September 21, 2004
The Respondents' Briefs in Booker and Fanfan
I have now received the brief filed on behalf of Respondent Fanfan in the Supreme Court. It can be downloaded here:
I expect to have the Booker brief for posting soon, too.
UPDATE: And here it is:
Here come the amici for Respondents
In what I suspect is just the first two of a number of amicus filings, I have received the amicus briefs being filed by Families Against Mandatory Minimums and by the National Association of Criminal Defense Lawyers with the Supreme Court today in the Booker and Fanfan cases. The FAMM and NACDL efforts, both which address the applicability of Blakely to the federal guidelines and severability issues, can be downloaded here:
I hope to add any and all the other amicus filings I receive to this post and to use a separate post for the filings of the parties. Check back in later in the day, since I believe all the briefs must be filed this afternoon.
UPDATE: And now I have in copies of amicus briefs filed by the Washington Legal Foundation and by the National Association of Federal Defenders and by the New York Council of Defense Lawyers. The WLF and NAFD and NYCDL efforts can be downloaded below:
What Blakely is really about: adversarial versus administrative justice
Aided by yesterday's two wonderful Wall Street Journal articles (discussed here and here) and a great student comment at last week's Harvard panel, I think I finally have Blakely figured out. Blakely is really a battle between five Justices who champion an adversarial model of sentencing in which sentence-enhancing facts must be proved to a jury beyond a reasonable doubt, and four Justices clinging to a now-dated administrative model of sentencing where, in Justice Scalia's words, "a lone employee of the State" makes all critical findings and determinations.
The WSJ articles provide additional evidence of just how much modern federal sentencing has become a (prosecutor-controlled) administrative system of criminal justice. As the articles explain, US Sentencing Commission data reveal that 97 of every 100 federal convictions are now secured through guilty pleas. Sentences are increased by prosecutors by alleging at sentencing offenses and other facts that never were charged or proved, and guideline calculations are based almost exclusively on information in a pre-sentence report prepared by a probation officer who gets most offense information from a federal prosecutor. I am now reading Blakely as a statement that this administrative system of sentencing cannot persist if we are truly committed to an adversarial system of criminal justice.
The sparring between Justices Scalia and Breyer makes so much more sense when viewed through this adversarial/administrative lens. Justice Scalia assails Justice Breyer's "esteem for non-adversarial truth-seeking processes" and asserts that "Our Constitution and the common-law traditions it entrenches ... do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury." Slip op. at 17. And Justice Scalia concludes his Blakely opinion with this telling passage:
One can certainly argue that both these values [of efficiency and fairness] would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers' paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.
The adversarial/administrative distinction also helps explain other aspects of the Blakely story. It explains why Justice Breyer, traditionally considered a liberal, is fighting against extending Sixth Amendment rights to sentencing. A former professor of administrative law and author of leading administrative law texts (see his bio here), Justice Breyer obviously has an affinity for administrative processes even at sentencing. It also explains my fear expressed here that the arguments of the Blakely dissenters might undermine claims of a right to counsel at sentencing. Lawyers are essential for fair adversarial processes; but if sentencing is to be more administrative, then the right to a lawyer is more questionable.
Finally, the adversarial/administrative distinction also helps explain why Williams v. New York, 337 US 241 (1949), which permits lax procedures in an indeterminate-sentencing regime, may have been sound at the time it was decided. Recall that Williams expressly defends lax sentencing procedures based on the then-dominant rehabilitative "medical" model of sentencing: the Williams court stressed that "[r]eformation and rehabilitation of offenders have become important goals of criminal jurisprudence," and the Court sought to foster "modern penological procedural policies" by ensuring judges have "the fullest information possible concerning the defendant's life and characteristics." The Williams court stressed that allowing judges access to out-of-court information is grounded in "the belief that by careful study of the lives and personalities of convicted offenders many could be less severely punished and restored sooner to complete freedom and useful citizenship." Id. at 249.
If in fact the prosecutor, probation officer, judge and parole official are all trying to devise the least severe sentence to "cure" a "sick" offender, an administrative model of sentencing makes sense. Just as patients are not thought to need "procedural rights" when being treated by a doctor, defendants at the time of Williams were not thought to need such rights when being sentenced by a "medical model" sentencing court seeking to give "careful, humane, and comprehensive consideration to the particular situation of each offender." But, of course, "modern penological procedural policies" have changed drastically over the last 30 years. Though the demise of rehabilitation as a penal theory may be overstated, there is no doubt that sentencing is today predominantly about imposing punishment, not about devising a cure.
As Judge Nancy Gertner highlighted in her Mueffleman decision (available here), in the federal system the major decisions about the imposition of punishment have been made by Congress and the Sentencing Commission (an administrative agency). Thus, after a prosecutor makes a variety of discretionary charging and bargaining choices, the judge's role is "transformed to 'just' finding the facts, now with Commission-ordained consequences" but "with fewer safeguards, less formality, and far less legitimacy" than what should prevail in a fair adversarial system.
In short, the Blakely decision ultimately reflects the fact that we reformed the substance of our sentencing laws without reforming the procedures. Blakely finally recognizes that, in a world in which sentencing is about punishment and no longer about curing, we should no longer be comfortable relying on administrative procedures at sentencing.
Interesting state Blakely news
Though the federal sentencing story will take center stage later today when the respondents and amici file briefs in Booker and Fanfan, today's papers have more interesting news on Blakely in the states. From Maine, this article details that the Maine Supreme Court later this week will hear additional argument in two pending cases in order to examine the impact of Blakely.
From Tennessee, this article reports on the interesting and challenging work of the Governor's Task Force (previously discussed here and here) which was assigned the task of devising an effective response to Blakely for Tennessee. In addition, this editorial urges a set of responses to Blakely for Tennessee and federal sentencing.
September 20, 2004
The Vera Institute Speaks Again!!
As detailed here, the Vera Institute of Justice — which has been at the forefront of state sentencing reform through its State Sentencing and Corrections Program (SSC) — was at the forefront of covering the impact of Blakely in the states through its publication last month entitled "Aggravated Sentencing: Blakely v. Washington – Practical Implications for State Systems."
Vera has now kept up the great work by having now released — just in time for its big conference noted here — a second report entitled "Aggravated Sentencing: Blakely v. Washington – Legal Considerations for State Sentencing Systems." The full report can be accessed here, and it provides the most comprehensive and insightful account of the mess that Blakely may create for the states. The report is a must-read for all Blakely fans, and I will quote here a valuable overview provided by SSC director Dan Wilhelm:
As Blakely continues to sow confusion and anxiety in many quarters of the criminal justice world, it is worth noting that much of the reported chaos has been confined to the federal system.... State sentencing systems, varied as they may be, simply are not as dependent on judge-found facts at sentencing — the heart of Blakely — as is the federal system. This means provisions that offend Blakely are easier to avoid for the time being, as state courts begin to sort out how the decision applies to their systems....
Many states have better recent experience in gathering together politically accountable officials to think about and construct sentencing reforms that are not only workable and public-safety minded but that squarely observe other aims — related to fairness, proportionality, and resources — that led many to revisit their sentencing schemes in the first place. The existence of productive entities such as sentencing commissions, working groups, legislative judiciary committees, and others gives many states a leg up in tackling Blakely.
It also presents a potential opportunity, as this second in our series of Blakely papers suggests. Can the occasion of the Court’s decision encourage states not only to fix problems in their systems created by Blakely but also to explore policy changes that further protect the public while advancing justice? It is admittedly a tall order. The coming months will tell whether states seize and exploit the challenge the Supreme Court has handed them.
Powerful report with lots of data and insights
In a post last week here, I previewed a report coming from the Death Penalty Information Center entitled "Innocence and the Crisis in the American Death Penalty." The full report is now available here, and it includes a lot of interesting data on the application of the death penalty over the last 30 years. As the title suggests, the report's focus is particularly on the number, pattern and nature of exonerations of persons sentenced to death.
Though there is much in report worthy of thoughtful commentary, I was struck particularly by this observation concerning the realities of sentencing reform:
New Proposals for Legal Reform: numerous public and private commissions have made recommendations to improve the reliability and fairness of the justice system in handling capital cases. Some have called for a halt to all executions while this crisis is being addressed. For the most part, only the most modest reforms have been adopted.
This telling observation is one of the many reasons I have lately become a fan of the Blakely decision. No shortage of public and private commissions have made recommendations to improve the operation of the federal sentencing system; for just very recent examples, consider the potent ABA Kennedy Report (available here) and the American College of Trial Lawyers report (available here). And yet, before Blakely, all the "reforms" were going in the opposite direction as evidenced by the Feeney Amendment and the proposal of "Feeney II" (background here). After Blakely, there is real talk of real reform (although I realize a lot of folks inside and outside the Beltway expect things to get worse, not better, in the wake of Blakely).
More insights on severability
In posts here and here last week, I raised various practical questions about the reach and consequences of the Solicitor General's arguments that, if Blakely applies to the federal system, then the federal guidelines are not severable. But, lest I be accused of placing pragmatism over principle, I should note here that I have thought from the outset that principled severability analysis also would support finding the guidelines severable because to do so seems to me to be more in keeping with the intent of Congress when it passed the Sentencing Reform Act.
Helpfully, late last week I received a copy of a district-court brief (with the client's name redacted) filed by Patrick O'Donnell of the firm of Harris, Wiltshire & Grannis, which does an extremely effective job of articulating why I have instinctually felt that finding the guidelines severable would better effectuate the intent of Congress when it passed the SRA. This brief can be downloaded below, and here are a few key passages:
The legislative history of the Sentencing Reform Act of 1984 (SRA) shows no particular intention by Congress that judges rather than juries find sentencing elements, and the determinative-sentencing Guidelines system can operate with either judge or jury finding such elements. Moreover, the legislative history does show a very deliberate effort to cabin judicial power, and Blakely’s holding that the Sixth Amendment requires juries rather than judges to find sentencing elements is entirely consistent with Congress's purposes in enacting the SRA....
Taking the Guidelines as "advisory" only while proceeding to sentence on Guidelines-driven judicial fact-finding, as the government suggests, is tantamount to simple defiance of not just Blakely's instruction but of Congress itself. That approach would defy Blakely by simply following the Guidelines approach and denying the defendant's Sixth Amendment right to a jury verdict on the decisive accusations, while giving lip service to Blakely itself. And it would defy Congress in at least three ways: 1) the frustration of Congress's decision to implement a determinative sentencing system, 2) the rejection of the value judgments made by the Sentencing Commission and approved by Congress regarding specific offense conduct, and 3) the judicial adoption of an alternative Congress expressly rejected: "[t]he Judiciary Committee rejected a proposal that would have made the sentencing guidelines only advisory." Mistretta, 488 U.S. at 367.
More great WSJ coverage of our administative system of justice
Of course, I have long had a warm spot in my heart for WSJ reporter Laurie Cohen and the Wall Street Journal (especially since they did this profile of this blog). But the coverage they Cohen and Gary Fields of the WSJ give of the federal sentencing system today merits an extra loud shout out. In addition to the terrific article on the humans lives in the Blakely balance discussed here, the WSJ also today has a fantastic piece entitled "Federal Sentencing Changes Could Strain Probation System" about the place of the probation officers in the federal sentencing system and concerns about the impact of Blakely on their role and responsibilities.
Both WSJ articles are so rich with information that they merit multiple reads, and neither can be succinctly summarized. Nevertheless, one telling line in the probation officers' article merits quoting here:
[I]t would be hard to overstate the importance of probation officers' investigations in the length of federal sentences. Often sentences are "based almost exclusively on the information in the pre-sentencing report," [New Mexico's US Chief District] Judge Martha Vazquez says.
Both WSJ articles are so important not only because they provide a human perspective on all the legal debates surrounding Blakely, but also because they dramatically reinforce the realities of how "administrative" the federal system of criminal justice has become. I hope to be able to post at length later today about the contrasting realities of an adversarial and an administrative criminal justice system.
The human face of Blakely
I could not have been more wrong when I said there are not many Blakely news stories this morning. In fact, today's Wall Street Journal has an article by Laurie Cohen and Gary Fields which may be the the most important Blakely article in some time because it tells the human stories behind the operation of the federal sentencing system and its "relevant conduct" rules.
The article is entitled "Reasonable Doubts: How Judges Punish Defendants For Offenses Unproved in Court," and has the subtitle "Stories of Five Convicts Show That Charges in Dispute Can Multiply Prison Time." The lead of the story captures the essence of the human tales: "Laurence Braun learned the hard way that being acquitted of a crime doesn't always stop you from being punished for it."
In addition to telling compelling stories about the use of acquitted and uncharged conduct to increase federal sentences — including the case of Jimmy Bijou, who had a federal judge exclude a jury from considering tainted drug evidence but thereafter at sentencing used the exact same evidence to double his sentencing range — the article is also extremely important for being the first to report on an issues I have be asking about for some time, namely how many federal cases have Blakely factors (background here). According to this WSJ article:
More than 44% of all cases in 2002, the last fiscal year for which data are available, had enhancements that may now be thrown into question by the Blakely ruling, according to a U.S. Sentencing Commission internal memo.
Morning sentencing commentary
Though there are not many Blakely news stories this morning, interesting sentencing commentaries can be found in this op-ed piece on Blakely from the LA Times, this editorial about mandatory minimums in The Salt Lake Tribune, this editorial about efforts to amend California's Three-Strikes Law in The San Francisco Chronicle (which I discussed recently here). Also, Howard Bashman at How Appealing has collected more commentary on California's Three-Strikes Law here.
September 19, 2004
Mark your calenders, big weeks ahead
There are so many noteworthy and important sentencing events in the coming weeks, my PDA might just run out of memory. As noted below, September 21 is a major day for at least three reasons, and the Blakely fun does not let up after that at all:
1. As detailed here, the Heritage Foundation has scheduled for Tuesday, Sept. 21 an event entitled "Federal Criminal Sentencing: Where Are We and Where Do We Go Next?". The participants in this event are all huge names in the modern story of federal sentencing reform.
2. As noted before here, the Vera Institute of Justice has been doing path-breaking work on what Blakely means for state sentencing systems. And from Sept. 21-23, Vera will conduct a major conference entitled "The Realities of a Post-Blakely World." The folks at Vera report that the meeting is to provide state delegations an "opportunity to engage with each other and with leading practitioners and experts to develop feasible strategies – both immediate and longer-term – for responding to the Supreme Court's ruling in Blakely."
3. Last but certainly not least for Sept. 21, the Respondents and all supporting amici in Booker and Fanfan have their briefs due to the Supreme Court.
4. As noted before here, on Sept. 24 the University of Toledo Law Review will host a symposium on "The Legal Barriers to Reentry in Ohio: Collateral Sanctions in Theory and Practice." An updated version of the schedule for the event can be downloaded here:
5. Keeping up the pace, Sept. 27 is when the Government's reply brief is due in Booker and Fanfan, and oral arguments in these cases is slated for the afternoon of Oct. 4.
6. As noted before here, Oct. 8-9 brings Stanford Law School's major event entitled "The Future of American Sentencing: A National Roundtable on Blakely." An updated version of the plans and amazing list of participants for this event can be downloaded here:
Do Justice Breyer and other Blakely dissenters think the Sixth Amendment right to counsel should not apply at sentencing?
As noted here, the more I think about Blakely the more questions I have. And, as I re-read the Blakely dissents, I started to question how far the Blakely dissenters might carry their concerns with the practical consequences of extending the reach of the Sixth Amendment.
Specifically, it is hard not to notice how often Justices O’Connor and Breyer lament the "costs" of Blakely’s holding. (Justice O'Connor uses the word "cost" five times, and expresses her practical concerns in many other ways as well.) This sort of language is what previously prompted me here to describe the debate over Blakely in terms of a battle of principle versus pragmatism: the dissenters do not seem to present principled arguments against the majority's holding, they seem to rely on pragmatic concerns about the consequences of the majority's holding.
But, upon reflection, I wonder if it might be more appropriate to suggest that the Blakely debate is not as much about ends, but about means. The dissenting Justices are surely principled, they may just believe that Blakely's holding — that defendants at sentencing have a Sixth Amendment jury trial right and a Due Process right to proof beyond a reasonable doubt — does not serve constitutional principles. Justice Breyer, for example, summarizes his "concerns about the serious practical (or impractical) changes that the Court’s decision seems likely to impose upon the criminal process" by noting:
the tendency of the Court’s decision to embed further plea bargaining processes that lack transparency and too often mean nonuniform, sometimes arbitrary, sentencing practices; about the obstacles the Court’s decision poses to legislative efforts to bring about greater uniformity between real criminal conduct and real punishment; and ultimately about the limitations that the Court imposes upon legislatures' ability to make democratic legislative decisions.
As always, Justice Breyer articulates his views thoughtfully and effectively, but this passage got me to realize how much the Sixth Amendment's right to counsel may undermine the constitutional principles (or "practical" concerns) that Justice Breyer seems to champion.
First, realize that defense lawyer help secure valid plea agreements; ergo, defendants' right to counsel tends to "embed further plea bargaining processes." Second, we have learned from capital sentencing literature that who gets the death penalty often depends on who has the worst lawyer, not who commits the worst crime; ergo, because of difference in the quality of provided counsel, the right to counsel may pose obstacles "to legislative efforts to bring about greater uniformity between real criminal conduct and real punishment." Third, legislature have repeatedly shown that they would rather not pay for defense counsel (public defender programs are chronically underfunded); ergo, the requirement that states' must provide counsel "imposes upon legislatures' ability to make democratic legislative decisions." And, of course, considering Justice O'Connor's focus on costs, it is quite costly for states to have to provide defendants with a lawyer.
In sum, my basic point is that the practical arguments against granting defendants a Sixth Amendment jury trial right and a Due Process right to proof beyond a reasonable doubt at sentencing might also argue against granting defendants a Sixth Amendment right to counsel at sentencing.
Of course, I am not seriously worried that any court would re-consider the now long-established right to a lawyer at sentencing. Indeed, the Supreme Court recently strengthened that right in a guidelines world through its unanimous holding in Glover v. US, 531 U.S. 198 (2001). (In fact, in Glover, Justice Kennedy asserted for the whole Court that "our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance".)
But my point is that we are very comfortable — indeed, very proud — of bearing the "costs" of providing defendants with lawyers because we understand that a truly just criminal justice system should bear the cost of extending the Sixth Amendment right to counsel to sentencing. Similarly, I am starting to think Blakely is the first step in recognizing that a truly just criminal justice system should bear the cost of extending the Sixth Amendment jury trial right and a Due Process right to proof beyond a reasonable doubt to sentencing.
Striking Three Strikes?
Today's LA Times Magazine has this (very long) article about Proposition 66, the initiative on the November ballot to amend California's Three Strikes law. The article is well worth the time it takes to read; there is a wealth of information and insights about the realities of the law itself and about the politics surrounding efforts to change the law. Relatedly, Jonathan Soglin over at Criminal Appeal has collected here an array of recent newpaper articles on Proposition 66.
Interestingly, and not surprisingly, there are a number of websites and web resources which provide a lot of (competing) information about California's Three Strikes laws and the Proposition 66 amendment effort. For example, here is one site called Restore Three Strikes, and here is a competing site called No On 66. In addition, I recently was informed that the Justice Policy Institute (JPI) will soon release a new report entitled "Three Strikes and You’re Out: An Examination of the Impact of Strike Laws 10 years after their Enactment," which asserts that the majority of people incarcerated under three strikes laws are "non-violent" offenders and that states without Three Strikes laws actually saw greater decreases in violent crimes than those with Three Strikes laws. JPI, which describes itself as "a nonprofit research and public policy organization dedicated to ending society’s reliance on incarceration and promoting effective and just solutions to social problems," has done a lot of previous important and valuable work on three strikes laws and on other issues relating to the scope of imprisonment (see, e.g., publications available here and here).
In my mind, the debate over Proposition 66 reflects many aspects of the current, often confused, public dialogue over crime and punishment. Everyone wants violent, repeat offenders put away for a long time, and but the broad reach (and great expense) of California's Three Strikes law raises questions about the justice and efficacy of its approach to achieving that goal. How politicians and the public come to view and frame these issues in the context of Proposition 66, and the ultimate fate of using "direct democracy" to cut back on a harsh mandatory sentencing law, may well provide important insights into the the future of sentencing reform and its relationship to concepts of democracy (a topic I recently discussed here). Stay tuned.