August 10, 2004
Last One Standing
Post from Ron:
As Doug noted in an earlier post, Judge Cassell is hearing arguments in United States v. Weldon Angelos about the interaction between mandatory minimum sentences and the Blakely decision. Given that federal sentencing law comes from many sources -- not just the Sentencing Reform Act of 1984 -- it is worth asking exactly what laws we mean when we discuss "severability."
To add to the amicus brief in the Angelos case posted earlier, I've now received the brief filed by defense attorney Jerome Mooney. A link for downloading appears below. The brief frames the issue this way:
The single question then presented by the Court’s resent request is whether in the 20 years of legislative action following the implementation of the guideline system and its integrated sentencing system, minimum mandatory sentencing provisions, and particularly those encompassed in 18 U.S.C. 924( c) have become an integrated and dependant part of that system such that they rise or fall with the constitutionality of the system as a whole.
The traditional argument at the heart of the brief is that the Congress in 1984 intended to create an integrated system for sentencing. The brief also breaks some new ground in pointing out that some mandatory minimum statutes (especially 924(c)) have been amended often over the years in ways that suggest Congress thought of the laws as part of an integrated sentencing system, rather than crime-specific "overrides" of the guidelines system.
Setting aside the constitutional and statutory interpretation questions, it would be truly abhorrent as a policy matter if the only component of federal sentencing left standing were the mandatory minimum penalties.
Ain't that a shame
The Ninth Circuit rendered an interesting (non-Blakely!) sentencing decision on Monday: in US v. Gementera, Ninth Circuit Judge Diarmuid O'Scannlain (joined by Sixth Circuit Judge Eugene Siler Jr., sitting by designation) upheld a sentence by US District Judge Vaughn Walker which, as a condiction of supervised release, required convicted mail thief Gementera "to spend a day standing outside a post office wearing a signboard stating, 'I stole mail. This is my punishment.'"
The defendant argued that the "sandwich board condition violates the Sentencing Reform Act," as well as the First, Fifth, Eighth, and Fourteenth Amendments. In a wide-ranging opinion that broadly addresses theories of punishment and academic literature on shaming sanctions, Judge O'Scannlain rejected all of the defendant's complaints. Here's a key concluding paragraph:
[W]e hold that the condition imposed upon Gementera [is] reasonably related to the legitimate statutory objective of rehabilitation. In so holding, we are careful not to articulate a principle broader than that presented by the facts of this case. With care and specificity, the district court outlined a sensible logic underlying its conclusion that a set of conditions, including the signboard provision, but also including reintegrative provisions, would better promote this defendant’s rehabilitation and amendment of life than would a lengthier term of incarceration. By contrast, a per se rule that the mandatory public airing of one’s offense can never assist an offender to reassume his duty of obedience to the law would impose a narrow penological orthodoxy not contemplated by the Guidelines’ express approval of "any other condition [the district court] considers to be appropriate."
Ninth Circuit Judge Michael Hawkins filed a passionate dissent which asserted that "public humiliation or shaming has no proper place in our system of justice." The opinion cited this interesting article on the theory of shaming punishments, by Dan Markel.
The opinions in Gementera are thoughtful and provocative, and they cover both theortical, academic and caselaw highlights concerning shaming sanctions. I am already thinking about using the case in my sentencing class this fall, if only to break up the Blakely discussion. However, I cannot help but consider even this decision in the light of Blakely for two reasons:
(1) the concepts and doctrines of supervised release — which were created by the Sentencing Reform Act and are the focal point of debate in Gementera — are legal in doubt if the entire federal guidelines/SRA scheme is deemed unconstitutional after Blakely. (Recall, though, that the Ninth Circuit in Ameline decided that the unconstitutional portions of the guidelines were severable from the rest of the system);
(2) the opinions in Gementera reveal how thoughtful — and yet perhaps how indeterminate — appellate review of sentences can be when appeals courts are only required to explore "whether the sentencing judge imposed [a sentencing term] for permissible purposes, and ... whether [that term is] reasonably related to the purposes." Many urging a move to a true "guideline" system after Blakely contend that appellate review would still be viable and valuable within such a discretionary system. The opinions in Gementera could arguably support, and yet also arguably refute, claims about the value of appellate review within discretionary sentencing systems.
August 9, 2004
Full Mooney en banc hearing
Doug commented earlier on the players involved in the Mooney case, and pointed out the opinion's cryptic statements about waiver and severability. It will now be interesting to see whether and how the passage of a few weeks or months — and very eventful weeks and months in every circuit — will sharpen the Eighth Circuit's analysis.
Addition from Doug:
Though the order to take Mooney en banc vacates the decision by (two members of) the Mooney panel declaring the guidelines unconstitutional and (generally?) non-severable, I do not believe the Eighth Circuit has (yet) voted to consider en banc the "companion" decision of US v. Pirani (details here).
Thus, technically speaking, there is still precedent in the Eighth Circuit holding that at least portions of the federal sentencing guidelines are unconstitutional. Perhaps Pirani will soon be taken en banc as well, or perhaps district courts in the Eighth Circuit can still march to their own beat as did Judge Bataillon in US v. Swan, 2004 U.S. Dist. LEXIS 14883 (D. Neb. Aug. 2, 2004) (details here). Whatever the case, following the bouncing precedent in the Eighth Circuit remains quite a task.
P.S.: Ron's post title got me thinking that perhaps the Eighth Circuit is just suffering from Full Moon(ey) Fever, and I noticed that the great Tom Petty album Full Moon Fever has more than a few song titles that could reasonably be used to describe various aspects of the post-Blakely world.
Luna and R.E.M. are humming in Philadelphia
Post from Ron:
Professor Erik Luna, on the law faculty at University of Utah, today published this op-ed in the Philadelphia Inquirer. After noting that the Supreme Court granted cert in Booker and Fanfan, Luna has this reaction: "I can't help humming the refrain from R.E.M.'s 1987 rock ditty: 'It's the end of the world as we know it, and I feel fine.'" Luna points out that the disruptive Blakely doctrine should be seen, above all, as an opportunity to address a system that had serious problems. Here's his short prescription for change:
A constitutionally sound and morally just solution would start all over, creating real guidelines that guide rather than dictate and permit the entirety of an offender's situation and his offense to be taken into account. This would not mean a punishment free-for-all. Trial judges would have to provide written explanations for their application and/or deviation from sentencing principles, always subject to appellate review. They might be guided by a computer database of information about previous criminal cases.
Although the Supreme Court's Excellent Sixth Amendment Adventure has indeed created much turmoil, there is truly a chance for us to come out on the other side with an improved system.
Monday To-Do List: Revise Federal Sentencing Laws
Post from Ron:
Ah, Monday morning. Time to survey the wreckage on the desktop from last week, clear a little new space, draft a fresh To Do List: "(1) answer email, (2) revise draft article, (3) rewrite federal sentencing system in light of Blakely."
I've got good news for you on this last task. Larry Kupers, a former assistant federal public defender in the Northern District of California, formerly the Federal Public Defenders’ visiting counsel to the United States Sentencing Commission, currently completing a temporary duty assignment with the Office of Defender Services of the Administrative Office of the United States Courts, has drafted a short article proposing a long-term vision for a restructured system. Larry is willing to share his current draft through this blog, so you can find the link below.
The ideas in this draft are subtle and interesting. This is not a stop-gap repair, but a new system that would take significant legislative effort. It goes beyond the idea that the guidelines should remain advisory within the broader statutory ranges.
Instead, the system that Kupers envisions involves several interlocking elements that do not resemble current law very closely at all:
(1) The Sentencing Commission (not the Congress) should select a "base guideline range" within the statutory minimum and maximum, a fairly wide "base range" that will determine the outcome for a majority of cases based only on the charge of conviction.
(2) The judge can depart down from this range, based on reasons that can be reviewed for reasonableness on appeal.
(3) The judge can depart up based on a limited number of statutory "enhancements" (Kupers suggests 10), to be alleged in the indictment and proven at trial, much in the manner of current firearms enhancements.
(4) The Sentencing Commission should issue truly voluntary guidance to the courts on how to select sentences within the broad base guideline range, and how much to depart.
What can we anticipate would happen to various pieces of this proposal as it works through the legislative mill?
August 8, 2004
Week in Review
Post from Ron:
There has been more than enough turmoil in sentencing this summer, but we are finally getting a few days every now and then to catch our breath. In these short respites, it is worth reviewing recent events and asking about any patterns that have begun to form.
There are a few stories from the past week that are especially telling for me. Coming into the week, we already knew a lot about the profusion of positions that federal courts were taking, with different nuances on questions of constitutionality and severability. But this past week told us something about the prospects for the near- and mid-term in both the states and the federal courts.
The Vera Institute report (available here) diagnosed the potentially broad spread of Blakely effects within the states. The effects are indeed wide, reaching many states, but they might not become very deep. The Minnesota Commission report (available here), coupled with early returns from North Carolina (background here) suggested that the number of cases affected, even in truly presumptive guideline states, could remain quite small. On the other hand, there are some wildly expansionist possibilities, if Blakely reaches probation revocations, juvenile waivers into adult court, or calculations of criminal history that go beyond the simple fact of a past conviction (such as custody status at the time of the current crime).
And finally, the O'Daniel case from the Northern District of Oklahoma might point the way to a stable set of practices for plea negotiations and the waivers that judges will accept or not accept. The opinion (linked here) is worth another read as we think over the next few weeks about our direction.
What is it about the even circuits?
Perhaps it is something in the coffee, but it seems that the "even" circuits keep acting odd in our new Blakely world. The Second Circuit has been curious and clever through its recent order trying to freeze Blakely cases (details here), following up its prior efforts to certify Blakely questions to the Supreme Court (details here). The Fourth Circuit has now kept us waiting a week for opinions to explain and support its opaque order in Hammoud recommending "alternative" sentencing (background here and commentary here). And the action in the Eighth Circuit has been fast and furious and often hard to completely fathom (latest news with links to all the action here).
Of course, the Sixth Circuit has also had its role in this story, with an initial panel decision declaring the guidelines wholly unconstitutional (details here) that was then vacated en banc only five days later (details here). And I expected the Sixth Circuit to get back in the action this week with a scheduled en banc hearing planned for Wednesday.
But I was surprised to just discover that the Sixth Circuit in fact got back into the action, indirectly, through an unpublished opinion handed down last week in US v. Springs, 2004 U.S. App. LEXIS 16265 (6th Cir. Aug. 4, 2004). Though the opinion for the court in Springs never even mentions Blakely, the court affirms a sentence imposed under the federal guidelines that depended greatly on (contestable) judicial factfinding. Especially because the Springs opinion is unpublished, it should not be read as a definitive ruling on the post-Blakely status of the federal guidelines in the Sixth Circuit. Nevertheless, it is both interesting and a bit disconcerting that the Sixth Circuit is issuing an opinion which reads as if Blakely never happened — though Judge Moore, dissenting in part, does obliquely note that the case was argued before Blakely and that the "parties may wish to explore what effect, if any, that decision has on the instant case."
Word on the Street in NC
Post from Ron:
I spoke earlier this week with the prosecutors in an urban office in North Carolina about Blakely, and their comments fit in fascinating ways with the observations of the Minnesota Sentencing Commission (background here). As in Minnesota, the basic structure seems to be holding water, and the number of affected cases is pretty small. Basically, these prosecutors were not terribly worried about Blakely in the short run. Although the case will almost surely prevent all "aggravated range" sentences (the North Carolina equivalent of upward departures), those were only 7% of the sentences imposed last year. For high-volume crimes like drugs or property offenses, it is simply not worth the effort right now to move from the presumptive range (say, 16 to 20 months) up to the aggravated range (say, 20 to 24 months). Volume, combined with the limited benefits of upward adjustments, convince most prosecutors not to bother with new techniques to obtain jury findings.
That being said, there are two settings that might prove more worrisome for these prosecutors in the future. First, they anticipate filing superseding indictments and perhaps asking for bifurcated jury proceedings in homicides and serious violents crimes, because the potential upward adjustments to sentences are much larger here. And second (consistent with comments from Minnesota), they believe that the "custody status" point (see background memo by Robert Farb linked here) will be important to them in a fairly large number of cases, where the extra point can bump a defendant into the next highest criminal history category.