September 14, 2004
Calling all data junkies!!
The more I think about issues like severability and retroactivity, the more I realize a lot of my thinking (and perhaps also the thinking of courts and litigants) is influenced by perceptions or suppositions about the number of cases possibly impacted by different sorts of rulings. To its credit, the Minnesota Sentencing Guidelines Commission gave us some real (though perhaps shaded) numbers about how many cases Blakely would likely impact in that state (see Ron's post here), but I have not seen anything comparable from the federal sentencing commission or other state entities. And, of course, I have not seen any effort to run the Blakely "retroactivity" numbers in any single jurisdiction or across all jurisdictions.
Of course, the US Sentencing Commission has terrific general data on its website concerning various guideline related matters. For example, here is a chart of the number of federal offenders of various offense types in the federal system in recent years, here is a chart of guilty pleas and trial rates, and here is a chart of federal offenders receiving different sentencing options in each primary offense category, and here is a chart of the position within the guideline range for offenders in each primary offense category.
I am not quite sure if and how any of this data can or should directly or indirectly impact arguments about Blakely's applicability to the federal guidelines or issues of severability. But I am sure that I would like to here from any and all data junkies out there who have been looking at real numbers while I have been focused on matters of policy and doctrine.
Wouldn't most sentences be lower if the guidelines are non-severable?
As detailed in this recent post, I am worried about some potentially peculiar and problematic consequences of a ruling that the federal guidelines are (partially or totally) not severability. Moreover, though in this seemingly long-ago post I posited that the severability debate is a tussle between concerns about lawlessness and leniency, I am now thinking that, if the SG's non-severability argument prevails, we will have a federal sentencing world that is both lawless and lenient.
As noted before, the SG's advocacy of non-severability seems driven principally by a concern that some defendants "could receive a sentencing windfall," SG brief at 68, if the guidelines were deemed severable. But won't (many?) defendants be able to receive a bigger windfall if the guidelines are declared non-severable (especially if the guidelines become inapplicable in all cases)? I suspect that most federal judges agree with Justice Kennedy's assertion to the ABA last year that "[o]ur resources are misspent, our punishments too severe, our sentences too long ... [and thus the] Federal Sentencing Guidelines should be revised downward." If so, won't most federal judges go even lower without any guideline constraints than if constrained by the guidelines applied in a Blakely-compliant way?
Consider, for example, the Booker facts before the Supreme Court. With the guidelines severable and still partially binding, Booker must get at least 210 months. But with the guidelines non-severable and just advisory — though with the SRA's mandate in 18 USC 3553(a) that a judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment — Booker could receive a sentence as low as 120 months.
Alternatively, consider Martha Stewart's case. First, if the guidelines are completely non-severable in all cases (as two district judges have held), she has a right to resentencing; at resentencing she would have a reasonable argument that the SRA's requirement of "a sentence sufficient, but not greater than necessary," would call for a sentence with no jail time. Second, even if the guidelines are deemed non-severable only in cases with Blakely factors, Martha's lawyers might claim now that her case involves a Blakely factor so she can argue for a lower sentence under the government's non-severability theory.
Finally, consider the interesting and potent arguments made in a recent brief that I received (and provide for downloading below) that established due process and ex post facto doctrines preclude a judge from "retroactively increasing the potential penalty from the applicable Guidelines range to the statutorily prescribed maximum." In other words, constitutional doctrines may preclude judges from imposing harsher sentences if freed from guideline constraints — i.e., judges only discretion in a "non-severed guidelines world" may be to be more lenient (which, of course, may be what they really want to do anyway).
After I get through all this headache causing analysis, I come to wonder whether defense attorneys might in the end argue for non-severability, too, in Booker and Fanfan.
Sorting through non-severability concerns
The Solicitor General's brief in Booker and Fanfan does a fine job establishing that neither Congress nor the US Sentencing Commission expected or intended the federal guidelines to incorporate the sort of jury fact-finding that Blakely now suggests is constitutionally required. However, by ducking nearly all the tough severability issues (as explained here), the SG's brief fails to confront or even acknowledge the many potential problems that its non-severability argument presents.
Indeed, the more I think through the issue, the more I am concerned that adoption of the SG's non-severability claims will create far more chaos and uncertainty (and also perhaps more lenient sentences) than a severability ruling. Though I may need a series of posts to explain my concerns, let me try here to start spotlighting some of these issues:
1. What happens in cases without Blakely factors? As noted before, the SG brief ducks the question of whether, if Blakely applies to the federal guidelines, the guidelines can and should still apply in federal sentencing cases that do not raise any "Blakely factors." If the Supreme Court does not speak to this issue, lower courts will be at sea — and likely will make contradictory rulings — about the applicability of the guidelines in "Blakely-free" cases. Moreover, if the guidelines are still to apply in cases without Blakely factors, might we start seeing defendants claiming that their cases involve Blakely factors in order to try to escape the guidelines' strictures (e.g., might Martha Stewart claim that her case really does involve a Blakely factor so she can argue now for a lower sentence under the government's non-severability theory)?
2. How can and should sentencing with advisory guidelines proceed? The SG says that, if and when the guidelines "fall as a whole," then the guidelines "would remain as advisory factors for the court to consider." SG Brief at 66-67. But, practically speaking, how would sentencing proceed in federal courts with the guidelines wholly and only advisory?
In such a guideline-advisory world, would probation officers still create presentence reports (PSR) with guideline calculations or should sentencing courts relieve probation officers of this responsibility? Or, perhaps more critically, could a court to aid its discretionary sentencing decision order a probation officer to investigate a broad range of issues — e.g., drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing?
And assuming PSRs still contained guideline calculations (which seems critical if the guidelines are to be advisory), would prosecutors and defense attorneys be able to contest, either factually or legally, aspects of the PSR's guideline determinations? Would and should a probation officer and a sentencing judge consider common downward departure arguments — e.g., extraordinary family circumstances, aberrant behavior — in the context of the established departure jurisprudence, or should judges just be completely free to consider these factors as they see fit?
3. What happens to appellate review? Even if the Supreme Court determines that appellate review continues despite the guidelines being non-severable, how will appellate review proceed in cases in which the guidelines are only advisory? The SRA's appellate review provision, 18 USC 3742, does provide for "plainly unreasonable" review when "there is no sentencing guideline." But what will that mean in a world with advisory guidelines? Would a defendant be able to raise claims about a PSR's guideline determinations if a non-guidelines sentence was based on "advisory" guideline calculations in the PSR? Can the defendant base appellate claims on the other provisions of the SRA that the government (at SG brief p. 67) claims are still operative —including the requirement of 18 USC 3553(a) that a judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the SRA (emphasis added)?
Because the SG's brief does not even begin to grapple with these questions, I wonder if the government has completely thought through all the consequences of a (partial or total) ruling on non-severability. I am quite worried that an excessive concern that a few defendants "could receive a sentencing windfall," SG brief at 68, has led the SG to advocate a position on non-severability that might actually create many, many more problems than it solves. In addition, as I will explain in a subsequent post, I actually think there is a much bigger risk that more defendants "could receive a sentencing windfall" if the guidelines are declared non-severable than if they are declared severable.
Limiting the impact of Blakely in California
Just as most of the federal circuit courts seem to be doing their best to limit the Blakely fallout in the federal system (at least until Booker and Fanfan are decided), the California intermediate appellate courts are working hard to keep Blakely from disrupting too many California sentences. The latest case in point is People v. Sample, 2004 WL 2027285 (Cal. App. 3 Dist. Sept. 13, 2004), in which the court asserts on every possible ground that the defendant's Blakely claim is unavailing:
Defendant did not raise an Apprendi objection in the trial court, and factors used in imposing the upper term and consecutive sentencing were uncontested at trial and supported by overwhelming evidence. Hence, defendant is barred from raising the claim of Apprendi/Blakely error.
In any event, the rule of Apprendi and Blakely does not apply to California's consecutive sentencing scheme, and imposition of the upper term here was harmless beyond a reasonable doubt.
Similarly, in two unpublished opinions last week, two different California intermediate appellate courts gave the "prior conviction" exception a broad reading and application to affirm sentences that are arguably Blakely problematic. See People v. Bushnell, 2004 WL 2011414 (Cal. App. 2 Dist. Sept. 10, 2004); People v. Som, 2004 WL 1966058 (Cal. App. 3 Dist. Sept. 07, 2004).
Among other realities, these decisions highlight the mess that Blakely has created for state sentencing systems. They also spotlight the question of whether state courts will be able to effectively clean up state Blakely messes on their own, or will need the Supreme Court to soon address issues like the "prior conviction" exception and the applicability of Blakely to consecutive sentencing in order to bring order and normalcy back to state sentencing.
Covering all the bases
In an interesting twist on the alternative sentencing idea (previously detailed here and here), the Seventh Circuit in US v. Schaefer, 2004 U.S. App. LEXIS 19166 (7th Cir. Sept. 13, 2004), recently decided that "[a]lthough Blakely and Booker necessitate our remand of this case to the district court for resentencing, we will nonetheless address Schaefer's arguments under the Guidelines ... in the interest of judicial economy in the event that the Supreme Court may subsequently decide some other fate for the federal Guidelines than that indicated in Booker."
After some thoughtful but fairly standard pre-Blakely analysis, the Seventh Circuit holds that the case is remanded due to Booker, but "in the event that the Supreme Court decides that Blakely does not invalidate the federal sentencing Guidelines, we affirm" Schaefer's sentence. And at the very end of its ruling, the Seventh Circuit drops this interesting footnote:
Schaefer has also requested immediate release under bond from incarceration, since he has already served what would presumably be his sentence if the Guidelines are invalid. Based on the present state of the law in this circuit, this seems to be a meritorious request, but we leave this decision to the district court on remand. In this regard, the district court might wish to take note of Schaefer's earlier positions in this case with respect to unchallenged aspects of his sentence. See Booker, 375 F.3d at 510 (interpreting Blakely to allow sentences to be imposed based on "what the jury found or the defendant admitted or, as here, did not contest") (emphasis added).
September 13, 2004
Big doings tomorrow
Though it seems like every day is a big day since Blakely, tomorrow brings two events of special note. First, as discussed here with more background here, scheduled for tomorrow afternoon in Utah is the sentencing of Weldon Angelos, a 25-year-old record producer who faces 63 years in prison for a first offense of marijuana dealing primarily because of federal mandatory minimum sentences. I have received a notice that Families Against Mandatory Minimums is planning a media event immediately following the sentencing hearing, with all sorts of notable participants. Details can be found in the press release below.
Also tomorrow, on the other side of the country, the public policy groups Watching Justice and the Constitution Project are hosting in Washington DC "an interactive panel discussion" compellingly titled "Blakely, the Kennedy Commission, and Beyond: The Future of State and Federal Sentencing Policies." Basic details about the event can be accessed at this link, and a fuller account of the event and of the all-star cast of participants can be downloaded below.
As previously discussed here, last week in US v. Mutchler, 2004 U.S. Dist. LEXIS 18053 (S.D. Iowa, Sept. 09, 2004), District Judge Robert Pratt granted a defense motion to strike allegations of aggravating factors in a "Blakely-ized" superseding indictment. But around the same time, in US v. Baert, 2004 U.S. Dist. LEXIS 17911 (D. Maine Sept. 8, 2004), District Judge Brock Hornby (of Fanfan fame) refused to strike allegations pertinent to sentencing because his interpretation of Blakely requires the government to "include such allegations in order to obtain what it considers an appropriate sentence" under the guidelines.
In short, we have an understandable, but still significant, "surplusage split."
And, interestingly, I also recently discovered that US District Judge Robert W. Gettleman, in US v. Brown, 2004 U.S. Dist. LEXIS 17835 (N.D. Ill. Aug. 13, 2004), granted "defendant's motion to dismiss indictment or, alternatively, to strike surplusage from indictment in part" based on the government's addition of "sentencing allegations" in a superceding indictment. But, in the same order, Judge Gettleman granted, over the defendant's "vigorous" objection, the government's motion "to continue the trial date from August 16, 2004, to a date in the future after the court receives guidance from the US Supreme Court in US v. Booker and US v. Fanfan." Based on the surplusage skirmish, I will leave it to others to figure out who won the battle and who won the war in Brown.
An amicus report from the ACTL
As I discussed here, I find it ironic that in Booker and Fanfan many questionable arguments are being made in an effort to "save" from Blakely perhaps the only guideline system that does not deserve saving. Additional proof that the federal sentencing system does not deserve saving landed in my mailbox this morning in the form of a report from the American College of Trial Lawyers, which is tellingly titled "United States Sentencing Guidelines 2004: An Experiment That Has Failed."
This press release from ACTL provides background on the substance of the report and the Task Force that wrote it . Though not in the form of an amicus brief, I think the report (available for downloaded below) — which was written by a group with members "who represent all branches of the legal profession involved in the administration of criminal justice" including "sitting and former federal judges, current and former prosecutors and defense counsel" — should be required reading for everyone thinking about Booker, Fanfan, and the future of federal sentencing.
Looking for Blakely-ized clerks?
As discussed before here, the clerkship hiring season has officially begun, and rumor has it that federal judges are starting to arrange and conduct interviews. (Here you can get a sense of applicants' feelings as they seek what I still consider the greatest job to be had out of law school).
As this hiring process kicks into warp speed, I wonder if judges, both federal and state, are looking for clerks who have been "Blakely-ized." Since Blakely is the biggest legal story of the summer — with analogies drawn by others to cases like Brown and Roe — I would expect any serious applicant to be familiar with the decision and its aftermath.
But might at least some federal and state judges be looking for a lot of Blakely knowledge in a clerk, since Blakely issues are sure to be occupying courts for years to come no matter what the decision in Booker and Fanfan? Needless to say, any and every Ohio State applicant who crossed my path in the last few months has been fully Blakely-ized (and we all know how painful that can be).
Blakely from the California to the Carolinas...
Coast to coast, everyone is grappling with the Blakely fallout. The latest news on the state of Blakely in California can be found in this article, while this quite thoughtful piece reviews the state of the post-Blakely world in North Carolina. Both articles highlight the dramatic and uncertain impact that Blakely is having on state sentencing systems.
September 12, 2004
The SG's artful dodging on severability
Though the Solicitor General's arguments about the federal guidelines' severability are much more in touch with reality than some of its arguments about Blakely's applicability to the federal guidelines, what stands out most in the SG's treatment of severability is the dodging of some of the toughest issues. I suppose I should be thankful that the SG did not avoid the severability question altogether, as has the US Sentencing Commission, but the Supreme Court surely would benefit from a fuller analysis of all of the tough and critical severability questions it faces in Booker and Fanfan.
First, as noted before here, the SG brief completely ducks the question of whether, if Blakely applies to the federal guidelines, the guidelines can and should still apply in federal sentencing cases that do not raise any "Blakely factors." Recall that at least two federal judges have held that, if the guidelines are wholly inapplicable in some cases, then they are wholly inapplicable in all federal cases. Meanwhile, as detailed here, at least one Commissioner has opined that only one in five federal cases have Blakely issues. Whatever the true number, "lower courts will be in desparate need of guidance" (SG Brief at 43) about how to handle "Blakely-free" cases if SCOTUS applies Blakely to the federal guidelines.
Second, though the SG highlights that severability is an issue of statutory construction and legislative intent, the brief does not dig into all the challenging implications of these realities. For example, as I suggested here, perhaps the rule of lenity has some applicability in this setting, but the SG does not mention the doctrine at all.
In addition, the SG does not address which Congress's intent matters in assessing severability. (I previously noted here the intrigue of this question given that the 1984 Congress passed the Sentencing Reform Act (SRA), but the 1987 Congress approved the initial federal guidelines, while the 2003 Congress directly amended the guidelines in the PROTECT Act, and Congresses (Congri?) from 1988 through 2004 continued to approve/authorize the current guidelines and amendments thereto). The "which Congress" question seems consequential since, as noted here, the Congress that passed the SRA was primarily focused on remedying lawlessness, while more recent Congresses have shown a particular concern about perceived leniency.
Finally, since the SG contends that the SRA is severable by arguing that the provisions of 18 U.S.C. 3553(a) would still govern federal sentencing even if Blakely is applicable to the federal guidelines, see SG Brief at 67, I suppose it is understandable that the SG does not address the continued validity of sentencing appeals or supervised release or the abolition of parole or other fundamental features of the SRA. Nevertheless, as noted here, the broadest claim of non-severability raises a host of critical, practical issues not even acknowledged by the SG.
Head-counting in an alternative universe
Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here and commentary here) includes a brief explanation for the Circuit's recommendation that district judges "announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating the guidelines as advisory only." This explanation helps me understand a bit better why a majority of the Fourth Circuit believes that "announcing — not imposing — a non-guidelines sentence at the time of sentencing will serve judicial economy," even though the court recognizes that the "announcement of a non-guidelines sentence may require the district court to consider issues not generally pertinent in guidelines sentencing, thereby requiring the investment of additional time at the sentencing hearing."
But, like other aspects of the Hammoud decision, the alternative sentencing explanation leaves me with more questions than answers. First, in light of the Fourth Circuit's recommendation, shouldn't the disposition of the Hammoud case been a remand for the announcement of an alternative sentence? Wouldn't it be useful, to paraphrase the Fourth Circuit, for "the district court and the parties [to make] at least substantial progress toward the determination of a non-guidelines sentence [in Hammoud's case], at a time when the facts and circumstances [are still] clearly in mind"?
Second, Judge Widener's dissent to the "alternative sentence" portion of the Hammoud ruling asserts that "even if the recommended advisory sentencing is discretionary, about which I have some doubt, in my opinion, it is inadvisable." This statement and the majority's discussion raises, but does not answer, the question of whether district courts may lawfully refuse to follow the alternative sentencing recommendation. May Judge Goodwin continue to refuse to impose alternative sentences (as thoughtfully explained here), or must he now get in line? The Hammoud majority's oblique footnote addressing Judge Goodwin's serious concerns about alternative sentencing does not answer this question. And since Ron reported here that most district judges in the Fourth Circuit have not been announcing alternative sentences, this is a question that may be on the minds of many district judges in the Fourth Circuit.
Finally, I have a distinct empirical/practical question: Is anyone keeping track of how many and what sorts of alternative sentences have been announced in the Fourth Circuit and elsewhere after Blakely? I hope and expect the US Sentencing Commission is collecting this data, and the recent memo from the Judicial Conference Criminal Law Committee discussed here suggests that the federal Bureau of Prisons might also be tracking these issues. Recall also that DOJ through the Comey memo (available here) urged its prosecutors to seek alternative sentences and indicated it would be collecting lots of data during this chaotic period.
Whomever may be keeping track of alternative sentencing data, I sincerely hope that this data can be systematically tallied and made available to the public as soon as possible. I think I can fairly speak for the academic and research community when I say that many academics and researchers will have an interest in examining and analyzing alternative sentencing data.
The future of mandatory minimums?
Adam Liptak has this terrific article in today's NY Times about the upcoming sentencing of Weldon Angelos, a 25-year-old record producer, who faces 63 years in prison for a first offense of marijuana dealing primarily because of federal mandatory minimum sentences.
Sadly, the case may not be all that unusual on the facts, but it is making headlines because Utah US District Judge Paul Cassell raised questions about the constitutionality of mandatory minimum sentences in the Angelos case back in February, and he directed defense attorneys and federal prosecutors to file briefs on the issue. And, as previously detailed here, among the briefs filed on Angelos' behalf was an amicus effort by a group 29 former legal officials — including former US attorneys, federal judges, and a former US attorney general — arguing that his sentence would be unconstitutional on various ground (most specifically as a violation of the Eighth Amendment's prohibition of cruel and unusual punishments).
The Angelos case is fascinating on its own terms for many reasons, especially because Judge Cassell in his short tenure on the bench has already shown his capacity and courage to address sentencing issues in dynamic and dynamite ways. I hope Judge Cassell can and will issue a quick and powerful decision in Angelos that helps frame the future legal and policy debate over mandatory minimums (just as he framed the federal debate over Blakely through his brilliant Croxford opinion).
But as the NY Times article astutely notes, the Angelos case and the status of mandatory minimums in the federal system is even more important now both legally and politically in the wake of Blakely:
The Angelos case may provide a glimpse of the future.... The Supreme Court will decide whether to strike down the sentencing guidelines after it hears arguments in October, and some legislators are already signaling their preference for more mandatory minimums if the guidelines are deemed unconstitutional.
At a hearing in July on legislation that would increase drug sentences, Representative Howard Coble, Republican of North Carolina, said, "It seems clear that mandatory minimums may well take on added importance in assuring appropriate sentences for serious federal crimes as a result of the Supreme Court's actions."
Ronald H. Weich, a former counsel to the Senate Judiciary Committee who opposes mandatory minimums, said they had a political constituency. "There is a real danger," Mr. Weich said, "that we're heading back to mandatory minimums if guidelines are unconstitutional."
Sadly, I got the eery feeling when in DC last week that many folks inside the Beltway fear it is inevitable that the striking down of the federal guidelines in Booker and Fanfan would lead to congressional passage of additional mandatory minimums, even though all thoughtful observers recognize, in the words of Justice Kennedy, that "[i]n too many cases, mandatory minimum sentences are unwise and unjust." Indeed, I believe this fear best explains the curious briefs filed by the USSC and the former judges and the Senators seeking to defend a federal sentencing system that they know is flawed, perhaps deeply flawed, in many respects.
Though a fear of Congress' (over)reaction to the striking down of the federal guidelines is understandable and perhaps even justifiable, for now I am going to hold on to my (naive?) optimism that meaningful sentencing reform after Blakely is possible. I really want to believe that, if thoughtful judges like Kennedy and Cassell keep speaking the truth about our current federal sentencing system, our elected representatives will care enough about good government (and not just about campaign rhetoric) to really try to do better.