the checks and balances in our constitutions by seeking to constrain the discretion of judges. This is why, I believe, that indefinite sentencing schemes leaving the judge with unfettered discretion within a given range is acceptable, but a definite sentencing scheme that imposes particular presumptions or mandatory penalties, and requires judges to find facts to address presumptions, is invalid in the Blakely universe. Therefore, the question comes down to what judicial powers may a legislature impose upon an independent judicial branch? A legislature seems to be free to leave judges with nearly unlimited sentencing discretion, but if a legislature wants to limit judicial discretion, the power must be granted to a jury rather than a prosecutor (which of course is an arm of the executive branch).

Posted by: Charles Conliff | Sep 21, 2004 1:42:34 PM

The adversarial system has lots of advantages, particularly as an engine of truth. Unfortunately, in the 97 percent of cases that are resolved by guilty plea, this engine often breaks down. In plea negotiations the truth may be in no party's interest; both may prefer to mislead the court to ensure the agreed upon sentence. A system of sentencing based on plea bargaining is not really an adversarial system; it is a contractual one. That may be fine as long as you don't care about disparity. But Congress and the Commission defined equal treatment as similar sentences for people to commit similar crimes, not reach similar plea agreements. Do we want sentencing to be a search for truth or a market, where the government trades years of liberty for cooperation and waivers of rights?

Truth freak

Posted by: Truth freak | Sep 21, 2004 4:06:37 PM

I agree, Truth Freak, that pleas turn an adversarial system into an administrative one. But the existing USSG has lead to a massive increase in pleas and have, turned sentencing, as you put it, into "a market, where the government trades years of liberty for cooperation and waivers of rights."

If I had confidence that the FSG (or the USSC) would be working against these plea forces, I would be all for uphold the current system and its relevant conduct rules. But all the evidence seems to be running the other way. Perhaps the USSC has evidence that, in fact, the FSG have helped with the plea/market problem. But all the date I see is that the FSG and its relevant conduct rules have made the problems worse.

Posted by: Doug B. | Sep 21, 2004 4:18:07 PM

See also, United States v. Flores-Montano, 124 S.Ct. 1582, 1587. (Breyer, J., concurring) (“Customs keeps track of the border searches its agents conduct, including the reasons for the searches. This administrative process should help minimize concerns that gas tank searches might be undertaken in an abusive manner.”)

Posted by: Federalist No. 84 | Sep 21, 2004 5:56:25 PM

The bottom line is that someone has to make sentencing judgments. We used to think that if we put competent and thoughtful people on the federal bench and gave them lifetime tenure, they'd exercise their discretion and try to impose appropriate sentences in all cases. Congress eventually decided that those on both ends of the bell curve needed to be reined in. So they invented mandatory minimums and put the discretion in the hands of prosecutors. When they began exercising their discretion through charge bargaining, Congress reined them in and put the power in the hands of a politically driven "commission." When they too began to feel the need to allow discretion, Congress took the decision making away from them and just decided to make sentencing decisions itself.

So, what did we end up with? Politicians making critical sentencing judgments for political purposes and often harsh and unjust sentences dictated from thousands of miles away with contempt for any individual characteristics. Just the opposite of what the framers intended in the first place.

The question isn't whether discretion is good or bad because any civilized, albeit imperfect, system requires it. The real issue is who should be exercising it.

Posted by: Alex E. | Sep 21, 2004 8:52:27 PM

Well Steve, let me point out that :

(1) innocent people get convicted of crimes they didn't commit and it happens quite frequently (I hope it never happens to you or a loved one of yours)

(2) some probation officers DO let the prosecutor run the show and put lies and inaccurate information in the PSI

(3) judges let it go through without a hearing-it happened in my friend's case and others that I have learned about since then (see WSJ 9/20/04, both articles on federal sentencing and probation)

(4) no one can know all the laws, people are actually convicted of things they didn't know were illegal--who does your taxes, most have them done by an expert who is knowledgeable about the law, the average person cannot know all of the laws and if they read them wouldn't understand them (so the "knew or should have known" theory should be out the window)

(5) prosecutors already pick and choose what to charge, they over use their discretion to get a plea and overlook or push aside potential charges to get a plea so they don't have to go to trial

(6) prosecutors should have to be upfront about what they will go for in sentencing and what they will bring up and make probation put in the PSI, usually they hide in the grass and spring it on unsuspecting defendants at sentencing

(7) prosecutors do abuse their discretion as Mr. Conliff points out, no prosecutor should have the power currently entrusted to them. Human error makes a good argument for better checks and balances in the system.

(8) My comments stem from the WSJ article of an interview with Ms. Chavez of probation. Read it.

(9) not many get relief from downward departures for good works and when people go to bat for them, mainly upward for matters not proven

(10) relevant conduct does not help diminish the prosecutors power, they use it to their advantage

I not only have a loved one in the midst of this mess, but I have over 20 years of legal experience, so I'm not just mouthing off. I have first hand knowledge of these things.

I'm assuming you work for probation, and I'm sorry you feel everyone is too harsh on probation, but if you can't stand the heat, get out of the kitchen. (Kind of like if you don't want to do the time, don't do the crime!)

Posted by: Shelly | Sep 22, 2004 9:58:48 AM

Shelly:

(1) Approx. 96% of cases in Fed. Court end up in guilty plea. Is the presentence investigator to assume that someone is innoncent after they plead guilty or were found guilty by a jury?

(2)A prosecutor doesnt make a probation officer do anything. Probation officers work for the Court not the Department of Justice.

(3)I though we had sentencing hearings in all cases.

(4) WOW. Are you saying people are prosecuted and convicted because they didnt know they commited a wrong. In cases I see the evidence of a defendant's criminal acts and intent to commit such act is overwelming. Why do you think there are so many guilty pleas.

(5)That is their job. My point in the previous post was if they also had the discretion to pick and choose what guideline enhancements they wanted to prove beyond a reasonable doubt there would be a lot more disparity in sentences.

(6)Prosecutors provide discovery to the defense. The defense should know the guidelines and what will apply as far as enhancements, relevant conduct etc.. Things aren't sprung up at sentencing. The parties have 14 days to object to the psr. If it can't be resolved the judge makes the decision. Most judges get pretty upset if something unexpected happens at sentencing.

(7) I am sure some do. There are bad apples in every profession. Who should be able to charge crimes if the prosecution doesn't?

(8) Haven't read it.

(9) Upward departures from the guidelines nationwide in fed. court happen less than 1% fo the time. Downward departure happen around 34% of the time. See Sentencing Commission Sourcebook. Why should someone get a break at sentencing because someone went to bat for them? Good works can result in downward departure but such must be extraordinary.

(1))Defense attorneys know about relevant conduct. Relevant conduct does not enhance the prosecutors power. Relevant conduct allows defendants to be sentenced for what they actually did and not based on some watered down charge that resulted because of a plea bargain.

I can stand the heat and plan to be in it for a long time.

Posted by: Steve | Sep 22, 2004 2:36:25 PM

Shelly:

(1) Approx. 96% of cases in Fed. Court end up in guilty plea. Is the presentence investigator to assume that someone is innocent after they pled guilty or were found guilty by a jury?

(2)A prosecutor doesnt make a probation officer do anything. Probation officers work for the Court not the Department of Justice.

(3)I though we had sentencing hearings in all cases.

(4) WOW. Are you saying people are prosecuted and convicted because they didn't know they committed a wrong. In cases I see the evidence of a defendant's criminal acts and intent to commit such act is overwelming. Why do you think there are so many guilty pleas.

(5)That is their job. My point in the previous post was if prosecutors also had the discretion to pick and choose what guideline enhancements they wanted to prove beyond a reasonable doubt there would be a lot more disparity in sentences.

(6)Prosecutors provide discovery to the defense. The defense should know the guidelines and what will apply as far as enhancements, relevant conduct etc.. Things aren't sprung up at sentencing. The parties have 14 days to object to the psr. If it can't be resolved the judge makes the decision. Most judges get pretty upset if something unexpected happens at sentencing.

(7) I am sure some do. There are bad apples in every profession. Who should be able to charge crimes if the prosecution doesn't?

(8) Haven't read it.

(9) Upward departures from the guidelines nationwide in fed. court happen less than 1% of the time. Downward departures happen around 34% of the time. See Sentencing Commission Sourcebook. Why should someone get a break at sentencing because someone went to bat for them? Good works can result in a downward departure but such must be extraordinary.

(1))Defense attorneys know about relevant conduct. Relevant conduct does not enhance the prosecutors power. Relevant conduct allows defendants to be sentenced for what they actually did and not based on some watered down charge that resulted because of a plea bargain.

I can stand the heat and plan to be in it for a long time.

Posted by: Steve | Sep 22, 2004 2:41:04 PM

Steve, you missed the point.

1. Just because you're found guilty by a jury doesn't mean you did the crime. Innocent people are convicted everyday. Check the stats. It's not a presumption of innocence, it's using common sense. I understand probation's hands may be tied by the guidelines but that's why they need to be changed. Nothing should be subjective, it should either be provable or left out.

2. Prosecutors have input, they should NOT. Their work was done with the plea or the conviction. Probation should rely on the record or the plea agreement, not the prosecutor's opinion. They cannot and will not be objective.

3. Those are open and shut. No one listens to the defense. When an objection to the PSI is filed, a separate hearing should be set to handle that and it should be cleared up before the sentencing hearing. Nothing in a PSI will ever surprise the prosecutor but frequently does the defense.

4. I'm saying there are laws that make criminals out of people. Not everyone intentionally commits a crime. Not all inmates are Bonnie and Clyde types. For example, felons are being released all the time on new DNA evidence. There are so many guilty pleas because too many of them are with court appointed attorneys who are part of the good ole boy system and just want to make a deal and move on to the next chump. Not many can afford a "good" attorney who won't tolerate being pushed through the system just to get a conviction. Who can afford a trial with a privately retained attorney? I've also seen people prosecuted for income tax fraud who truly did not know they were doing something wrong (thank God they were not convicted, but it took a jury trial at great expense to them to accomplish it). We all know the tax laws are prohibitive and frightening at best. That's where the "should have known" comes into play. Not all crimes are "intentional." If you violate the law, yes you should pay the price, but not OVER pay.

6. Prosecutors make offers and in those offers (I've seen them) agree to recommend lower sentences and not bring up certain factors for the promise of a plea. Don't tell me that if they can do it at that point, that those enhancements HAVE to be added at sentencing. If they are relevant at one point, they should be relevant all the way through the process. For example, a gun charge with lawful and sporting purposes carries a lower sentence but in a plea offer they use that carrot to get a plea, stating that if it goes to trial that break goes out the window which means a higher sentence. If the gun was for lawful and sporting purposes at plea why not through a trial? (You shouldn't be penalized for exercising your constitutional right to a trial.)

7. It's not an issue of who charges, it's the games they play (see 6). They overlook evidence all the time to get a plea.

8. You should read it, if you're with probation then it should interest you.

9. Upward departures happen far more than that. Obviously you haven't been watching all the Blakely fallout and the projected number of cases this could affect. I don't know what district you're in, but I've seen numerous sentences in the recent past, all with upward departures. Again, look at the WSJ article on federal sentencing and you'll see several nightmares there.

10. While defense attorneys may know about relevant conduct, prosecutors don't always show their entire hand. I've seen several that came out of left field. One which added 46 months to a sentence. Three federal public defenders admit they didn't and couldn't have seen it coming. The prosecution sat on it and didn't raise it until they fed the info to probation for the PSI. Relevant conduct is a crock and should not be used in sentencing. There are guideline sentences for every crime, and other than for exceptional cases and prior criminal history, there should not be relevant conduct enhancements. What the sentence is should be "what it is."

Those doing the PSIs cannot be objective when they are paid by the feds, working for the feds and being handfed information by a prosecutor that isn't a "proven fact." If you're not convicted of it, you shouldn't do time for it. There's no other way to say it. Justice is not being served with the current guidelines.


Posted by: Shelly | Sep 22, 2004 6:44:52 PM

Shelly:

Upward departures don't happen more than that. What do you consider an upward departure? You obviously don't know what one is. Adding in enhancements like two points for a gun is not an upward departure. It now might implicate Blakely (we will have to wait and see) if the defendant didn't stipulate to it but it is not a departure. If a court believes the evidence suports those points and uses them to determine the guideline range but then sentences higher than the upper end of that guideline range that is an upward departure.

In my 14 year career and I have written well over 1,000 psrs I have probably recommended 2-3 upward departures. I can remember one that involved a defendant who had 43 criminal history points. Sixteen or more puts you in the highest criminal history category there is. Another one I recommended involved a defendant who on a spree of a couple days robbed over 20 banks. Another was a sex offender who bound and tortured women while committing his crimes. I have also recommended downward departures.

I take offense to anyone who says because your a fed you can't be objective. Why is that? My job is to be objective and an independent investigator for the court. If I didn't do that I would be fired. Many times I feel like probation is the only voice of reason in the entire system. Federal public defenders are paid by the feds. In fact, they are usually the best and most knowledgeable attorneys with regard to the guidelines. Most private attorneys don't deal with them enough to even know what they are doing. I have seen them show up in court or call me with questions and they don't even own a guideline manual.

Relevant conduct should be used. Say someone robs a bank and then while eluding police crashes and seriously injures a child on the street. He pleads just to bank robbery. Should he get the same prison time as someone who just robbed a bank and gives up before fleeing. In my opinion no. The fleeing from police and hurting someone is relevant conduct to the robbery. See 1B1.3 (Relevant Conduct) and 3C1.2 (Reckless Endangerment). Before the guidelines most judges probably would have added more time on to the person who fled and hurt the child anyway. The guidelines are just a methodology and structure for things that always have been considered by judges when sentencing. Without guidelines you penalty for bank robbery is anywhere from probation - 20 years. A judge might give a defendant probation while another judge might give a similar defendant 20 years. Before the guidelines a defendant who got the 20 year sentence couldnt even appeal since the sentence was within the statutory range. Sentences within the statutory range are now appealed all the time challenging application of the guidelines.

Probation doesn't rely only on the prosecutor. The prosecutor has input as well as the defense attorney, defendant and others. Case agents are also interviewed. Probation has approximately 35 days to to a psr and many times entire investigations by the case agent take years. However, we will look at everything and make our own independent judgement on the facts we have gathered. Defense can object to the psr as well as the prosecution. Judges rule in favor of the defense all the time.

The bottom line, if it applies you apply it given guidance from the guidelines and the caselaw in the circuit you are in. If it doesnt apply you dont add the enhancement. That is the law as it exists. Its not probation's fault. They didnt write the law.

Another thing, sounds like you want to put all power in the hands of the prosecutor by letting him or her decide the sentence based on what he allows the defendant to plead to. Fine, but as you mentioned before, some may abuse their discretion and be unreasonable while some may be lazy and not do their job. Prosecutors can somewhat control the sentence by letting a defendant plead to certain things but cross references and relevant conduct and specific offense characteristsics many times kick you to another guideline.

How do these games you say prosecutors play effect probation. If these prosecutors tell a defendant something pre-plea than back out later so what. Probation will apply or not apply based on what really happened. We dont work for the Dept. of Justice and simply apply the guidelines as they are written and in accordance with the law in the applicable circuit

In 14 years I really dont remember any defendant telling me they didnt know they were committing a crime. That is just plain B.S. Do you really think these people didnt know they were doing anything wrong, got caught on the first time and the government actually took the time, effort and money to prosecute them. I will note that I have drug mules tell me all the time that they knew the were doing something illegal, but didnt know for sure what.

Many times things in the psr will surprise the Government. The government doesnt know a defendant's criminal history and many times prosecutors miscalculate the guidelines. Sometimes there will be info. regarding a downward departure or upward departure the prosecution didnt contemplate.

Probation doesnt stick with the plea agreement. The apply the facts of the case to the law as it is written. I have written numerous reports where I have come out higher than what the government agreed to and the government sticks by their lower sentence since they are bound by their plea agreement. I have also written numerous reports where I am lower than the government and they want something higher but the judge goes with me. I have also recommended downward departures that were strongly opposed by the Government.

Once a defendant comes in for a psr he is guilty. He either pled or was convicted by jury. It is not probations job to say he is innocent at that point.

Those WSJ articles were interesting. I have no problem with the article that Chavez was interviewd for. The other article seemed to indicate that probation applied all these enhancements and that was the final word. The judge is the final word, not probation. The enhancements probably appled and that is the law. That article involved some very unusual cases and nothing that happens frequently. I would venture to guess there are alot of other facts also missing.

Posted by: Steve | Sep 22, 2004 11:36:51 PM

Steve,

If someone commits a crime (like the one you referenced) in the commission of another crime, they should be charged with it and if convicted or they plead guilty to it, then sentenced for it. If not, they shouldn't serve time for it. That clearly violates our constitutional rights.

What is the advantage of a plea bargain and a dismissal of charges if you still end up doing time for it?

I have no problem with someone doing the appropriate amount of time for a crime, especially those whose crimes where there are victims who are physically injured. But, if a prosecutor plea bargains away a charge, the defendant shouldn't serve time for it.

Call it what you will, upward departure or enhancement, if you aren't CONVICTED of it or you don't PLEAD GUILTY to it, you shouldn't serve time for it. I'm referring to "relevant conduct."

Define "facts."

Prosecutors should know the law and check out the criminal history of a defendant and know going in, just as you say defense counsel should. There should be no surprises to either side then.

You are unique in that most do not and will not recommend downward departures (or if they do no one tells the defendant). In fact, prosecutors do influence those situations and should not. Judges need more ability than they currently have to recommend downward departures also.

Any offense is only worth so much time I don't care what your past shows. Our system is too overcrowded and underfunded, as I'm sure you know. The sentences are too extreme and far exceed any other civilized country. It's time to get back to some common sense.

I realize probation is just doing their job, but again you have the human factor. I'm sure many of you (not necessarily you) make judgments about people all the time, subconsciously. You can only deal with the facts and I mean provable, documented, relevant facts, not supposition. And don't tell me that doesn't happen. It's called being human.

Posted by: Shelly | Sep 23, 2004 9:27:25 AM

Shelly:

The Supreme Court has yet to say that an enhancement like Reckless Endangerment mentioned in my previous post violates a defendant's constitutional rights. I know that could possibly change in the near future, but I doubt it. From what I understand the State of Washington system is entirely different the the Fed. system. The Judge in Washington, based on an aggravating factor, kicked a defendant up into a whole new set of higher statutory provisions based on that aggravating factor. I can see that being a problem. However, other than drug statutes most of the other federal statutes aren't set up that way. As far as the drug statutes Apprendi keeps a defendant from being kicked up into a whole new set of higher statutory ranges based on drug quantity. Most of the time Apprendi doesnt really effect anything anyway since the lowest statutory range for say cocaine is up to 20 years and many times the guideline range is less than that 20 years even if drugs are included that the defendant didnt stipulate to.

Advantage to a plea bargain many times is basically a recommendation by the Government for 3 points of for acceptance of responsibility and a sentence at the low end of the guidelines. You might say that isnt a big deal but when you get higher on the sentencing table that can make a huge difference maybe as much as a 100 months or more. Also, sometimes as part of a plea agreement the government will not file an 851 enhancement in a drug case based on a defendant's prior drug connviction that could effect the sentencing tremendously. Lots of time the Government will file a different charge as part of the plea agreement that caps of the guidelines thus controlling the sentence. Many times they will dismiss a count that requires a consecutive sentence or one with a mandatory minimum. They could also recommend safety valve or other downward adjustments like minor participant. There are other advantages a plea agreement can be to the defendant as well.

Again, you want the Government to control every aspect of sentencing. Why do you think this is good. Some prosecutors will just pound a defendant then while others will sell the farm. At least as it is now there is some oversite and uniformity.

Prosecutors and defendants dont always know the law. Most prosecutors at least where I work are not that knowledgable with regard to the guidelines. Usually case agents dont collect criminal history information for the prosecution. Therefore, they don't know the extent of a defendants criminal history and neither does the defense. Resources prohibit this.

I dont disagree that judges should have more flexibility to depart.

I disagree strongly that a persons past shouldn't be taken into account in imposing sentence. History is the best predictor of the future. A person who has a prior murder conviction and has just been released from prison and sells drugs should get a greater sentence for selling the drugs than a person who sells the drugs with no history. How would you like it if you were the defendant with no priors and you heard that a convicted murderer got the same sentence as you for the same crime. Also people with violent crimes in their past should be locked up longer to protect the community. As a citizen that is how I want it as well as most of the people I know.

Posted by: Steve | Sep 23, 2004 10:35:02 AM

Steve,

I think we'll just have to agree to disagree and move on. Obviously we are at different points on the spectrum (I'm on the defense end and you're in between defense and prosecution somewhere). However, I do respect your opinion and have read your comments thoroughly.

I hope at some point you can step outside your profession and see where I am coming from. I'm not saying someone is violating or not following current policy, I'm saying it's not as good as it could be. I do feel strongly that the guidelines can be saved they just need to be amended so they don't violate anyone's constitutional rights.

Incarceration past a certain point serves no useful purpose in non-violent and white collar crimes. I certainly do not want a mass murder or child molester running free, but our prisons are clogged with non-violent offenders who can be out with their families, working and paying taxes. They don't need to be a burden on society. That's my loved one's situation and there are many similarly situated who are in camps and low/minimum security who are not a threat to society but because of the guidelines are serving far too much time, costing us all more than is necessary.

Thanks for your comments.

Posted by: Shelly | Sep 23, 2004 5:32:52 PM

Shelly:

I dont disagree with alot of your last post. Its not all the guidelines fault. Congress passes very stiff sentencing laws with mandatory minimums and such, particularly drug cases now also child porn cases. More are coming. Statutes always trump the guidelines. You could have a guideline range of say 24-35 months but because of a statute that says for instance the minumum you get is 5 years that is what the defendant will get (5 years). The judge has no discretion to go lower than the minimum required by statute, unless safety valve in a drug case or a substantial assistance motion that can only be filed by the government. A judge can't make the government file this type of motion.

I just basically just took offense to your inference that probation was some type of devil, screwing the whole system. Also that they were an arm of the Dept. of Justice. I tell Govt. attorneys to stick it where the sun doesn't shine all the time. A lot of times I dont agree with defense attorneys as well. My judges value my opinion, but they will still do what they deem appropriate given the law and such. I agree the guidelines can be to harsh at times but many times they really are very lenient, especially with regard to white collar crimes when compared to other crimes like a drug offense. The Sentencing Commission has made some strives in correcting this in recent years.

What I am concerned will happen with this Blakely deal if ruled to be applicable to the Federal Guidelines is that mandatory sentences will be set for every crime. If this happens they will be very harsh and not give a judge the discretion to give someone a lower or higher sentence based on a defendant's past, good works etc... That would not be good. All that would do would place all of sentencing in the hands of the prosecutor. Just in my district prosecutors vary alot as to what they deem is serious or not. They also make decisions based on their workload.

Some people do make mistakes and if such a system with mandatory sentences were in place that would not be good. Repeat offenders who commited another crime would get the same sentence as a first time offender who committed the same crime. The crime they pled to would be up to the prosecutor. They would control everything. No use in having any judges who could look at a defendants history.

With regard to this Blakely deal, if the Supreme Court does apply it to the fed. guidelines Congress will fix it and it will most likely be harsher than what is in place now. Who thinks they can get re-elected if they want to go softer on crime. Most of the public doesnt want that so they are going to do what gets the most votes. Sorry but that is just how it is.

Posted by: Steve | Sep 23, 2004 9:20:32 PM

I am a MSW gradute student and mother of two. My fiance', and father of my children has been awaiting sentencing for the past five months, after accepting a guilty plea for conspiracy to distribute crack cocaine. He was arrested in October 2003 on a warrant,but the incident he was supposedly involved in happened in 2001. He was riding in a vehicle with two other guys, one of the guys got out of the car, and was arrested under the driveway with drugs in his possession. My fiance' and the other guy were not arrested b/c they did not get out of the car. His case consists of several grandjury statements against him by people with previous records,stating that they had dealings with him,and the fed. govt. claims to have been building a case against him, which was thrown out b/c of lack of evidence and time-span. There was never any physical evidence against him, and he's never had a criminal record. His privately paid lawyer initially told him they could go to trial b/c all the fed.'s had were a lot of grandjury statements, and my fiance' really wanted to go to trial, but was convinced to do otherwise, b/c tis would be in his best interest. But, after meeting with the prosecutor several times, his tunes began to change, so he encouraged my fiance' to take a plea, and testify in a case against another person not directly related to his case, plus the fact that he has alredy served almost a year, just awaitng trial and sentencing. I am hoping that all of these factors will decrease his time. The initial grams were 46, but were some how increased to over 200, once the probation officer noted that there had to be at least 50g to be a conspiracy. There are a lot of disrepencies in his case, that are too lengthy to discuss, not to mention that the narcotics Sgt.'s nephew was involved, in my opinion making it a personal issue for him to pursue. I guess you would have to be from Alexandria, La. to be aware of all of the injustices that exist. Anyway,I did not have the time nor the money to seek additional help regarding a thorough investigation or a lawyer not easily intimidated, but I did file a complaint against his lawyer for misrepresentation. The judge keeps rescheduling the sentencing dates b/c he claims to be awaiting a blakely supreme court ruling that could affect his sentencing time. My main concern is will this ruling positively or negatively affect my fiance's sentence, or will he be affected at all since he accepted a plea. I would also like to add that it really bothers me that so many people are arrested and convicted on word of mouth and not on concrete evidence. I'm not saying that people don't do bad things or don't deserve to do time for their crimes, but I am saying that I feel as though solid, physical evidence should take precedence over everything, and if it's not there why waste time and money. I don't see how someone who has a long criminal history can be credible enough to give statements against someone else. I don't think the system should consist of a cycle of one person telling on another to get his time decreased, or to make a case for the federal govt. What are some detectives and prosecutors getting paid for if they can't get out there and provide concrete evidence, instead of finding snitches to make their case. Anyway,That's another story. I'm really concerned about my fiance' coming home to our kids. I hope that this has served as a learning experience for him, and that he is a given a second chance. Just wanted to receive feedback on my thoughts, as well how blakely could possibly affect my fiance's situation.

Posted by: Curious | Sep 23, 2004 11:39:48 PM

I am a MSW gradute student and mother of two. My fiance', and father of my children has been awaiting sentencing for the past five months, after accepting a guilty plea for conspiracy to distribute crack cocaine. He was arrested in October 2003 on a warrant,but the incident he was supposedly involved in happened in 2001. He was riding in a vehicle with two other guys, one of the guys got out of the car, and was arrested under the driveway with drugs in his possession. My fiance' and the other guy were not arrested b/c they did not get out of the car. His case consists of several grandjury statements against him by people with previous records,stating that they had dealings with him,and the fed. govt. claims to have been building a case against him, which was thrown out b/c of lack of evidence and time-span. There was never any physical evidence against him, and he's never had a criminal record. His privately paid lawyer initially told him they could go to trial b/c all the fed.'s had were a lot of grandjury statements, and my fiance' really wanted to go to trial, but was convinced to do otherwise, b/c tis would be in his best interest. But, after meeting with the prosecutor several times, his tunes began to change, so he encouraged my fiance' to take a plea, and testify in a case against another person not directly related to his case, plus the fact that he has alredy served almost a year, just awaitng trial and sentencing. I am hoping that all of these factors will decrease his time. The initial grams were 46, but were some how increased to over 200, once the probation officer noted that there had to be at least 50g to be a conspiracy. There are a lot of disrepencies in his case, that are too lengthy to discuss, not to mention that the narcotics Sgt.'s nephew was involved, in my opinion making it a personal issue for him to pursue. I guess you would have to be from Alexandria, La. to be aware of all of the injustices that exist. Anyway,I did not have the time nor the money to seek additional help regarding a thorough investigation or a lawyer not easily intimidated, but I did file a complaint against his lawyer for misrepresentation. The judge keeps rescheduling the sentencing dates b/c he claims to be awaiting a blakely supreme court ruling that could affect his sentencing time. My main concern is will this ruling positively or negatively affect my fiance's sentence, or will he be affected at all since he accepted a plea. I would also like to add that it really bothers me that so many people are arrested and convicted on word of mouth and not on concrete evidence. I'm not saying that people don't do bad things or don't deserve to do time for their crimes, but I am saying that I feel as though solid, physical evidence should take precedence over everything, and if it's not there why waste time and money. I don't see how someone who has a long criminal history can be credible enough to give statements against someone else. I don't think the system should consist of a cycle of one person telling on another to get his time decreased, or to make a case for the federal govt. What are some detectives and prosecutors getting paid for if they can't get out there and provide concrete evidence, instead of finding snitches to make their case. Anyway,That's another story. I'm really concerned about my fiance' coming home to our kids. I hope that this has served as a learning experience for him, and that he is a given a second chance. Just wanted to receive feedback on my thoughts, as well how blakely could possibly affect my fiance's situation.

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