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October 5, 2004

Now, the more intersting story...

Though I still have pages and pages of undeveloped notes from yesterday's Booker and Fanfan argument, I have already worn myself out with the half-dozen posts about the event to be found below. Moreover, when all is said and done, I think the story of Blakely in the states is even more interesting (and often less discouraging) that the federal Blakely story. And, as is now true nearly every day, there are new state Blakely developments to report.

Specifically, from North Carolina, today we get a Blakely reversal in State v. Harris, 2004 WL 2215184 (N.C. App. Oct. 05, 2004), in a case involving the imposition of an aggravted term based on a judicial finding that the defendant's offense was "especially heinous, atrocious, or cruel." From Minnesota, we get remands in two cases involving upward departures so that sentencing courts can consider the impact of Blakely. See Santiago v. Minnesota, 2004 WL 2221929, (Minn. App. Oct. 05, 2004); Minnesota v. Seelye, 2004 WL 2219663 (Minn. App. Oct. 05, 2004). And, of course, no week would be complete without a California Blakely cases from the state's intermediate court, and in People v. Gaitan, 2004 WL 2212089 (Cal. App. 1 Dist. Oct. 04, 2004) we get a thoughtful remand for resentencing on Blakely grounds.

But the big state news today comes from Blakely's home state, Washington: an intermediate appellate court decision in State v. Van Buren, 2004 WL 2222263 (Wash. App. Div. 2 Oct. 05, 2004), makes an array of (interesting and debatable) rulings about what sorts of findings a judge can and cannot make under Blakely and Washington law. I hope to discuss the Van Buren case at some length later tonight.

October 5, 2004 in Blakely in the States | Permalink | Comments (0) | TrackBack

Justice Breyer's (lack of) perspective

As noted here, Duke University Law Professor Erwin Chemerinsky has been saying that Justice Stephen Breyer should recuse himself in Booker and Fanfan because he "is one of the 'parents' of the federal sentencing guidelines." Though I am not sure recusal is appropriate, it was clear from many of Justice Breyer's questions at oral argument yesterday that, like all parents, Justice Breyer does have a somewhat rose-colored perspective when he considers his guidelines "baby."

Only with the oral argument transcript (whenever it is available here) will I be able to effectively highlight how Justice Breyer's questions revealed his essential affinity for the existing guidelines. But I can here report that the overall tone of his questions — just like the overall tone of his Blakely dissent — seems infused with the belief that the federal guideline system he helped create (with its "relevant conduct" rules which require punishment on uncharged, unproven and even acquitted conduct) is the only way to develop a workable guideline system that limits the impact of prosecutorial plea bargaining and matches up real conduct and real punishment.

Beyond basic concerns about "parental" bias, Justice Breyer's positive views about the federal guidelines seem to be largely out-of-touch with the real day-to-day operation of the system (at least as I hear it described by trial judges and lawyers). Consider as evidence of a more sober reality the recent report (available here) from the American College of Trial Lawyers, tellingly titled "United States Sentencing Guidelines 2004: An Experiment That Has Failed." This report, which should be a must read for everyone contemplating the future of federal sentencing reform, thoughtfully explains why:

— "the [existing federal] Guidelines have created a sentencing system wherein the power to make decisions about sentencing has effectively been transferred from the judge to the prosecutor"
— "the 'real-offense' feature of federal sentencing greatly exacerbates unfettered prosecutorial discretion and promotes questionable prosecutorial practices"
— "difficulty in uniformly applying the multiple and complex provisions of the Guidelines and the variations in prosecutorial practice [together with variable departure practices] have resulted in disparate sentences imposed under the same Guideline provisions"

and finally
While the goal of eliminating unfair disparity in federal sentences was laudable, the Guidelines themselves are an experiment that failed. The Guidelines, together with the increasing number of mandatory minimum sentences, have created a system that is too complex, rigid and mechanistic. The existing system places the goal of uniformity above all other policies and, most significantly, above the goal of justice in the individual case. The elimination of unfair disparity in sentencing, to the extent this has been accomplished, has been only superficial.

Put another way, though Justice Breyer's vision of the federal guidelines may be sound in theory, it has proven problematic in practice. Moreover, though Justice Breyer obviously fears a charge-offense guidelines system could exacerbate the impact of pleas and prosecutorial power, the basic success of most state guideline systems has shown that charge-based systems can be generally effective. (Or, at the very least, they are not obviously much worse than the existing federal system when it comes to the impact of prosecutorial power). See generally Richard S. Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Fed. Sent. Rep. 69 (1999).

In sum, reports from inside the system indicate that Justice Breyer's federal guidelines "baby" in fact suffers from at least a touch of jaundice. Whether the application of Sixth Amendment rights will cure the "baby" remains to be seen, but I hope Justice Breyer is able to appreciate that the baby may at least need some sort of legal check-up.

October 5, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (16) | TrackBack

Justice Kennedy's interesting interest

In the course of my Legal Affairs debate last week (available here), I lamented that the Blakely line of cases has a troublesome "binary" quality because some matters of relevance at sentencing are getting labeled "elements" (or the functional equivalent), in which case the full panoply of constitutional procedural rights are deemed fully applicable. But other matters, so-called "sentencing factors," garner the application of very few procedural rights. As I explained in the Debate Club:

Instead of relying on the Sixth Amendment to regulate sentencing procedures in this binary way, I might have preferred the Supreme Court to have developed more nuanced sentencing regulations through the Due Process Clause in order to give legislatures (and sentencing commissions) more flexibility to develop other procedures that would protect defendants' rights at sentencing.

Because of this view, I was quite intrigued when at oral argument Justice Kennedy seemed interested in exploring with Acting Solicitor General Paul Clement whether different sorts of facts might justify different sorts of treatment under the Blakely rule. Though the oral argument transcript (whenever it is available here) will reveal that this line of questioning did not go anywhere, I am somewhat hopeful that Justice Kennedy may try to develop a more nuanced approach to the (still developing) Blakely doctrine as the Justices start writing all this up.

Specifically, I would think it could be very beneficial for the Supreme Court to start working through a distinction between "offense facts" and "offender facts." It make a lot of sense to me — and even loosely fits with the existing Apprendi/Blakely jurisprudence — to require the government to prove to a jury beyond a reasonable doubt any and every fact relating to the offense, but to allow facts relating to the offender to be treated "administratively" under more lax procedures (see generally my post here distinguishing adversarial and administrative justice).

Helpfully, some courts and commentators have already started working through distinctions of this sort. Most notably, as explained in State v. Kaua, 72 P.3d 473 (Hawai'i 2003), the courts of Hawai'i have developed a jurisprudence in which so-called "intrinsic factors" are "required to be pled in the indictment and found by the jury" because they "are contemporaneous with, and enmeshed in, the statutory elements of the proscribed offense." Whereas, in contrast, so-called "extrinsic factors," which are factors "separable from the offense itself in that they involve consideration of collateral events or information" can be "found by the sentencing court after the defendant's adjudication of guilt at trial by the trier of fact." Similarly, in articles such as Kyron Huigens, Solving the Apprendi Puzzle, 90 Geo. L.J. 387 (2002), and David Yellen, Illusion, Illogic, and Injustice: Real Offense Sentencing and the Federal Sentencing Guidelines, 78 Minn. L. Rev. 403 (1993), and others, commentators have done important work exploring the nature and consequences of different sorts of facts for proof and procedure purposes.

Of course, as Hawai'ian jurisprudence reveals, a distinction between intrinsic and extrinsic facts is not self-defining. Or, slightly recast, there can be reasonable disputes over what qualifies as an offense fact and as an offender fact (e.g., role-in-the-offense might be arguably in either or both categories). Nevertheless, redefining Blakely's rule in terms of requiring jury trial and proof beyond a reasonable doubt not of all sentence-enhancing facts, but just of all sentence-enhancing "offense facts" I think advances the ball usefully. At the very least, I think an offense/offender distinction could be a more fruitful jurisprudential foray than the tail-wagging-dog jurisprudence that Justice Scalia regrets having lost in footnote 13 of his Blakely decision.

October 5, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Severability of FSG | Permalink | Comments (4) | TrackBack

A Fall Classic?

With a full slate of baseball playoff games starting today, hard-core baseball references will likely pervade this blog in the weeks ahead. As noted here and here, there are many compelling MLB playoff stories, and it is great fun to talk about Blakely through the lens of baseball lore. For example, it is easy to think of (Yankee fan) Justice Scalia as something of a modern-day legal Babe Ruth, with Blakely perhaps being his called shot.

Today I am thinking about whether we will have a World Series champion or a decision in Booker and Fanfan first. I encouraged guessing about the likely date of a ruling here, and a knowledgeable SCOTUS-watcher yesterday suggested November 1 as when we would see a decision (note that this schedule indicates the World Series will be wrapped up no later than October 31).

Though I continue to expect to see a decision in Booker and Fanfan sometime in November, the need for a quick ruling is considerable and yesterday's argument has me thinking we might see a decision this month. That possibility leads me to ask who could be the Supreme Court's "Mr. (or Ms.) October"?

Justice Thomas seems to have a bit of swagger like Reggie Jackson, the original Mr. October, and it is fun to speculate about the Justice's views on Booker and Fanfan. As is his custom, Justice Thomas did not say a word at yesterday's oral argument. But he has been one of the most "vocal" Justices in the Apprendi line of decisions, and I think there is a real chance he will get to write the opinion for the Court in Booker and Fanfan.

In honor of the greatest month in sports, I highly encourage readers to use the comments for more baseball-Blakely talk. Should we think of Justice Breyer as Abner Doubleday or Alexander Cartwright because of his role in creating the federal guidelines? Is Justice O'Connor the High Court's Jackie Robinson for breaking through the SCOTUS gender line (and might that in turn cast Justice Ginsburg in the role of Satchel Paige)?

Gosh this is fun, please join in. Football fans should feel free to chime in, too. However, since the departure of superstar Justice Byron "Whizzer" White — who was runner-up for the famed Heisman Trophy in 1937 — I think only Chief Justice Rehnquist has the stature to hold his own on the gridiron.

October 5, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

What was not discussed at oral argument

Posts here and here and here provide a sea of coverage of what was said at yesterday's oral argument in Booker and Fanfan. As many of these media and blog accounts highlight, there was plenty of discussion of how present and future federal sentencings might be handled in the wake of Blakely. (It is worth remembering here that if (when?) Congress gets involved, the realities of Ex Post Facto doctrine will limit its ability to impact existing cases; any changes which operate to lengthen federal sentences can only have prospective application.)

But not discussed at all during the argument was the critical question of how past cases could be impacted by Blakely — that is, no one mentioned the issue of retroactivity in any way. This is not really surprising; the retroactivity issue was not formally before the High Court in Booker and Fanfan, nor was it mentioned at all in any of the briefs. However, as I noted here and here, whatever the Justices say in Booker and Fanfan could have at least an indirect impact on the realities and the perceptions of whether the Blakely rule must be applied to sentences that became final before June 24, 2004.

Moreover, my crackerjack research assistant recently pointed out to me that in the modern uber-case on retroactivity, Teague v. Lane, 489 U.S. 288 (1989), Justice O'Connor writing also for Chief Justice Rehnquist and Justices Scalia and Kennedy suggested that "the question whether a decision announcing a new rule should be given a prospective or retroactive effect should be faced at the time of that decision." Id. at 300 (citation omitted). Obviously, the Supreme Court did not speak directly to retroactivity issues in Blakely. Indeed, the High Court has not yet even officially addressed Apprendi's retroactivity, even though Ring's non-retroactivity was settled with Shriro (see here and here for some general discussion of Blakely retroactivity issues).

I would be surprised if Booker and Fanfan formally address retroactivity questions, though there is certinly a huge prison population eager to make Blakely claims even when sentences long ago became final. As but one example, consider the recent state case of People v. Schrader, 2004 WL 2192550 (Ill. App. 1 Dist. Sept. 30, 2004): a defendant sentenced in 1982 raised Blakely to assail his 70-year murder sentence because the sentencing judge was able to add 30 years to the defendant's maximum sentence based on the find that the defendant's behavior was "brutal and heinous."

October 5, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

More reports on Monday's oral argument

On the assumption that you can never get bored reading accounts of the Booker and Fanfan arguments, after you read all the stories previously linked here you can then consider the reports from USA Today, The Chicago Tribune, The Boston Globe, The LA Times, The Pittsburg Post-Gazette, and The Houston Chronicle. Defendant focused reports come from The Wisconsin State Journal and The Portland Press Herald. Also, though I cannot provide a link, I am sure the Wall Street Journal continues its great coverage this morning, too. Perhaps with all of this coverage, DOJ can find one or two accounts of the argument which suggest they still have a chance of keeping Blakely from applying to the federal guidelines.

To follow up some of my late night reflections from last night to be found here and here, later today I will have some comments on the way I think Justices Breyer and Kennedy are looking at the cases. I also hope to finish my "Top Ten List of Cool Moments from my DC day."

October 5, 2004 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Reflections on the arguments on severability

Ultimately, the real action in Monday's argument concerned severability because the five Justices in the Blakely majority essentially decided Blakely's applicability to the federal system when they decided Blakely. Everyone understood back in June the impact of the ruling in Blakely for the federal system, and Fanfan's lawyer Rosemary Scapicchio astutely started her argument by reminding the Court that the government argued back in Blakely that if the Washington guidelines fell then so would the federal guidelines. (Indeed, Scapicchio came very close to accusing the SG of flip-flopping.)

On the issue of severability, Tom Goldstein's post here and a report from Mark Stancil here provide some helpful (though distinctive) head-counting of the Justices' apparent views on severability. What fundamentally makes this issue so hard is that the two primary options facing the Court both seem problematic: the SG's argument for advisory guidelines, as Justice O'Connor observed, seems to fly directly in the face of Congress's obvious interest in creating binding sentencing guidelines; the defense bar's argument for jury fact-finding is a potential administrative nightmare because of how many complex factual issues the guidelines sometimes make relevant to sentencing.

However, as I have detailed in a number of posts (see here and here), I do not think the mess created by jury fact-finding would be so great, and I think the mess created by treating the guidelines as advisory in some cases would be considerable. Justices Stevens and Scalia both seemed to appreciate this first reality: at oral argument, Justice Stevens embraced the idea beautifully developed in the NAFD's amicus brief that plea deals will take care of most cases and trials can be adjusted in the remaining cases, and Justice Scalia suggested that the consequences of applying Blakely to the guidelines would have just a "one-shot impact" for on-going cases.

Moreover, because everyone seems to want the guidelines to apply in cases without Blakely factors, as Tom Goldstein explains here, I do not see how the Court could ultimately adopt the SG's "dual system" proposal. Two judges who have really grappled with the SG's dual system proposal (Judge Gertner in Meuffleman and Judge Presnell in King) have forcefully explained the illogic and inconsistency with congressional goals of uniformity which results from having the guidelines fully applicable in cases without Blakely factors, but wholly advisory in cases with Blakely factors.

Mreover, even putting aside concerns of logic and congressional intent, I just do not understand how the SG's proposed dual system goes about deciding which cases are in which system. Let's consider, as just one example, the Enron defendants. I believe these defendants had their indictments "Blakelyized;" because the government is alleging some Blakely factors, it would seem the Enron defendants if/when convicted would be subject to advisory guidelines sentencing. But what if the defendants contest the alleged Blakely factors? Does the judge have to make an initial determination of whether a Blakely factor exists to answer the threshold question of whether the guidelines will be binding or advisory? Critically, in order for plea negotiations to be able to develop effectively, the parties are going to want to know which sentencing system is going to apply as soon as possible. But it is hard to understand exactly when and how that determination is to be made; indeed, it seems possible that the "which system" determination could change at the last minute if/when a probation officer discovers some unrealized Blakely factor during a pre-sentence investigation.

The defense lawyers have complained the SG's proposed dual system permits prosecutorial manipulation because a prosecutor could allege or not allege a Blakely factor depending upon which system the prosecutor wants applicable. But, critically, the dual system would also be subject to defense manipulation. If a defendant thinks he might do better with advisory guidelines, he might try to concoct a minor Blakely factor — e.g., offer a $10 bribe to the probation office to implicate the obstruction of justice enhancement — with the goal of freeing the judge from the guidelines. And, in addition to the struggles the parties will have at the charging and plea stages if they cannot know what system of sentencing will apply, probation officers may be placed in a very difficult position if their pre-sentence reports are going to have a dispositive impact on whether the guidelines are fully applicable or wholly advisory.

In sum, though the idea of making the guidelines advisory on the surface appears more tenable than requiring jury fact-finding, the nuts-and-bolts challenges of administering a dual sentencing system seem enormous. Perhaps defense attorneys and line prosecutors will report in the comments that they can envision how such a dual system would work, but I suspect it is an idea that (like alternative sentencing) makes a lot more sense in theory than in practice.

October 5, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Severability of FSG | Permalink | Comments (1) | TrackBack

October 4, 2004

Reflections on the SG's argument on Blakely's applicability

Arguing for the government, Acting SG Paul Clement very effectively framed the issues facing the Supreme Court in an effort to highlight the "carnage and wreckage" that would flow from applying Blakely to the federal guidelines. Clement noted at the outset that there are 1200 federal criminal sentencings each week, and he suggested they could all be suspect if Blakely applies to the federal system. He also strongly argued that Dunnigan, Witte, Watts and Edwards all conveyed a particular understanding of the guidelines as distinct from the statutory maximums enacted by Congress.

Clement cleverly focused on the fact that in Watts essentially the whole court, save Justice Stevens, in summary fashion rejected a challenge to the use of acquitted conduct in guidelines sentencing. He also ultimately asserted that the key precedent really at stake was Mistretta, as he suggested that Mistretta itself would have to be reversed because the respondent’s argument would essentially mean that the US Sentencing Commission has functionally created elements for thousands of new federal crimes.

I think Clement is right when saying that extending Blakely to the federal guidelines would essentially overrule Watts. But that is, in my view, another argument for extended Blakely. Every year I teach Watts in my sentencing courses, and every year students are aghast that the existing guidelines require judges, based on preponderance findings, to enhance sentences based on facts relating to charges on which a defendant was acquitted. It is very hard for a criminal justice system to endorse Watts and also claim to have a serious commitment to the jury right.

But I think Clement is wrong when saying that extending Blakely to the federal guidelines would essentially overrule Mistretta. This claim is based on the assertion that extending Sixth Amendment rights to guideline factors would turn them into de facto elements. But because such guideline factors require judges to impose longer sentences, they truly are already de facto elements (and this is why Ex Post Facto law limits the application of new guidelines to old cases). In other words, defendants now feel substantively the impact of guidelines factors as if they were elements, and the SG is just arguing that defendants should not be provided the usual procedural protections that accompany such elements. This is what gives the government's argument a "through the looking glass" quality: according to the government, defendants get full procedural rights when Congress substantive increases sentences, but they do not get these rights when a (less democratically accountable) administrative agency increases sentences.

As I noted in a prior post and as others have noted throughout the blogsphere and in the media, it does not seem Clement was winning any converts with his (well crafted but very uphill) arguments. Indeed, the most interesting interchange during this part of the argument was when Justice Kennedy started to explore with Clement whether different facts might get different treatment under the Blakely rule. This led me to wonder whether Justice Kennedy was hoping to engineering a more nuanced approach to the (still developing) Blakely doctrine. No one followed Justice Kennedy's lead at oral argument, but I think he may be on to something that could merit some time and energy as the Justices start writing all this up.

October 4, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (6) | TrackBack

Read (and read some more) about the oral argument

Helpfully, fellow bloggers and the traditional media continue to do a great job covering the essentials of today's SCOTUS arguments. The SCOTUS Blog has great posts by Tom Goldstein here and here, and the Blakely Blog fills out its play-by-play here and here.

And, the media chimes in on the argument through pieces from The New York Times, Legal Times, The Washington Post, The Baltimore Sun, The Dallas Morning News, and Knight Ridder. Bonus points to any reader who works through all these accounts and comments upon whether they paint similar or distinct pictures of what happened today. I can tell you that Dahlia Lithwick, as is her special gift, provides the most entertaining version of the argument at Slate here.

I have no plans to try to replicate any of these efforts. Rather, in a series of posts to follow tonight and tomorrow, I plan to contribute a variety of reflections about a variety of aspects of the arguments. I'll start, in a few minutes, with reflections on the Petitioner's arguments on applying Blakely to the federal guidelines.

October 4, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Media report on today's oral argument

Though many more will surely follow, here and here and here you can find the first reports on today's oral argument in Booker and Fanfan provided by the traditional media.

UPDATE: And now you can get the promised "reports from the front" from How Appealing here and from the Blakely Blog here. Both reports are fantastic, and I now have to go catch a plane. I expect by the wee hours tonight I will be able to share some more of my own perspectives on today's fun.

October 4, 2004 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

First reactions to the Booker/Fanfan oral argument

Though I will need many, many posts to fully capture my take on today's oral argument, a few moments of wireless access allow me to provide some quick first reactions.

First, I agree with Tom Goldstein's post here that the Blakely five will stay together to apply Blakely to the federal system. The pre-argument buzz was that Justices Souter and Ginsburg might shrink away from extending Blakely, but their questions to Acting SG Paul Clement (who did a brilliant job) suggested that they both were firm on this issue.

But oral argument also suggested everyone is still struggling with the remedy after concluding Blakely applies to the federal system. Justice Stevens pressed the SG about how many cases would really be impacted if Blakely applies to the guidelines, and this may be a critical concern for the Justices as they work through the severability question. (This also lead me to reiterate the plea I made here for the US Sentencing Commission to shed more light on this issue by making widely available whatever data it has assembled).

How (and when) the Justices will sort through the severability matters remains the biggest question in my mind after hearing today's arguments. More commentary -- a lot more -- later tonight.

October 4, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (2) | TrackBack

One last revving up for First Monday

I could not help but post one more time this morning to highlight that fellow bloggers are likely to have nearly up-to-the minute reports on today's arguments in Booker and Fanfan, or at least so claim Howard Bashman at How Appealing here and Jason Hernandez at the Blakely Blog here.

I expect that in the wee hours tonight I will have a chance to review their accounts and provide my own perspective on today's big argument. In the meantime, remember you can check out some of my recent posts of note here and other Blakely basics here.

October 4, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

October 3, 2004

A final gearing up

I likely won't get a chance to post at all tomorrow as I spend the day around the Supreme Court and attend the Booker and Fanfan arguments, and then fly back home in the evening. I plan to report on the arguments no later than Tuesday, though I suspect traditional media outlets will do a better and quicker job than me on the essential play-by-play.

As a final prep for the big day, Linda Greenhouse has here her preview of the coming SCOTUS term, with Booker and Fanfan getting the lead. And The Christian Science Monitor has this thoughtful article about these cases. And Jason Hernandez of the Blakely Blog has done some interesting forecasting here about the oral argument and here about the possible outcome in Booker and Fanfan.

October 3, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Inside the Beltway and thinking about Congress

I am now inside the Beltway and gearing up for tomorrow's action in the Supreme Court. But Professor Mark Osler's sobering report from DC (details here) has me really thinking about the likely action in Congress after Booker and Fanfan are decided (whenever that might be).

In written testimony a few months ago, I encouraged Congress to "go slow" in response to Blakely (available here). But though Congress has been patient so far, Professor Osler's report suggests that Congress (aided by the Department of Justice) has its pencils sharpened with plans to write and enact a litany of mandatory minimum statutes if the existing federal structure is nicked in any way by the rulings in Booker and Fanfan. However, while in transit today, I thought of at least a few legal and policy factors that should give Congress pause before rushing forward with a raft of new mandatory minimum sentencing statutes:

1. The ruling in Harris is not rock solid. Though everyone seems to assume mandatory minimum sentencing is immune from the Apprendi/Blakely rule due to the High Court's decision in Harris, Justice Breyer expressed great reservations about his vote in that case. If Congress passes an array of mandatories after Booker and Fanfan, serious reconsideration of Harris might come sooner rather than later.

2. Judge Cassell might lead an Eighth Amendment charge against mandatories. Judge Cassell's serious questioning of the substance of mandatory sentencing outcomes in the Angelos case (discussed here) could set a model for other judges concerned about harsh mandatory outcomes. If Congress passes an array of mandatories after Booker and Fanfan, judicial questioning of the application of mandatory minimum statutes could become the norm rather than the exception.

3. High-profile cases show the flaws of severe mandatories. While Judge Cassell is putting the spotlight on the harsh possibilities of mandatory sentences, the lenient plea deal struck by football star Jamal Lewis spotlights the impact of prosecutorial discretion in the operation of these laws. As this article details, Lewis is accused of an offense with a 10-year mandatory minimum, but apparently a pending plea deal will mean he serves less than six months. If Congress passes an array of mandatories after Booker and Fanfan, scrutiny of prosecutorial discretion in the operation of these laws might become more significant.

4. The federalism revolution might really come to criminal law. As many SCOTUS preview articles highlight, another huge criminal case this fall considers, in the context of a medical marijuana case, Congress's authority to criminalize "local" drug crimes. If Congress passes an array of mandatories after Booker and Fanfan, the courts could get even more serious about requiring a serious connection to commerce before allowing federal criminal laws to operate.

October 3, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

And away we go

Today marks First Monday Eve, a day that is always exciting for a law geek like me. And in today's newspapers, we find still more interesting SCOTUS preview articles (previous pieces in this genre can be found here and here). For example, this article suggests we can expect a "nuts-and-bolts term," while this preview article predicts "more drama," while this article optimistically asserts that the High Court will "clarify confusing opinions." Distinctly, here is an interesting op-ed about Justice Clarence Thomas, and Howard Bashman at How Appealing has his usual comprehensive coverage for your reading pleasure.

But of course, for a sentencing geek like me, First Monday this year is extra exciting because of the Booker and Fanfan arguments scheduled for tomorrow afternoon. And today's papers have some effective coverage of these cases: this article does a nice job going over the basics, as does this article from Maine which also gives special attention to the Fanfan case. This piece from Oklahoma discusses the local angle vert well, as does this piece from California (despite misspelling Blakely). And, not surprisingly, this article at law.com provides the most legalese about the case in its review of the parties' arguments.

Joyously, thanks to a long-time friend and colleague, I was able secure a ticket to tomorrow's argument. I head to DC later this morning and may be off-line until Tuesday morning while traveling (though I do hope to have a hotel internet connection late tonight). Though I would blog live from the SCOTUS argument if that was permitted, I may not get a chance to report on the arguments until Tuesday. Helpfully, Jason Hernandez of the Blakely Blog reports here that has made arrangements for transcription of his thoughts of the big event and I would expect the big hitters at the New York Times and Wall Street Journal will do a great job reporting on the argument in the more traditional media outlets.

October 3, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Ivory tower optimism meets inside the Beltway realism

I explained earlier this week here why I am optimistic about the future of sentencing reform, but I have conceded here that meaningful sentencing reform may seem much more possible when considered from the ivory tower than from inside the Beltway. Additional proof of these dynamics comes from a set of "DC Observations" I received from Baylor Law Professor Mark Osler this morning.

Long-time readers know that Professor Osler (writing now, of course, from the ivory tower) has suggested one of the most sensible and straight-forward "solutions" to reforming federal sentencing after Blakely. (Professor Osler's thoughtful "3x Solution" can be accessed here.) But, after a trip to DC for research purposes, Professor Osler shares these sobering observations of the future of federal sentencing reform:

Below are my four principle observations from my DC adventure:

1. In the end, Booker and Fanfan aren't very important (unless the Court does not apply Blakely to the Guidelines). As you have written, given the composition of the Blakely majority it is hard to believe that anyone in the majority will defect, and it is clear that Blakely will be applied to federal sentencing. All of our fussing about severability, however, will be pointless. Once Blakely is applied to federal sentencing, Congress will act, regardless if all or part of the Guidelines fall. It is Congress, not the Court or the USSC, that will remake sentencing — the Court's role will be just to provide the impetus for change, and the USSC's job will be to follow very specific Congressional mandates, ala Feeney.

2. Once the Guidelines fall, there will be no great debate on what comes next. Rather, as with Feeney, the new rules will come down without significant debate. Newt Gingrich has a lot to do with this. When he became House Majority Leader, he did two things to the process: (1) He curtailed the power of the committee chairs, increasing the power of the party whips; and (2) He halved the staffs of the committees. This latter change had profound effects. Because there are no longer enough staffers to write legislation, this job is largely performed now by lobbyists. On any given bill, the Republican powers assemble relevant lobbyists to draft legislation (at least on the House side) and pass it in party-line votes. For sentencing matters, the relevant lobbyists are from DOJ — they will, in the end, write the new legislation in the House. This means more mandatory minimums are on the way because that will be Main Justice's preference (as evidenced by the recent letter-to-the-editor campaign by DOJ bolstering current minimums), despite the opposition to same from AUSA's who actually try cases.

3. Don't count on decision-makers caring much what you think. Once I was convinced that the House was not approachable based on the above, I put on a full-court press to meet with someone from the office of Sen. John Cornyn (R-Tex), who is on the Senate Judiciary Committee. I contacted Cornyn's office by phone, email, and fax seeking only a few minutes with a staff member. In my communications, I made it clear that I was a constituent, and that I was a former AUSA who now teaches sentencing law in Texas. My pleas were ignored, and my calls went unreturned.

4. Finally, in all of the academic discussion of these matters, almost no one has discussed what may be ultimately most important: The election. That may be because many of us (myself included) are not very partisan politically. However, we can't ignore politics in making our prognostications. If Bush wins (and a Republican majority remains in the House, a near-certainty), all of the above will remain true. If Kerry wins, all of the above may also remain true, but there is a chance it won't. If the new legislation is stalled until a new administration comes in, the difference won't be at the end of the process (Kerry's ability to veto) but the front end — it is likely that the new AG will be less inclined to lobby for mandatory minimums, and will have a broader mind as to what reforms will be considered.


All of Professor Osler's observations are trenchant and provocative, and I hope I might reflect and comment on them late tonight. But, as I will explain in a following post, I am soon to be heading inside the Beltway myself, and I am now ever more fearful of what I will discover upon leaving the lovely confines of the ivory tower.

October 3, 2004 in Applicability of Blakely to FSG, Blakely in Legislatures, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack