September 11, 2004
USSC's views about severability??
After many brief-related posts on the applicability of Blakely to the federal sentencing guidelines (see, e.g., posts here and here and here; see also Hammoud post here), this weekend I am starting to focus on the Booker and Fanfan briefs' approach to the even tougher issue of severability.
Though a lot more severability analysis will follow in this space (and follow-up my preliminary discussion here), my first observation here concerns the disconcerting absence of any severability analysis or discussion in the US Sentencing Commission's brief. The USSC's brief stresses it is an "independent" agency which spends all its time and energy analyzing sentencing decisions and data (cf. Jason Hernandez's effective post examining the USSC's brief). Given its own claims about its institutional role and work, the USSC should have the most informed and the most thoughtful perspective on the guidelines' ability to operate without judicial fact-finding of sentence enhancing facts. At the very least, one would hope and expect the USSC could figure out, and would make public, roughly how many federal sentences turn on judicial fact-finding of sentence enhancing facts. (Recall that, as detailed here, at least one Commissioner has publically opined that ''eighty percent of the cases in the whole country are unaffected" by Blakely.)
Moreover, the Solicitor General's brief asserts that "the severability analysis must take into account the intent of the Sentencing Commission." SG Brief at 45-46. If this is so, shouldn't we hear the intent of the USSC straight from the USSC? The SG's brief makes a number of representations about the Commission's intent, but remember that the SG is a party in Booker and Fanfan with a necessarily biased perspective on such issues.
My guess is, based in part on this report from Tony Mauro, that the USSC could not internally reach a consensus view on the tough issue of severability (or, dare I suggest the possibility, perhaps the USSC is working on a brief in support of the respondents on this issue). But, whatever the realities surrounding the USSC's legal (non)position on severability, I think the USSC undermines its own description of its institutional role and work if it does not soon disseminate at least some preliminary data about how many federal sentences in fact turn on judicial fact-finding of sentence enhancing facts.
Ohio v. Scheer: a Rosetta Stone for sentencing reform?
I have previously discussed at length the fascinating challenges of figuring out what Blakely's formal rule might mean for Ohio's functional sentencing laws (see posts here and here and here). Yesterday, I found an intermediate Ohio appellate court decision, Ohio v. Scheer, 2004 WL 2008628 (Ohio App. 4 Dist. Sept. 1, 2004), which is fascinating for both Blakely and non-Blakely reasons. (Strangely, the decision is dated September 1, but only first appeared on-line yesterday.)
Though a fairly run-of-the-mill case, I think Scheer could be seen as a Rosetta Stone of sentencing reform. So many insights might be drawn from the case's facts and the court's ruling, careful study of the decision could, like the famed stone of Rosetta which helped scholars better understand the meaning of Egyptian hieroglyphics (background here and here), help scholars better understand the dynamics and challenges of modern sentencing reform. Let me try to explain.
Scheer involved appeal of a "sentence to the maximum, consecutive term of twelve months imprisonment for each of two counts of passing bad checks." Those familiar with Ohio law already can see how the case raises at least two Blakely issues, since a sentencing judge in Ohio must make certain findings before imposing a maximum term and also before imposing consecutive sentences. Adding to the intrigue, Scheer's two conviction followed a plea bargain in which "the State dismissed the remaining two counts of the indictment [which alleged more serious felonies] and agreed to recommend a sentence of community control sanctions if Scheer made full restitution to the victim in the amount of $89,698.81 prior to the sentencing hearing." If Scheer did not make restitution prior to sentencing, the State recommend six months on each count and a court order of restitution. The case thus also raises interesting questions about the impact of prosecutorial discretion and the use of alternatives to incarceration.
The story of Scheer goes on: "Scheer failed to appear at the original sentencing hearing, and was subsequently arrested on a warrant issued by the court. At the time of the sentencing hearing, Scheer had not made restitution." The court then — after making lengthy on-the-record statements referencing the seriousness of the dismissed counts, that the "Defendant has a lengthy and extensive criminal history ... and shows no genuine remorse concerning his actions herein," that the "victim in this case has suffered substantial economic harm," and the "purposes and principles under 2929.11 of the Ohio Revised Code," — concluded that Scheer "is not amenable to available community control sanctions." Based on all these consideration, the trial court thus "sentenced Scheer to twelve months incarceration on each count, the maximum sentence for a fifth degree felony, and ordered that the sentences run consecutively. The court also ordered Scheer to make full restitution to the victim."
The defendant in Scheer objected to some of the sentencing court's findings regarding his criminal history and lack of remorse, and thus the case raises a range of consequential Blakely procedural issues. And, of course, the judge's sentencing decision implicates broader substantive questions about consideration of "dismissed" conduct, criminal history, victim harms, lack of remorse, and "purposes and principles."
In an extremely thoughtful and yet still opaque ruling, the appeals court in Scheer rejects the defendant's Blakely claim, though without addressing every possible Blakely issue. The court also rejects the substance of the defendant's other legal and factual challenges to the sentencing court's decision. However the appeals court still reverses and remands Scheer's sentence with a ruling that raises questions about the importance of written sentencing findings and appellate review. According to the appeals court, the sentencing court's findings were not sufficiently linked to its final sentencing determination:
Although the court made the requisite findings, it did not state the rationale or reasons that support those findings for either the maximum or consecutive sentences. The court made certain factual findings when it determined that community control sanctions were inappropriate and imposed a prison sentence; however, the court never indicated that it was relying on some or all of these findings in imposing maximum or consecutive sentences.... While we recognize that it might seem we are elevating form over substance as the court's reasons for imposing the sentences might be gleaned from the transcript as a whole, the Supreme Court of Ohio has indicated that it will require strict compliance with the provisions of the sentencing statutes. Since the trial court did not specify which of its findings it relied upon in imposing maximum and consecutive sentences, we must reverse and remand this matter to the trial court for further action consistent with this opinion.
Media analysis of Blakely
Though we are still in the calm before the media storm I expect to see around the Booker and Fanfan arguments next month, there is still much important and insightful media coverage of the Blakely story in various quarters.
For excellent coverage of state sentencing developments, this article discusses Blakely's impact in North Carolina (covering cases noted here), and this article reviews Blakely's impact in Washington state and documents that in "three separate cases, three different Superior Court judges gave contrary rulings on" Blakely. In addition, this article notes Blakely's potential impact in a significant juvenile "bind-over" ruling in which a state judge determined that a 12-year-old accused murderer could be tried in adult court.
Relatedly, I now have had a chance to read the full text of Benjamin Wittes' article on Blakely to appear in the October 2004 issue of The Atlantic Monthly (available here to subscribers). I think the piece is both sensational and a bit sensationalized.
The Atlantic piece is sensational for appreciating the scope and importance of the ruling. In the piece, Wittes draws comparisons to Roe v. Wade and Brown v. Board of Education, and I don't think it is inappropriate to put Blakely in such company. I suggested two months ago in my Slate article that Blakely could prove to be the biggest Supreme Court criminal justice decision ever. Of course, only time and subsequent developments will tell Blakely's place in legal history; but what I have seen in the last few months only reinforces my view that Blakely is as big as it gets.
Yet, the Atlantic piece is also a bit sensationalized for some of its hyperbolic descriptions of the consequences of the Blakely ruling. For example, the piece suggests that Blakely will "guarantee leniency for criminals in as many as 270,000 federal cases" and also asserts that "it's almost inevitable that the decision will either make sentencing guidelines unacceptably rigid or loosen them to the point of meaninglessness."
Though I am sure many defendants and defense attorneys would love to believe that Blakely is a guarantee of leniency for so many, readers of this blog know that some federal defendants have actually received longer sentences after Blakely, and not a single defendant has yet convinced a federal court to apply Blakely retroactively. Moreover, I do not think it is inevitable (or even likely) that Blakely rings a death knell for effective sentencing reform.
In fact, as Justice Kennedy in this dramatic speech and the ABA in this recent report have emphatically documented, there is no reason to believe we had truly effective sentencing reform in the federal system before Blakely. Thus, I think the Blakely decision merits at least some praise for invigorating a (long overdue) national conversation about sentencing policies, practice and procedures.
September 10, 2004
Be careful what you wish for
Because of the mobius strip features of the post-Blakely world, many have repeated in various contexts the old cliche warning "Be careful what you wish for." I have previous suggested that the warning seems appropriate in response to arguments that Blakely is just an application of (and not an extension of) Apprendi. As discussed here and here, that argument might keep federal courts from having lots of sentencing headaches in federal direct appeal cases, but then may produce different and greater headaches for these courts when dealing with state habeas cases.
In another arena, the decision yesterday in US v. Mutchler, 2004 WL 2004080 (S.D. Iowa, Sept. 09, 2004), provides another object lesson in "Be careful what you wish for." At the same time that DOJ has been arguing that Blakely is inapplicable to the federal guidelines, it has also been "Blakely-izing" indictments. (See Ron's post here about amended Blakely-ized indictments in the Enron prosecutions, and note here that the Comey memo urged this double-barrel post-Blakely strategy.)
But, in Mutchler, US District Judge Robert Pratt faced a defense motion to strike allegations of aggravating factors in a Blakely-ized superseding indictment. And Judge Pratt was so moved:
The Court considers the Defendants' arguments persuasive and finds that the aggravating factors within the Superseding Indictment are prejudicial surplusage....
The Government argues the addition of the aggravating factors is proper in the current uncertain post-Blakely v. Washington sentencing environment.... The Government's concerns are understandable.... [But] Defendants argue, since the aggravating factors are not properly offenses against the laws of the United States ..., this Court lacks the subject matter jurisdiction over the matters asserted in the aggravating factors.
The Court agrees that the aggravating factors are not criminal conduct defined by Congress and, as such, have no place within the charging documents against the Defendants.... As a part of guidelines meant to act as procedural rules for the court, the aggravating factors do not provide sufficient authority to bring the allegations contained within them properly before a trier of fact in a United States courtroom.
The Government's concerns about the Defendants' possible windfall in the form of a reduced sentence are genuinely placed. However, the scenario in which the Guidelines are found unconstitutional as applied to the present case is still, technically, suppositional. What is not suppositional is that the presence of the aggravating factors within the charging documents as they now exist is unconstitutional.
There is a lot more rich analysis in Judge Pratt's opinion, and the decision reinforces for me that the warning "Be careful what you wish for" might suitably be given to both prosecutors and defense counsel these days.
Different view of deep structural arguments
As discussed here, Judge J. Harvie Wilkinson's concurrence in the Fourth Circuit's Hammoud ruling provides a fascinating "separation of powers" argument for why Blakely does not apply to the federal guidelines.
Professor and FSR editor Aaron Rappaport has just completed a draft of an article — entitled "What the Supreme Court Should Do: Save Sentencing Reform, Gut the Guideliens" — which provides another and quite different perspective on these deep structural issues and their impact on the applicability of Blakely in the federal system. This article (which can be downloaded below) will be forthcoming in the next issue of the Federal Sentencing Reporter (FSR's second rapid-fire issue covering Blakely). Here's a taste:
I argue ... that a principled rationale for the Supreme Court's Apprendi and Blakely decisions can be identified, a rationale that provides a basis for distinguishing the two kinds of sentencing regimes, at least in some circumstances. At the same time, this analysis does not imply that the federal sentencing system necessarily withstands constitutional scrutiny. Rather, the more nuanced understanding of Blakely and Apprendi generates a specific test for evaluating whether administrative schemes survive review. It is a test the federal sentencing guidelines may not pass, at least absent significant restructuring.
This analysis provides a preliminary attempt to ground the Apprendi and Blakely decisions on deeper constitutional values. It does not aspire to be comprehensive and, in the press of time, the discussion passes over some important issues quickly. Nonetheless, my hope is that this effort will encourage further debate about the logic of the Court’s decisions.
More big Blakely news from Colorado
As noted here, the Colorado Supreme Court earlier this week announced its intention to examine whether Colorado's sentencing scheme can survive Blakely. As that court gears up for this issue, a Colorado intermediate appellate court in People v. Solis-Martinez, 2004 WL 2002525 (Colo. App. Sept. 09, 2004), has now officially identified Blakely problems in the operation of Colorado's sentencing provisions.
The court in Solis-Martinez, after providing a brief account of Colorado's sentencing statutes, explains how the case facts raise a Blakely problem and how waiver claims cannot remedy that problem:
Here, in imposing the sixteen-year sentence [following the defendant's guilty plea to criminally negligent child abuse], the trial court relied on its findings that the child was in extreme pain for a long time, that defendant waited so long to take the child to the doctor, that she punished the child because of her circumstances, and that she had continually lied about the events leading to the child's injuries. The court further recorded its findings supporting the aggravated range sentence in a written supplement to its sentencing order that reflected in more detail the information that appeared in the presentence investigation report. However, under Apprendi and Blakely, a sentence beyond the relevant statutory maximum may be imposed only if a jury has determined the aggravating factors or the defendant has admitted them.
In so concluding, we disagree with the People's contention that defendant waived the right to a jury determination of the aggravating factors by pleading guilty to the charged offense. No aggravating factors were charged in the information, and defendant did not stipulate to any. She was not advised that she had a right to have a jury determine any aggravating factors. Therefore, her guilty plea cannot be interpreted as a waiver of her right to have a jury determine factors exposing her to greater punishment than otherwise authorized by the sentencing statute.
Non-Blakely news from the First Circuit
The First Circuit still has not yet officially weighed in on Blakely's applicability to the federal guidelines. But, somewhat disconcertingly, the First Circuit in unpublished rulings (noted here and here) seemed to be trying hard to limit the opportunity for certain defendants to raise Blakely claims.
Yet news from the First Circuit in a non-Blakely case has restored my faith in that court's balanced concern for the rights of federal defendants. The court in Goldings v. Winn, No. 03-2633 (1st Cir. Sept. 3, 2004), strongly rejected the government's statutory arguments for a new policy limiting federal inmates' eligibility for placement in a community corrections center. Though legally intricate, Goldings is, according to folks involved directly in federal sentencing proceedings, a very potent and important ruling as the first appellate decision concerning, in the words of the court, a "change in policy [that] has generated a flood of lawsuits in the federal district courts." TalkLeft has some additional helpful explanation of the case here.
September 9, 2004
I am back in the Buckeye state and so very grateful to Congresswoman Maxine Waters and her wonderful staff for allowing me the opportunity to participate in today's panel discussion on federal sentencing at the Congressional Black Caucus Foundation's 34th Annual Legislative Conference in Washington DC (background here).
As I anticipated, I learned a tremendous amount from my fellow panelists and also from the audience on a range of critical issues. Much of the discussion focused on federal mandatory minimum sentencing — and included the exciting news that Congresswoman Waters will soon introduce a bill proposing to eliminate certain mandatory penalties in some non-violent drug cases. But the discussion also canvassed other federal and state sentencing issues. For example, I was disconcerted to hear about New Jersey's severe racial disparities in its prison population from New Jersey's Attorney General Peter C. Harvey, but I was encouraged to hear that New Jersey has a new commission now reviewing the state's sentencing policies and practices. (Background on New Jersey state sentencing realities can be found here, and details about the new New Jersey commission and its challenges are here and here.)
Though I could go on at length about the particular insights shared by other panelists — so many important points were made by The Honorable Ruben Castillo, The Honorable Terry Hatter, Julie Stewart, and Nkechi Taifa — the collective insight I took away from the event concerned how different the sentencing world and the possibility for meaningful reform looks depending upon one's experiences and perspective.
Sadly, I got the feeling that perhpas naive optimism fuels my own belief that Blakely has created an historic moment for historic rethinking of modern sentencing policies and practices. Both the substance and tone of many comments from those working in DC left me with an impression that meaningful sentencing reform seems much more possible when considered from the ivory tower than from inside the Beltway.
More on Hammoud and other Blakely news
With the help of a business center at the DC Convention Center, I am pleased to be able to get a "blogging fix" before heading to this exciting event. (As if it was not already obvious, I am clearly addicted to this medium, though I blame Blakely (or perhaps just Justice Scalia) for turning me into such a junkie.)
I had a chance to re-read the Fourth Circuit's decision in Hammoud in transit today, and another review of all the brilliant features of the all the judges' fascinating opinions has my mind racing with so many additional thoughts --- e.g., (1) all of the Blakely bickering perhaps is (or at least should be) really a debate over the requirements of the Due Process Clause at sentencing; (2) it seems defendant Hammoud received an extra 150 years' imprisonment based on the testimony of a single questionable witness who was, according to Judge Gregory, "described throughout the trial as untrustworthy, manipulative, a liar and an exaggerator"; (3) it is really fun to watch smart and sassy judges trade smart and sassy rhetoric in footnotes (compare Wilkinson concurring at fn. * with Motz dissenting at fn. 4). Perhaps I will get a chance (much) later tonight upon my return home to add more words on these and related topics.
In the meantime, Howard Bashman of How Appealing here has some of the daily Blakely news stories, and Jason Hernandez of the Blakely Blog here returns to his helpful daily round-up of Blakely developments. In addition, Jason has here a trenchant analysis of the SCOTUS amici brief filed by three Senators in Booker and Fanfan, which I discussed at length here.
Must stop, big day ahead...
Despite having already done three lengthy posts on the Fourth Circuit's Hammoud decision (available here and here and here) there is still a lot more to say — I have not yet even mentioned the "alternative sentencing" part of the majority's decision (which triggered a partial dissent by Judge Widener) or the thoughtful dissents.
But I must call it quits for the night because I have a big day tomorrow. As noted in the flyer here, I was lucky enough to be invited by Congresswoman Maxine Waters to participate on a panel at the Congressional Black Caucus Foundation's 34th Annual Legislative Conference in Washington DC.
The planned Judiciary Issue Forum is intended to cover an array of sentencing reform issues from mandatory minimums to Blakely. I expect to learn a lot from my fellow panelists, who include The Honorable Ruben Castillo (US Sentencing Commission), The Honorable Terry Hatter (US District Judge of the Central District of California), The Honorable Peter C. Harvey (New Jersey's Attorney General), Julie Stewart (President and Founder, Families Against Mandatory Minimums), and Nkechi Taifa, Esq. (Senior Policy Analyst, Open Society Institute). But if I am going to be able to contribute intelligently at all, I better get some sleep.
I doubt I will get to blog much, if at all, from the road tomorrow, but I should be back with more on Hammoud and other developments before long.
The power of separation of powers?
Judge J. Harvie Wilkinson's concurrence in the Fourth Circuit's Hammoud ruling provides a fascinating "separation of powers" arguments for why Blakely does not apply to the federal guidelines. Though I will need to re-read Judge Wilkinson's rich opinion to appreciate all it is saying, I think I have the basic logic: (1) the judiciary made the federal guidelines, (2) reading Blakely to require proof of guideline factors to a jury beyond a reasonable doubt converts these factors into de facto elements of new crimes, (3) but only the legislature can properly create and define crimes.
This is interesting logic, though it raises almost as many questions as the majority opinion in Hammoud (discussed here). First, though the US Sentencing Commission is nominally in the judicial branch, I have highlighted before that the USSC both in design and in operation is far more like, in Justice Scalia's words, a "junior-varsity Congress" than just a group of judges making sentencing standards for themselves. Second, given that the courts have consistently and widely held that the Ex Post Facto Clause applies to changes in the guidelines (see SG Brief at 25), haven't the courts already concluded that the guidelines do create de facto elements of new crimes?
Finally, I think there is a "through the looking glass" quality to this separation of powers argument, especially given the Framers' apparent interests in democratic checks and balances and in safeguarding individual rights through the Bill of Rights. The implication of Judge Wilkinson's argument, as I understand it, is that if and when Congress creates binding sentencing laws though traditional legislative means (securing approval by both houses and signature by the President), then defendants have the benefits of full constitutional procedural rights during the enforcement of those laws. But if and when a legislature finds a way to writing binding sentencing laws through a non-legislative means (e.g., creating an agency whose rules will be legally binding despite never being traditionally enacted), then defendants have fewer procedural rights in the enforcement of those laws. Whatever one thinks of structural constitutional arguments, I doubt the Framers (or Justice Scalia) ultimately imagined that defendants would get less procedural rights in the application of those laws that are created in less democratically accountable ways.
"Statutory" analysis in Hammoud
Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here) puts great emphasis on the use of the phrase "statutory maximum" in Blakely and Apprendi, and he thus finds Blakely inapplicable to the federal guidelines because they are not statutes. In Wilkins words, "Blakely applies to the guidelines only if the Blakely Court redefined the term 'statutory maximum' to include any fact that increases a defendant's potential sentence." But, says Wilkins, "[o]n close examiniation of Blakely, we conclude that the Supreme Court simply applied — and did not modify — the rule articulated in Apprendi."
Though I suppose this is a plausible reading of the Blakely decision, on close examination it raises a lot of questions. First, of course, if the Fourth Circuit is reading Blakely properly, one must wonder why Justices O'Connor and Breyer made so much of a fuss in their Blakely dissents. Obviously, given the energy they spend lamenting the apparent demise of the federal guidelines, Justices O'Connor and Breyer obviously thought Blakely was modifying the rule in Apprendi.
Second, a close reading of Justice Scalia's opinion in Blakely reveals that after the key passage (at slip op. 7) where Justice Scalia (re)defines "statutory maximum," he does not once use that apparently critical phrase again in the final 10 pages of his opinion for the Court. Instead, Justice Scalia speaks of "what state law authorized" (slip op. 8), and not "what a state statute authorized"; he speaks of the "jury's traditional function of finding the facts essential to lawful imposition of the penalty" (slip op. 13), not of the jury's role "finding the facts essential to statutory imposition of the penalty;" he speaks of a defendant's "legal right to a lesser sentence" (slip op. 13), not of a "statutory right to a lesser sentence;" he speaks of "all facts legally essential to the punishment" (slip op. 17), not of "all facts statutorily essential to the punishment." In other words, if Justice Scalia and the others in the Blakely majority were trying not to modify the meaning of Apprendi, the Court's opinion should have been crafted much more carefully.
Finally, as suggested here and here, the Fourth Circuit's conclusion that Blakely "simply applied" Apprendi may have some significant retroactivity consequences. The opinion in many ways intimates that the holding in Blakely was dictated by Apprendi (see p. 66: "in Blakely the Court simply applied the rule of Apprendi to a new set of facts "). But as these recent North Carolina rulings document, at least one Fourth Circuit state has a statutory sentencing guideline system just like the one declared unconstitutional in Blakely. After Hammoud, do all North Carolina prisoners who received enhancements and had not-yet final convictions in June 2000 (when Apprendi was decided) now have strong claims for Blakely relief in the federal courts (even if the state courts won't grant such relief)?
So much to say, so much to say...
In addition to ensuring fans of the Dave Matthews Band will now visit this blog, the title of this post accurately describes both the Fourth Circuit's opinions in Hammoud — all 145 pages — and my own feelings about commenting on the Fourth Circuit's work in Hammoud. Let me here do some preliminary commentary, and allow later posts to zero in on various specifics.
First, let me apologize for giving the Fourth Circuit so much grief about taking so long to issue this opinion. I was not aware that there were so many serious and challenging non-Blakely issues that the court had to confront in Hammoud. (The Blakely discussion does not even start until page 48!) I am still a bit troubled by the court's decisions to rush out an opaque Blakely order and take over a month to provide more guidance, but the complicated legal circumstances in Hammoud make this procedure a bit more understandable.
Second, let me note that the author of the main opinion in Hammoud, Chief Judge William W. Wilkins was the original chair of the original US Sentencing Commission that drafted the original guidelines. Also, as we saw in the Koch en banc ruling from the Sixth Circuit, the Hammoud decision is the near judicial equivalent of a "party-line vote." If my calculations are correct, all three judges joining the Hammoud dissent were appointed by a Democratic President (assuming Judge Gregory is counted as a Clinton appointee), while seven of nine judges finding Blakely inapplicable to the federal guidelines were appointed by Republican Presidents.
Third, let me highlight that, no matter what one thinks about Blakely and its applicability to the federal guidelines, the basic facts of Hammoud's sentencing have to give one pause. As Judge Motz rightly stresses at the start of her dissent, Hammoud's sentence without reliance on facts found by the judge by a preponderance would have been 57 months. But judicial fact-finding required under the federal guidelines led the district judge to increase Hammoud's sentence of less than 5 years to a sentence of 155 years!
September 8, 2004
The 4th Circuit Speaks!!
Perhaps proving the old saying "be careful what you wish for," my long-standing wish to see what the Fourth Circuit has to say to explain its order in Hammoud has been granted with this 145 pages opinion! No wonder it took a while to write (it will likely take a while just to download it). Here is the complicated line up:
Chief Judge Wilkins wrote the opinion, in which Judges Wilkinson, Niemeyer, Williams, Traxler, King, Shedd, and Duncan joined and in which Judge Widener joined as to all except Part VII.C.
Judge Wilkinson wrote a concurring opinion. Judge Shedd wrote a concurring opinion. Judge Widener wrote a concurring and dissenting opinion. Judge Motz wrote a dissenting opinion, in which Judges Michael and Gregory joined. Judge Gregory wrote a dissenting opinion.
Analysis to follow late tonight.
Major Blakely ruling in Oregon
I previously noted here a newspaper article in which a state defense lawyer called Blakely's implications for Oregon state sentencing "absolutely enormous." Showing yet again how insightful defense lawyers can be, today in State v. Sawatzky, No. 0003-32189 (Or. Ct. App. Sept. 8, 2004), an Oregon Court of Appeals concluded that under its state sentencing laws "upward departure sentences violate the Sixth Amendment to the United States Constitution under the rationale set forth in Blakely."
Sawatzky is a great read in part because it provides a fine summary of Oregon's sentencing guidelines scheme and in part because it articulates the holding in Blakely in this interesting way:
Blakely makes it clear ... that Sixth Amendment analysis under Apprendi is not dependent on legislative intent. That is, the Court did not view as relevant that the Washington legislature, in enacting the sentencing guidelines, intended that courts rather than juries would act as finders of facts that justify "exceptional sentences," even though the Washington guidelines, like the Oregon guidelines, leave no doubt that that was the legislative intent. The Court, in fact, rejected the notion that legislative labeling of "elements" to be found by a jury and "sentencing factors" to be found by a judge could provide the necessary distinction required by the Sixth Amendment....
The Court has made clear in Blakely that a "statutory maximum" sentence for purposes of the Sixth Amendment is not something that, by mere legislative directive, can encompass a sentence enhancement that is based solely on judicial factfinding.
Pragmatism and Blakely's retroactivity
An important sub-plot of the Booker and Fanfan cases is whether and how the Supreme Court's clarification of the meaning and reach of Blakely could impact claims about Blakely's retroactivity. As suggested here, I think the nature and structure of the government's argument to exempt the federal guidelines from the Blakely rule could support claims that Blakely was not a "new rule" and thus must apply to all state convictions not yet final when Apprendi was decided in June 2000.
Of course, Blakely's retroactivity is not formally in front of the High Court in Booker and Fanfan, and none of the briefs are likely to address directly the complicated legal issues surrounding retroactivity. Nevertheless, as suggested by my posts on retroactivity here and here, pragmatically speaking the impact of Blakely on past state sentences is probably more consequential than Blakely's impact on current federal sentences (especially because, as federal district judges know well, constitutional challenges to state criminal judgments always find their way to federal courts through habeas actions).
Contributing to these pragmatic realities is the recent observation made by Senior US District Judge Milton Shadur in US v. Rodriguez, 2004 U.S. Dist. LEXIS 17661 (N.D. Ill. Sept. 1, 2004), that " it is obvious that the prison grapevine has been operating overtime to suggest to long-ago-sentenced prisoners [that they] can somehow draw comfort from the Supreme Court's decision in Blakely." The Rodriguez case highlights that what the Supreme Court says in Booker and Fanfan, whether or not it impacts the legal realities of retroactivity claims, will indisputably impact some perceptions of retroactivity claims.
I raise all the points simply because, whatever one thinks of the principles and doctrines of retroactivity, it is fascinating to contemplate whether and how these pragmatic considerations should influence the thinking of the Justices in Booker and Fanfan. These issues also reinforce my view discussed here that institutions other than courts ought to be getting to work on these important retroactivity questions.
Blakely back in the headlines
After an interesting hiatus in media coverage, the reporters are back on the Blakely story. And today we get interesting views on divergent efforts to handle federal sentencings until greater guidance on the guidelines' constitutionality comes from the Supreme Court.
Specifically, this article from Indiana provides more background on ND Indiana Chief Judge Robert Miller's decision to deny the local US Attorney's motion seeking to delay all sentencings. And this editorial from the Munster Times praises Judge Miller's decision saying "justice should not be delayed."
But then this article reports on Mississippi US District Judge David Bramlette's decision to continue all of his federal sentencing cases "until the Supreme Court has given some guidance on Blakely." And this article, while suggesting that New Jersey US District Judge Anne E. Thompson may delay the sentencing of a former financial advisor Alexis Arlett, canvasses different perspectives on this period of Blakely uncertainty and notes that "for Arlett's victims, any more delay is likely to be met with skepticism."
Meanwhile, this article discusses more broadly the post-Blakely challenges for federal prosecutors in Pennsylvania, and this article details how state prosecutors in Washington are struggling with the Blakely aftermath. And this article notes how Blakely might have an impact on the upcoming federal sentencing of Frank Quattrone, the investment banker convicted of obstructing a government probe.
In addition, new commentary on Blakely, Booker and Fanfan can be found on Findlaw, which has thoughtful pieces by Professor Vikram Amar and commentator Ed Lazarus. And though Benjamin Wittes' article on Blakely for the October 2004 issue of The Atlantic Monthly requires a subscription to retrieve on-line, here you can see a snippet of the article and a contributor's quote that Blakely is "the single most irresponsible decision in the modern history of the Supreme Court."
September 7, 2004
Re-start your sentencings in Indiana
Though this news is now a bit dated, with all the recent SCOTUS briefing activity I just noticed this weekend that Chief Judge Robert Miller of the US District Court of Northern Indiana denied the request by local US Attorney Joseph Van Bokkelen for a district-wide stay of all sentencings until the US Supreme Court decides Booker and Fanfan.
The details of the interesting stay motion filed last month can be found here, and Marcia Oddi at the The Indiana Law Blog has the highlights of the motion's denial here. In addition, this newspaper article discusses the denial of the motion, while this article reports on a Blakely-impacted sentencing in the Northern District of Indiana right after the motion was denied.
Mile High Blakely
Though I have note yet seen a lower court opinion from Colorado grappling with Blakely's meaning for that state, this Denver Post article long ago blared in its headline that the Blakely "Ruling Could Nullify Sentences in Colorado." And now a thoughtful reader reports that the Colorado Supreme Court today announced its intention to examine whether Colorado's sentencing scheme can survive Blakely in the case of Lopez v. Colorado, No. 04SC150. According to the e-mail I received:
This case on which it granted certiorari deals with the mandatory aggravating factors of the defendant's being on parole, in prison, or an escapee from prison at the time of the crime. (In Colorado, the law sets a "presumptive sentencing range." The trial court may sentence the defendant to twice the maximum of this range if the court finds mandatory aggravating facts listed in the statute, or the court, in its discretion, finds other "extraordinary aggravating circumstances" that are not listed in the statute.)
While I ponder whether it is funny to describe the Colorado Supreme Court as the (Mile) High Court, you can read below the text of the court's order:
Whether Blakely v. Washington, 541 U.S. __, 124 S. Ct. 2531 (June 24, 2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000) prohibit the aggravation of petitioner's sentence because the statutory enhancement factors, defined in section 18-1-105(9)(a)(II) and section 18-1-105(9)(a)(V), were never charged in an information nor pled to by petitioner.
Judging through the Blakely/blogsphere lens
A fascinating (side) story in the whole Blakely saga has been the amazing lens it creates for questions of judicial roles and responsibilities. I have not had much time to blog about these matters, though I have discussed briefly here the interesting and questionable use of "unpublished" opinion to address consequential Blakely issues.
Helpfully, some fellow bloggers are zeroing in on some of these interesting judging subjects. For example, Chris Geidner at Law Dork has this great post which, in a sense, defends the Sixth Circuit's Koch opinion on "judging" grounds. The whole post deserves attention, but I especially liked this pithy summary of Koch: "The Sixth Circuit ruling means: Let the Supreme Court be the tailor."
Similarly, Ken Lammers over at CrimLaw has this interesting post linking what he calls anti-Blakely positions to anti-Exclusionary Rule arguments. With rhetorical force, Ken contends: "The purpose of both [arguments] is to give theoretical cover to acts which in practice violate the constitution. It's asking the court to accept Plessy style reasoning in a Brown world."
The Blakely earthquake hits North Carolina
In what I believe are the first two cases from the North Carolina state courts dealing with Blakely, today in State v. Speight, 2004 WL 1960082, (N.C. App. Sept. 07, 2004) and State v. Allen, 2004 WL 1960333 (N.C. App. Sept. 07, 2004), two different appellate panels found, without much hesitation, that Blakely rendered unconstitutional aspects of North Carolina's state sentencing system.
In Speight, the court minced no words in identifying the Blakely problem and in rejecting the government's argument that a Blakely error should be deemed harmless:
Defendant received two consecutive aggravated sentences of a minimum of twenty and a maximum of twenty-four months for involuntary manslaughter and a consecutive aggravated sentence of twelve months for impaired driving. As the jury did not decide the aggravating factors considered by the trial court, defendant's Sixth Amendment right to a trial by jury was violated. See Blakely.
Nonetheless, the State argues that under a harmless error analysis, defendant's sentences should be upheld. However, as explained in State v. Allen, "[o]ur Supreme Court has definitively stated that when 'the [trial] judge [has] erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing.'" Accordingly, we grant defendant's motion for appropriate relief and remand this case to the trial court for resentencing consistent with the holding in Blakely.
In Allen, the court more fully discusses how the provision for imposing "aggravated sentences" in North Carolina "appears substantially similar to the portion of Washington's criminal sentencing statute analyzed in Blakely." Interestingly, according to the Allen court, state lawyers in North Carolina have been conceding after Blakely that aggravated range sentencings constitute a violation of a defendant's constitutional rights. (This apparently proper concession of Blakely's reach by North Carolina lawyers of course stands in sharp contrast to what we are seeing from federal lawyers in the federal courts, as discussed here and here).
Filling out its rejection of the state's harmless error claims, the Allen court explains:
Our Supreme Court has definitively stated that when "the [trial] judge [has] erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing." State v. Ahearn, 307 N.C. 584, 602 (1983). In the case sub judice, it is undisputed that the trial judge unilaterally found the existence of an aggravating factor and, thereupon, sentenced defendant in the aggravated range. The State's argument, when viewed in light of the ruling articulated in Ahearn, must fail, as this Court should properly remand the case for resentencing. Accordingly, we grant defendant's motion for appropriate relief and remand this case to the trial court for resentencing consistent with the holding in Blakely.
Pitch for a law-themed disaster movie?
As noted here by Professor Orin Kerr at The Volokh Conspiracy and here by applicant Chris Geidner at Law Dork, today is the official start of the federal clerkship application mania. The massive numbers of applications in transit today has me thinking of a hollywood pitch for a law-themed disaster movie:
"What happens to federal judges and their earnest staff when a tidal wave of clerkship applications floods a chambers already reeling from a number 10 Blakely earthquake?"
To a law geek like me, this pitch sounds as exciting as any of these recently inked Hollywood deals. But I need a catchy title. Suggestions? (If you scroll down the Hollywood deals list linked above, you will see that "The Passion of the Clerks" has already been taken by director Kevin Smith.)
While you were barbequing...
I did get some R&R over the weekend, but I could not help spending parts of the Labor Day laboring over the briefs filed in Booker and Fanfan. Some of my (not-too-brief) brief commentary includes reviews of the Bizarro judges' brief, the mis-filed Senators' brief, and the page-turning briefs from the SG and USSC. In addition, this post on federalism and retroactivity probes some deeper issues lurking in Booker and Fanfan.
Finally, I wonder if the Fourth Circuit took advantage of the long weekend to finally finish an opinion in Hammoud. It is now over 5 full weeks since the court issued its (opaque) order declaring Blakely inapplicable to the federal guidelines, but recommending that district courts announce alternative sentences. As detailed here, the compelling facts in Hammoud are perhaps slowing down the Fourth Circuit (recall that Hammoud had more than 150 years added to a sentence of less than 5 years based on judge-found facts).
September 6, 2004
In addition to being a great movie worthy of great web analysis, pulp fiction is a term for a type of literature where selections of fictional short stories are printed in a bulk magazine for distribution. Thus, it makes a great label for the stories to be found in some of the Booker and Fanfan briefs filed in the Supreme Court last week. Though the deftly written briefs submitted by the SG and USSC do not make misrepresentations, the briefs certainly suggest (at least) five pulp fictions that merit focused examination:
Pulp Fiction 1: The US Sentencing Commission is a truly independent agency in which judges make sentencing rules for themselves. As discussed here and here, the USSC both in design and in operation is far more like, in Justice Scalia's memorable phrase, a "junior-varsity Congress" than like a Judicial Branch coach. If the federal sentencing guidelines were written by the Judicial Conference or developed through a true common-law process, the claim for distinct constitutional status might be more plausible. But the SG concedes at pp. 24-25, as it must, that Congressional control over the USSC is considerable. And, Judge Kathleen Cardone recently called "the proposition that the existing Guidelines, which bind a sentencing court to procedures on peril of reversal, are no more than a court rule guiding a judge through sentencing" is "a legal fiction of the highest order" (details here).
Pulp Fiction 2: The federal guidelines merely "channel" or "guide" judicial discretion. The SG and USSC briefs assert repeatedly that the federal guidelines merely guide or "channel judicial discretion." See, e.g., SG Brief at 22; USSC Brief at 15. But of course, as many judges and observers have highlighted, the federal guidelines are guidelines in name only. They are binding legal authority which, in the calculation of sentencing ranges, directly mandate what facts must be considered by judges and also how those facts must be considered. No matter how thoughtful or reasoned, a judge who seeks to exercise her discretion in any manner that does strictly follow the guidelines' "guidance" will be reversed.
Pulp Fiction 3: No parts of the federal guidelines are statutory. Only in a footnote does the SG concede that Congress directly amended the guidelines through the PROTECT Act, and the SG's brief does not explain the potential impact of that reality on the assertion that the Blakely is inapplicable to the federal guidelines because they "are the product of ... a body in the Judicial Branch." And, of course, Congress' direct changes to the guidelines is but one part of the PROTECT Act's alternation of federal sentencing to make the guidelines even more "legislative" and less "judicial."
Pulp Fiction 4: The SRA mandates, and effective guideline reform requires, lax procedures at sentencing. As discussed here and here, the briefs intimate that the success of federal sentencing reform depends upon sentencing judges being able to find many facts by a preponderance of the evidence. But, as many state systems have shown, effective guideline reform does not require complex judicial fact-finding of uncharged "relevant conduct." Moreover, as the USSC brief reveals, the federal guidelines' emphasis on judicial fact-finding of uncharged conduct comes as a result of (highly questionable) choices made by the original US Sentencing Commission, it was not mandated by the provisions of the Sentencing Reform Act. Indeed, the USSC could have devised guidelines from the outset which would have been fully compliant with the rule announced in Blakely — and such a system likely would have been more successful and better received than the current federal guideline system.
Pulp Fiction 5: The issues discussed above matter in the application of Blakely's rule. In the end, the briefs submitted in an effort to sustain the federal sentencing system are all staging Hamlet without the prince. Though pragmatic concerns about applying Blakely to federal sentencing are stressed, lacking in all the briefs is a truly principled argument that defendants should not have a right to a jury find beyond a reasonable doubt sentence-enhancing facts.
Blakely, federalism, retroactivity and pragmatism
As I noted before here, it is significant and telling that no states have filed briefs in support of the federal government's position in Booker and Fanfan. And upon re-reading the briefs seeking to distinguish the federal system from the rule in Blakely, I was struck particularly by the federalism ironies in this chapter of sentencing reform and also by how the SG's arguments may sell out the states on the important question of Blakely's retroactivity. Let me explain:
1. The federalism ironies. Thoughtful observers of modern sentencing reform — from the ABA in its Standards for Criminal Justice to leading academics (see, e.g., Michael Tonry, Sentencing Matters (1996), Richard Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Fed. Sent. Rep. 69 (1999)) — consistently report that state sentencing reform efforts have generally been successful while federal efforts have not. In Professor Tonry's words, "Few outside the federal commission would disagree that the federal guidelines have been a disaster [while] state guidelines [have] turned out ... surprisingly well." Sentencing Matters at pp. 9-13.
Yet now the SG and USSC are arguing that the distinctive features of the federal system — e.g., that the federal guidelines are (mostly) written by a (mostly ineffectual) commission and that they are (extremely) complicated and require punishment for uncharged conduct — should exempt the federal guidelines from the constitutional rule articulated in Blakely. The first irony is that highly questionable legal distinctions are being made in an effort to "save" perhaps the only guideline system that does not deserve saving. The deeper federalism irony is that arguments for a "federal exemption" to the Blakely rule are being made to a Rehnquist Court that has sought to reinvigorate federalism concepts by exempting states from federal legal burdens.
2. The states' retroactivity problem. Inherent to the SG's argument that Blakely does not apply to the federal guidelines is the assertion that Blakely was just an application of the Apprendi rule. See SG Brief at 18 ("Blakely thus applied the rule of Apprendi"); see also USSC Brief at 18-19. In other words, to exempt the federal guidelines from Blakely, the Supreme Court would essentially have to hold that Blakely was not a new rule, just an application of the rule announced in Apprendi. But so holding would then seem to require states to apply the (not-new) Blakely rule to all convictions not yet final when Apprendi was decided in June 2000.
In other words, the argument the SG is making in an effort to "save" the current federal sentencing system (which, by most accounts, is not worth saving) could have the effect of destroying at least four years of past state sentencing outcomes. Following the SG's arguments to its logical conclusion entails that the argument for exempting the federal guidelines from Blakely is not pragmatic at all, since pragmatically speaking such a ruling will create many more headaches and problems for state sentencing systems than it might save for federal sentencing. Thus, despite my earlier suggestion here that the federal debate over Blakely is a dispute between principle and pragmatism, I now realize that both principle and pragmatism support the application of Blakely to the federal system.
September 6, 2004 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack
Great brief, wrong case: the three Senators' brief
In comments, Thomas Yerbich quite succinctly summarizes the amicus brief filed by US Senators Orrin G. Hatch, Edward M. Kennedy and Dianne Feinstein (available here):
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!
Indeed, I was struck while reading the brief that it would be an extremely effective in a case challenging mandatory minimum sentences or the provisions of the Feeney Amendment. The three Senators' brief stresses that the Sentencing Reform Act of 1984 (SRA) "intended sentencing judges to have flexibility to move a sentence both upward and downward within the applicable guidelines range based on an individualized consideration of the offender and his offense and, in unusual cases, to depart upward or downward outside of the guidelines range." Yet mandatory minimums and the Feeney Amendment do far more to undermine this intended "flexibility" and "individualized consideration" than would a holding in Booker and Fanfan that defendants have a right to have proven beyond a reasonable doubt facts requiring enhanced sentences.
Of course, Justices Kennedy and Breyer both appreciate that mandatory minimums undermine the laudable goals of the SRA. Justice Kennedy in his Koon decision stressed the importance of judicial departure authority within the SRA, and he has long assailed mandatory minimums as "unwise and unjust." (See, most recently, this important speech to the ABA last year.) Similarly, Justice Breyer has long lamented the impact of mandatory minimum statutes on the operation of the guidelines system he helped create:
[S]tatutory mandatory sentences prevent the Commission from carrying out its basic, congressionally mandated task: the development, in part through research, of a rational, coherent set of punishments.... Every system, after all, needs some kind of escape valve for unusual cases.... For this reason, the Guideline system is a stronger, more effective sentencing system in practice.
In sum, Congress, in simultaneously requiring Guideline sentencing and mandatory minimum sentencing, is riding two different horses. And those horses, in terms of coherence, fairness, and effectiveness, are traveling in opposite directions. [In my view, Congress should] abolish mandatory minimums altogether.
Speech of Justice Stephen Breyer, Federal Sentencing Guidelines Revisited (Nov. 18, 1998), reprinted at 11 Fed. Sent. Rep. 180, 184-85 (1999). Indeed, Senator Orrin Hatch himself has long been on record noting the major faults of mandatory sentences and calling for a complete reexamination of the issue. See Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 Wake Forest L. Rev. 185 (1993).
In other words, as I have stressed in my own writings, the SRA was a great piece of legislation, but the federal sentencing system in practice has not in fact achieved its laudable goals. That is why I have suggested here that there is a strong case to be made that applying Blakely to the federal guidelines would in fact help give effect to the intent of Congress in enacting the SRA.
The three Senators' brief does not even mention the Sixth Amendment perhaps because it hard to argue that respecting defendants' rights to have facts proven to a jury beyond a reasonable doubt itself undermines the goals of sentencing reform. Of course, Justice Scalia and four other Justices obviously understand this when they stress that Blakely "is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment." And these realities in part explain why I have speculated here that Justices Kennedy and Breyer may join the "Blakely five" before any Justice in that group shrinks away from carrying the Blakely principle to its logical conclusion.
September 5, 2004
When did Judge Martin enter the Bizarro World?
This weekend I have had the chance to review the briefs filed in the Supreme Court last week in the Booker and Fanfan cases. Especially when reading arguments that Blakely should not apply to the federal guidelines, I am struck by how out of touch with reality the briefs seem to be. The briefs describe not the current federal guidelines system, but rather an idealized federal sentencing system — a system which could have come to pass after the enactment of the Sentencing Reform Act, but which does not really exist now. See generally A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stanford Law & Policy Review 93 (1999).
In subsequent posts, I hope to highlight the fairy-tale nature of parts of the SG and USSC briefs, but in this space I must first wonder out loud about the amici curiae brief filed by former US District Judge John Martin on behalf of an "ad hoc group of former federal judges." The brief itself, as well as some insightful reader comments about its "Alice-in-Wonderland quality," can be found here.
As I was reading this brief, I could not help but think of the question that is the title of this post: "When did Judge Martin enter the Bizarro World?" As is well-known to true Seinfeld fans, the Bizarro World is a place inhabited by imperfect duplicates of Superman and his friends who do everything backwards. (I have uploaded the cover of this comic classic, and here is a link with helpful background on the basic bizarro concept and here is a link with a lot more about the place of Bizarro in Superman lore.)
For followers of federal sentencing, former US District Judge Martin has been something of a "Man of Steel" for his courageous decision to relinquish his lifetime appointment in part, he said, to protest the unjust nature of the federal sentencing process. In this widely discussed New York Times Op-ed entitled "Let Judges Do Their Jobs" (published exactly a year to the day before Blakely was handed down), Judge Martin explained that he was resigning from the federal bench because "Congress has tried to micromanage the work of the commission and has undermined its efforts to provide judges with some discretion in sentencing or to ameliorate excessively harsh terms." Judge Martin concluded his astute criticisms of federal sentencing by saying that "I never thought that I would leave the federal bench [but] I no longer want to be part of our unjust criminal justice system."
Similarly, this report of Judge Martin's remarks at the ABA Kennedy Commission hearings highlights some of the criticisms of federal sentencing he has been sharing with audiences around the country for the last year:
John Martin ... said that a system that does not have a departure rate of "25 to 30 percent cannot do justice." Absent appropriate judicial discretion to depart from the guidelines, federal sentencing is currently imposing sentences that are too harsh, Martin argued.... Martin criticized the system for forcing judges to impose "incredibly harsh sentences" without giving them the ability to properly differentiate between offenders.
But now — apparently after a trip to the Bizarro World (or should I say the Blakely World) — Judge Martin and others assert that federal judges have "broad judicial discretion" because the federal guidelines "substantially preserve a court's sentencing discretion" in a system "more analogous to the traditional indeterminate scheme" than to the "determinate statutory scheme at issue in Blakely." Martin Brief at pp. 5-6, 9-10. Perhaps in the Bizarro World it is true, as this brief claims, that the federal guidelines "more closely resemble the regime at issue in Williams than in Blakely," id. at 14, but most federal sentencing observers and participants likely would not consider this a fair description of the real world of federal sentencing today.
Also, apparently in the Bizarro World of federal sentencing the Feeney Amendment was just an odd footnote to the guidelines' preservation of "substantial judicial discretion," and the "24% departure rate in the Second Circuit" is more representative of federal sentencing realities than the "6% rate of departure in the Fourth Circuit." See id. at 13-22. But, even these pre-Feeney Amendment statistics show that the majority of federal circuits had a departure rate under 10% in fiscal year 2002. And, of course, the Feeney Amendment further constrained judicial discretion to depart, and it reversed legislatively the Supreme Court's Koon decision emphasized throughout the Martin brief. Moreover, if federal sentencing in the Second Circuit is sound because "judicial discretion over sentencing remains both broad and meaningful in those circuits that have recognized the full extent to the Guidelines' departure power," id. at 22, why did Judge Martin need to resign? He was a judge in the Southern District of New York, which is part of the Second Circuit.
Gosh knows many wish that federal sentencing was in fact like Judge Martin and his colleagues describe in their brief, and I laud the effort to emphasize the importance of substantial judicial discretion in a well-functioning sentencing system. Indeed, in my own writings I have stressed that an improved departure mechanism (and the eliminatation of many mandatory minimum sentences) could remedy much of what ails federal sentencing. See Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000).
But, as too many judges and defendants and defense attorneys know too well, federal sentencing now takes place in the Feeney World, not in the Bizarro World. Thus, it is hard to fully understand why Judge Martin is writing so forcefully in defense of a system that he himself felt he had to quit because it was unjust.