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January 12, 2005

Rule by judges?

I am still trying to process all the opinions, and I fear I won't have fully thoughtful comments until the wee hours tonight.  But my first take is that the right and remedy creates an amazing irony: in a decision supposedly about respecting jury rights, the remedy will lead to sentencing rules developed by judges (until Congress perhaps steps in).  And this is thanks, I believe, to Justice Ginsburg as the swing vote.

Thoughts?

January 12, 2005 at 11:56 AM | Permalink

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Comments

You are right, Doug. Justice Ginsburg is the culprit. What the remedial majority did in the guise of severability analysis is nothing more than a naked exercise by the judiciary of raw legislative power.

Posted by: Steve Sanders | Jan 12, 2005 12:05:25 PM

Question: Are the Sentencing Guidelines still mandatory when there is no obvious Blakely violation (e.g. the defendant admits to the quantity of drugs in a plea agreement)?

Posted by: Mike | Jan 12, 2005 12:07:48 PM

Mike:

It sounds to me like the two statutory sections making the guidelines mandatory are excised in their entirety. Thus, the judge would have discretion even in cases like the example you gave.

Posted by: Brad | Jan 12, 2005 12:13:35 PM

Doug suggests that he sees "an amazing irony: in a decision supposedly about respecting jury rights, the remedy will lead to sentencing rules developed by judges."

Funny -- that was exactly my reaction to Blakely.

Posted by: Orin Kerr | Jan 12, 2005 12:15:57 PM

What about if someone signed a Blakely waiver
before this recent decision? Would the waiver
trump this opinion and force the judge to
apply the unconsitutional aspects of the
guidelines (i.e. the amount of loss in a
fraud case)

Posted by: Pat | Jan 12, 2005 12:17:49 PM

What was Ginsburg thinking? I'm sure she's read all the wonderful scholarly articles about the effect of a nonmandatory Guidelines system-- that (1) it will induce Congress to create bunches of mandatory minima (2) it does not give relief for the true constitutional problem (that is, the arbitrary decisionmaking of judges that Scalia asserts is the heart of the Sixth Amendment jury trial right) and (3) sentences will most likely be higher (because of hte current makeup of the federal judiciary, which, of course, doesn't stop Congress (which have appointed a large percentage of active judges) from labeling them all 'granola-crunchers' and enacting mandatory minima).
To take a line from "Plan 9 from Outer Space":

Your stupid minds. Stupid! Stupid!

Posted by: District Clerk Battling Blakely | Jan 12, 2005 12:20:52 PM

guidelines are advisory only. all statutory sentencing factors are to be considered in arriving at just sentence. review on appeal is limited to whether sentence imposed based upon judge's application of sentencing factors to defendant's case was unreasonable.

steve sadow
criminal defense atty in atlanta

Posted by: steve sadow | Jan 12, 2005 12:23:54 PM

Maybe I'm being a little too Pollyanna-ish but isn't the court's overall approach going to take the steam out of a congressional "fix"? I'm a crusader and wish the world were different but in today's climate, I'm pleased at least to have half a loaf to work with. If Ginsburg hadn't been convinced to compromise (to all of our disappointment), I wonder if we would have gotten something much worse than what the Court has now wrought.

Posted by: Alex E. | Jan 12, 2005 12:26:20 PM

Here's an idea:
Do you think, the "second majority" on Breyer's opinion p.7 believes that the Stevens dissent idea (adding juries, etc) is the RIGHT approach, but they feel constrained that the Court cannot dictate such an approach JUDICIALLY -- (In other words, that's the big telegraph of how to fix the system?) If so, I can't imagine that Ginsburg really believes that she cannot implement such a system. Why did she vote this way?

Posted by: District Clerk Battling Blakely | Jan 12, 2005 12:27:14 PM

I too find it ironic... this all became an issue when a single judge enhanced a defendants' sentence (despite even the prosecutor recommending a sentence within guideline range)...
Now a single judge can either throw out enhancements not proven or admitted to or can utilize his discretion and use the guidelines as advisory.
Why don't we just elect a KING and see how anarchy works.
There are alot of people hoping for a sentencing windfall here. Instead there remains an unknown as to how each judge wants to interpret each case. Is this really progress? Roll the dice.

Posted by: Bill | Jan 12, 2005 12:27:56 PM

Does the case actually say, as steve sadow suggests, that judges can continue to consider sentencing factors not passed on by the jury?

Posted by: My little pro bono case is now huge | Jan 12, 2005 12:31:16 PM

DCCB:

I think you hit the nail on the head in your first post. She knows that "it will induce Congress to create bunches of mandatory minima." Maybe she thinks this is the poison pill to head that off.

If we had ended up with juries deciding terrible mandatory guidelines facts, wouldn't that have resulted in the same injustice with just one more procedural hoop that would usually be overcome in most cases (prove it to a jury BRD, not just a judge by a preponderance)? In addition, I wonder if the ultimate outcome of all that after congress "fixed" things wouldn't have been worse than the ultimate outcome now if congress (hopefully) leaves it alone.

I hope I'm not being to naive about this but I'm hoping there was an assessment of how best to let the Court continue to dictate things, rather than goad congress to come in and change things with a sledgehammer.

I've got to admit I'm nervous, but I'm keeping my fingers crossed that I'm right.

Posted by: Alex E. | Jan 12, 2005 12:39:40 PM

I know a mail fraud case where the defendent and the federal govt agreed in a plea bargain to put forth the sentence increasing and decreasing facts before a judge.The facts in the plea bargain give the defendant a sentence of 18 months by applying the guidelines.This is a case that has been going on for 5 years. The federal judge has stated several times that there has been "serious deprivation of defendant rights in this case".

My questions:
1.
Will the new decision limit the defendant's exposure to a max of 18-24 months based on the conduct that the defendant agreed to in the plea?

2.
or is the 18-24 mths itself not valid as they were based on the guidelines?

3.
The defendent is not asking for a new sentencing jury. Can the govt ask and get a sentencing jury and if so will that deprive the defendent the right to not having double jeopardy (the govt could rework their faults from the first sentencing before the judge)

4.
Can the defendent put forth new motions before based on what the judge said in open court that there has been "serious deprivation of defendant rights in this case".

5.
If the govt is willing to agree to say a 12-18 mth sentence, is it better to take that?

6.
Or is it better to ask the defendent to take his chance that the judge will give him something lower based on the judge's feelings expressed in open court.

Stewart
Law student

Posted by: Christopher Stewart | Jan 12, 2005 12:40:41 PM

What is the standard of review for the Court of Appeals on review?

For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for "abuse of discretion"). Pierce v. Underwood, 487 U.S. 552, 558 (1988).

Breyer does not say which standard applies. I would assume that we are back to abuse of discretion. (Then again, a year ago I would have assumed that Apprendi did not apply to the Guidelines.)

If we are back to an abuse of discretion on review of sentences within the statutory range, then we have returned to pre-Guidelines sentencing practice. The only difference may be that the Guidelines force the gathering of more facts, such as the economic impact of an antitrust conspiracy—something which did not happen much in the past.

Posted by: Gary Crim, defense attorney | Jan 12, 2005 12:48:27 PM

Now that the justices decided that judges cannot make findings beyond those of the jury, did anyone comment on whether relief is available to persons on habeas review...i.e. are Blakely and Did the opinion address whether or not Blakely/Booker are retroactively available to cases on collateral review (2255 proceedings).

Posted by: RM | Jan 12, 2005 1:00:00 PM

Christopher:

You haven't indicated where your case is procedurally. For what it's worth, here are my opinions (assuming sentencing hasn't occurred yet):

1.
Will the new decision limit the defendant's exposure to a max of 18-24 months based on the conduct that the defendant agreed to in the plea?

- No.

2.
or is the 18-24 mths itself not valid as they were based on the guidelines?

- They're valid as advisory and sort of presumptively correct if the sentence is "reasonable" (whatever that means).

3.
The defendent is not asking for a new sentencing jury. Can the govt ask and get a sentencing jury and if so will that deprive the defendent the right to not having double jeopardy (the govt could rework their faults from the first sentencing before the judge).

- I don't think there's anything called a "sentencing jury" now after Booker and Fanfan except for statutory (not guidelines) elements like drug weight in the actual statute.

4.
Can the defendent put forth new motions before based on what the judge said in open court that there has been "serious deprivation of defendant rights in this case".

- Assuming sentencing hasn't occurred, these comments or more refined ones may help protect a "low" sentence on appeal. If it has and the case is on appeal, a motion to remand now would probably be appropriate using this language. If not, then use that in the plenary briefs to try to get a reversal.

5.
If the govt is willing to agree to say a 12-18 mth sentence, is it better to take that?

- As in anything, a compromise that you can live with is usually better than rolling the dice to get something with which you can't. This really depends on an assessment of the judge in your case.

6.
Or is it better to ask the defendent to take his chance that the judge will give him something lower based on the judge's feelings expressed in open court.

- It's a good sign but, again, those who know your judge are in a much better position to give you advice on this.

Posted by: Alex E. | Jan 12, 2005 1:07:20 PM

Judge Breyer's holding says, on one hand, the sentencing judge must consider one fact - i.e. what would the guidelines sentencing range be. On the other hand, it merely permits (Judge Breyer's word) the judge to consider all the other facts listed in 3553(a). What authority does the Court have to dictate that most of the factors listed in 3553(2) are less important than the guideline range, particularly because the guideline range in many cases will be based on facts that a jury didn't consider? Here's what Breyer said:

"It [the Court's remedy] requires a sentencing court to consider Guidelines ranges, see 18 U. S. C. A. §3553(a)(4) (Supp. 2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see §3553(a) (Supp. 2004)."

Posted by: Mark M. | Jan 12, 2005 1:38:58 PM

here's my opinion on it all from having worked with these guidelines since their inception. I have not read all 124 pages yet, but from what I've read so far, basically it has to do with Relevant Conduct. e.g., a person pleads to one count of an indictment. The guidelines calculate the offense of "relevant conduct" which takes into consideration all other behavior, whether you pled to it or not. With this decision, if you don't plead to it, it can't be considered. Although sentencing hearings are not new, there will have to be a remedy if there is disagreement and I'm not sure what that is. There will not be an increase in juries per se. the system would stone cold stop if we had to have a jury hearing on all sentencings. Thus the plea agreements will be more specicific. Judges will, on the whole, remain with the guidelines to maintain consistency in sentencing.
The drawback is that again it places more power with the U.S. Attorney's Office than the judges to what exactly the defendant pleads.

Posted by: Sharon V. | Jan 12, 2005 1:48:31 PM

I think the other irony to the decision is that the Justice Stevens' opinion is driven by the mandatory nature of the Guidelines and then Justice Breyer's opinion avoids all of the constitutional problems created by the mandatory regime by striking the provision that makes them mandatory.

My analysis would be that in cases in which the Defendant has pled or has been found guilty but is still awaiting sentence, Justice Breyer's opinion would control, and the sentencing court only has to consult the Guidelines. I would expect, however, that we might see some new motions to withdraw guilty pleas on pending cases so defendants can reassess their options in light of Booker. Booker removes the penalty for going to trial (or withdrawal of the benefit of entering a timely guilty plea) so why not go to trial? So I would expect to see more trials and fewer guilty pleas overall, but an increase in Rule 11(c)(1)(C) pleas, which stipulates the appropriate sentence and is binding on the court once the court accepts the plea agreement. Of course, there will be a massive deluge of § 2255 petitions for review of sentence. Ugh.

Posted by: Pat Smith - law clerk | Jan 12, 2005 2:03:06 PM

Booker stands still (his sentence will probably remain the same), but Fanfan definitely goes directly to jail, does not get to pass Go or collect $200 (his sentence will no doubt be increased).
To paraphrase and modify somewhat a very old saying:
"What Stevens giveth, Breyer taketh away; while Ginsburg swings to and fro."

Posted by: Thomas Yerbich | Jan 12, 2005 2:03:47 PM

Let's not be so tough on Ginsburg. I think we can view her as the only one of the nine justices who is displaying a consistent preference for individualized sentencing. Booker presents a variation on an issue that has plagued the Court's death penalty jurisprudence for a quarter-century: outcome-consistency in sentencing versus case-by-case weighting of all the circumstances. Furman and its progeny demand a process that will achieve outcome-consistency. Lockett, Payne, and other cases demand an open-ended, case-by-case weighing of all the facts. Rehnquist, Blackmun, and others have criticized the Court for its inconsistencies in this area. Now look at Booker through this lens. There were three possible outcomes in the case: (1) maintaining the current system of constrained real-offense sentencing (constrained because the Commission dictates in advance what facts count and how they are to be weighed); (2) moving to a system of charge-offense sentencing (the likely practical effect of the Stevens remedy in most cases); or (3) moving to a system of relatively unconstrained real-offense sentencing. The Breyer four would favor the first outcome, while the Stevens four would favor the second. Only Ginsburg seems to view the third option as the first-best choice. This option seems to me, though, the one that, in practice, moves the furthest towards an individualized, open-textured sentencing process. This is not necesasrily the best option from the standpoint of outcome-consistency, but the Court (at least in its death penalty jurisprudence) has long displayed mixed feelings about that particular objective.

Posted by: Michael O'Hear | Jan 12, 2005 2:17:01 PM

Except, Michael, of course that Option #3 is the option FARTHEST FROM the protections supposedly guaranteed by the 6th Amendment -- i.e. there will be MORE arbitrary judicial power; not less. It's this so-called "modified real offense" sentencing that's really at the heart of the Guidelines mess---not it's mandatory nature (because it's the attempt to find the "real offense" that causes judges to find facts increasing a sentence without the help of a jury). If the Court wanted to come to this conclusion, then it should have done so under the previously articulated constitutional issues (such as Due Process) rather than the 6th Amendment question.

Posted by: District Clerk Battling Blakely | Jan 12, 2005 2:38:24 PM

DCCB:

If we still had the "old" and historical system of indeterminate sentencing with factors such as history of recidivism, relative culpability, personal characteristics, for example, would you still say leaving this type of fact-finding and application to judges created a sixth amendment problem? I wouldn't think so, especially when (or maybe despite) the fact that there was such a deferential standard of appellate review. Isn't the potential sixth amendment problem here that the new "unreasonableness" standard, if too strictly applied on appeal, will create a chilling effect for "departures" and become the functional equivalent of a mandatory guideline?

With respect to your point that this would have better been grounded in due process, I don't disagree but better late (even under a less than elegant analysis) than never.

Posted by: Alex E. | Jan 12, 2005 2:48:44 PM

I agree with Alex. In Blakely itself, the justices made it pretty clear that they had no problem with a judge exercising (largely) unfettered discretion when sentencing a defendant within a particular range. Or, to be more precise, no Sixth Amendment problem.

I know the people I've been kicking these issues around with since Blakely was decided have been struck by how the Court's decision may undermine the very principle it trumpets. Of course, this is exactly what DCCB's complains about when noting "that Option #3 is the option FARTHEST FROM the protections supposedly guaranteed by the 6th Amendment." So it shouldn't be too surprising that a majority of the Court accepted this alternative.

Frankly, the most disappointing aspect of Booker to me is that at first blush it appears to have little to contribute to the debate over the constitutionality of the various state sentencing schemes. My opinion could change after rereading the opinion. But it appears that Stevens did not do much to help those of us more worried about our state's systems than the federal system.

Posted by: Brad | Jan 12, 2005 3:34:14 PM

Well, Brad, re: the state problem... this case was about the Federal Guidelines, in limbo since the great dicta in Blakely and SDO's scathing dissent. State systems can be so different, that I don't know that you'll get much more guidance than a piecemeal, state by state assessment.

Alex: I know that in the past, judicial discretion has been looked upon favorably by the Court, but Scalia's ideas in Blakely seemed to revolve around the idea that the Sixth Amendment protected defendants from arbitrary use of judicial power... not legislative enactments. And, as i've pointed out, that's really what most defense-minded people center on when complaining of the Guidelines -- they allow (no, REQUIRE) the judge to "sneak in" all of this conduct (acquitted conduct, or based on hearsay, or just really hard to prove) that's not really part of the charge to jack up sentences. Look at the comments in this Blog -- you hear the "prisoner's wive's" stories about how their husbands sold drugs once to feed a habit, and how they pled guilty to that charge, but end up locked away for 10 years because the judge finds that they were involved in a conspiracy to sell 10 kilos of coke. Justice Stevens's (and the 7th Circ.'s, and many other judges') proposed solution takes care of those concerns without doing (much) harm to the mandatory and uniform nature of the guidelines. So, as I see it, the focus, at least after Apprendi-Blakely, had changed.

Posted by: DCBB | Jan 12, 2005 4:13:16 PM

One thing no one has mentioned is Breyer's comment that the PROTECT Act made the guidelines even "more mandatory" than they were before. Is this a hint that at least part of this mess is a response to the Feeney Amendment (re tracking downward departures and creating de novo review of departures)?

Interesting thoughts/analysis in this forum. I still haven't fully digested what this means, but in short we seem to be back where we started, except the guidelines no longer are binding. I'm concerned about how appellate courts are going to review sentencing decisions. For instance, what if the appellate court finds a district court incorrectly applied the guidelines. If they're not mandatory in the first place, does the review then turn to whether the sentence was "reasonable" anyway? Is Koon good law in the sense that departures still should be rare in terms of whether a sentence is "reasonable"?

I see a lot of confusion ahead.

Posted by: Joe (prosecutor) | Jan 12, 2005 6:05:03 PM

OK, I've got a snarky comment: Did Booker or Fanfan give Justice Ginsburg some of their crack, because I really want to know what she was smoking. . . . Seriously, what the h--- was she thinking? And not to write separately to at least give us some clue is unforgiveable. By the way, who elected Breyer and Co. to Congress? I've never seen a Court exercise such raw legislative power --- I honestly don't see how what they did could be considered judicial. And trust me, I usually am not sympathetic at all to arguments about "judicial activism" and "legislation from the bench" but this decision is something else. . . .

Posted by: Cincinnatus | Jan 13, 2005 1:55:22 AM

I know. I know. The case was about the federal sentencing guidelines. But we state-focused people could hope, couldn't we? ;)

Posted by: Brad | Jan 13, 2005 10:03:16 AM

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