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September 1, 2004

And the briefing begins...

I have on good authority that two amicus briefs have already been filed in Booker and Fanfan. One is reportedly on behalf of "an ad hoc group of former federal judges in support of neither party," and the group apparently consists of 19 former judges. Unfortunately, I do not (yet) have an electronic copy of that brief.

I do have a copy linked below of the other brief, which is in support of the petitioner and comes from three noteworthy US Senators: The Honorable Orrin G. Hatch, The Honorable Edward M. Kennedy and The Honorable Dianne Feinstein. The brief's statement of the question presented should give you a flavor for its contents:

Whether, or to what extent, the Court should give effect to the intent of Congress in enacting the Sentencing Reform Act of 1984 to eliminate the intolerable disparities that had plagued the federal sentencing system by creating an integrated and cohesive sentencing guidelines system.

Download booker.senate.amicus.pdf

Though I have to dash to class and then a faculty meeting, I hope to have more information about all of today's briefing (and also more documents for downloading) before the close of business today.

UPDATE: With thanks to many "field correspondents," I now have and provide below the Solicitor General's brief in Booker and Fanfan. More briefs will be posted if and when I get them, and commentary will be posted in the wee hours.
Download sgs_booker_and_fanfan_brief.pdf

MORE: With thanks to another "field correspondent," I now have and provide below the USSC's brief in Booker and Fanfan.
Download ussc_amicus_brief_booker_and_fanfan.pdf

September 1, 2004 at 02:40 PM | Permalink

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» Let The Blakely Briefing Begin!!! from ACSBlog: The Blog of the American Constitution Society
On September 1, 2004, opening briefs in U.S. v. Booker and U.S. v. FanFan were filed with the Supreme Court. The Supreme Court agreed to consolidate and hear these cases, on an expedited manner, to help resolve the chaos created... [Read More]

Tracked on Sep 2, 2004 5:15:35 PM

» Let The Blakely Briefing Begin!!! from ACSBlog: The Blog of the American Constitution Society
On September 1, 2004, opening briefs in U.S. v. Booker and U.S. v. FanFan were filed with the Supreme Court. The Supreme Court agreed to consolidate and hear these cases, on an expedited manner, to help resolve the chaos created... [Read More]

Tracked on Sep 2, 2004 5:19:22 PM

» Let The Blakely Briefing Begin!!! from ACSBlog: The Blog of the American Constitution Society
On September 1, 2004, opening briefs in U.S. v. Booker and U.S. v. FanFan were filed with the Supreme Court. The Supreme Court agreed to consolidate and hear these cases, on an expedited manner, to help resolve the chaos created... [Read More]

Tracked on Sep 3, 2004 7:48:28 AM

Comments

The Senators' amicus brief provides an excellent recap of the history of the Sentencing Reform Act and its intended remedial effect. Notably absent from the Senators' amicus brief is any discussion whatsoever of the Sixth Amendment, in fact it is not even mentioned! It does not really address why Blakely is inapplicable. To accept the arguments on upholding the USSG advanced, one must assume either that the Sixth Amendment is not implicated or that a bipartisan majority Congress and the President can suspend the Constitution. I doubt that the Supreme Court will accept either assumption.
The most that can be said of the brief is that it makes a fairly strong pitch for non-severability in its argument that Congress did not intend for the sentencing factors to be determined by a jury instead of a judge and, presumably would not have enacted Sentencing Reform if that were included. While the jury question may have been suggested in testimony but Congress did not include it, to arrive at the conclusion that Congress would not have enacted Sentencing Reform if it were included takes quite a quantum leap in deductive reasoning. [The fact that the brief reflects the views of three members of the Senate Judiciary Committee does not, however, give it any greater weight given the existing rule that statements of individual members of Congress are not indicative of legislative intent.] It seems, at least on its surface, to advance an "all or nothing" approach. If Blakely is applied to the USSG, the entire Sentencing Reform Act must fall. But please don't apply Blakely.

Posted by: Thomas J. Yerbich | Sep 1, 2004 4:52:19 PM

The Senators brief also seems to threaten with the possible costs of implementing Blakely into the guidelines (apparently saying, if you force this on us, there will be no guidelines).

Posted by: Tom Lincoln | Sep 1, 2004 5:01:20 PM

The Senators' amicus brief also seems to threaten with the possible costs of implementing Blakely into the guidelines (apparently saying, if you force this on us, there will be no guidelines).

Posted by: Tom Lincoln | Sep 1, 2004 5:01:52 PM

The Solicitor General's brief spills much ink (or toner?)in what appears to be a somewhat tepid halfhearted argument to differentiate the USSG from the Washington "statutes" at isue in Blakely. Read it in its entirety, that part of the brief all but concedes that it is a distinction without a substantive difference. Most revealing is the candor with which the Solicitor General acknowledges the degree of control Congress retains over the USSG. After reading that part of the brief, one has to wonder how the Solicitor General can refer to the Sentencing Commission as "independent." As for the assertion that it is performing traditional judicial functions in a collective manner overlooks the fact that a majority of the commissioners can no longer be Federal judges. In fact, if one reads carefully the PROTECT Act amendment to Sec. 991(a), there is no longer a requirement that any member of the Commission be a Federal judge! [Language change from "At least three of the members shall be Federal judges" to "Not more than three of the members shall be Federal judges." Oh, I suppose that one would say that there must be at least a token Federal judge on the Commission.] Since a majority of the Commission may not by law be Federal judges, it is hard to state with a straight face or not biting one's tongue that the Commission is simply a judicial body carrying out traditional judicial functions. I wonder if the Solicitor General would be making the same argument if Congress had placed this "Independent Commission" with the same powers, functions, and Congressional control in the Department of Justice instead of as part of the Judiciary? [Nothing compelled Congress to make the Commission part of the judicial branch.] There would be no change in its function, but it would certainly strip it of any semblance of a judicial body.
The argument that the USSG, unlike the Washington statutes, can not be understood to create multiple statutory sentences is simply not supported by the arguments advanced. As Professor Bowman noted, the differences alluded to by the Soclitor General, if anything, make the USSG more vulnerable to application of Blakely. What appears to be missing is a coming to grips with the fact that Blakely did nothing more than supply a definition for "statutory maximum" as used in Apprendi. The Solicitor General acknowledges that from the outset it was unanimously held by the Courts of Appeal that Apprendi applied to federal statutes. The only difference now is that the prior "understanding" of what was meant by the term "statutory maximum" changed. Whatever its form, one must acknowledge that the substance of the Sentencing Reform Act was to create multiple statutory sentences. To term the U.S. Sentencing Commission an independent body overlooks reality. In fact and in practice, the USSC serves approximately the same function as do the advisory committees in Federal rule making. Congress has said in no uncertain terms to the USSC: "We delegate to you the function of creating sentencing guidelines and they will be mandatory BUT only if after you submit your propsed guidelines to us we deem them acceptable. If we do not deem them acceptable, we will write our own." Assuming, as we must at this point, that Apprendi/Blakely are correct interpretations and applications of the Sixth Amendment, to argue that if Congress were to enact the USSG directly it would violate the Sixth amendment (a point the Solicitor General appears to concede) but if Congress were to "delegate" that function to a commission, which it totally controls, would not is indeed mind boggling.
The Solicitor General, like the Senators, makes a strong argument against severability. However, as Professor Bowman observed, how does one make guidelines that are merely advisory in nature work? And if the entire USSG and with it the rest of the Sentencing Reform Act, where is there any authority for "advisory" guidelines?
It seems to me that Blakely may have become the Brer Rabbit's tar baby of federal sentencing. The more we try to push it away, the more stuck with it we become.

Posted by: Thomas J. Yerbich | Sep 1, 2004 7:40:59 PM

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