January 13, 2005
What of substantial assistance?
Professor Frank Bowman and this morning's great Wall Street Journal article (available here with subscription) get extra points for flagging the way a change to advisory guidelines could impact the operation of 5K1.1 and the authority prosecutors used to have to be the sole determinator of whether defendants could receive a mitigated sentence based on cooperating in the investigation and prosecution of others:
[Professor Bowman] pointed out that in many cases, prosecutors persuade defendants to plead guilty and cooperate by promising to reward them for "substantial assistance." Under the guidelines, defendants who receive such recognition are exempt from the guidelines' strict provisions. Now that the guidelines are only advisory, defendants may see less need to cooperate. "The Department of Justice has just lost all of its bargaining leverage" with defendants, asserts Prof. Bowman.
I would be especially eager to see comments from prosecutors and defense attorneys about how Booker changes the dynamics around cooperation.
More (too much?) media reading
Last night I did a quick media round-up of major Booker coverage here, but proving again that he is the blog king, Howard Bashman has collected here links to a straggering number of articles about the ruling. Bonus point to readers who highlight articles or quotes of particular note.
I find particularly interesting the "on-the-ground" local stories such as those today from the Boston Globe, the Detroit Free Press, and the Pittsburgh Post-Gazzette. Also, this article from The Oregonian reports on a sentencing in which a federal district judge recognized the guidelines were advisory but imposed the guidelines sentence anyway.
Also very interesting is this San Francisco Chronicle article with interesting and conflicting assessments of what Booker means for California's state sentencing system.
The revenge of Breyer?
The more I think about the Booker outcome, they more amazed I am that Justice Breyer found a way to win the federal sentencing battle despite having lost the Apprendi/Blakely war. As one reporter put it to me, we might call the outcome "The revenge of Breyer." To echo again my new favorite song from The Who, the fitting Won't Get Fooled Again, in a lot of cases for a lot of defendants the new federal guidelines boss (created by US Supreme Court Justice Breyer) may look a lot like the old guidelines boss (first created by then-US Sentencing Commissioner Judge Breyer). For more explanation of this point, see my post The FSG are dead, long live the FSG!!
That said, in some courtrooms and certain cases, a new advisory sentencing world may look a lot different than the old world. Only time, and lots of litigation, will reveal the real impact of Justice Breyer's remedial handiwork, which ultimately sets up a remarkable experiment in advisory guideline sentencing and creates the possibility of developing a (long-desired) purpose-driven "common law of sentencing." (Of course, we also have to wonder how long Congress might let such an experiment operate.)
Personally ironic for me is that I think Justices Stevens, Scalia and Thomas have a much stronger legal argument on the remedy in Booker, and yet Justice Breyer's opinion for the remedial majority creates by judicial fiat a system of sentencing that looks a lot more like the idealized guideline system that, I believe, early advocates of guideline reform sought. For more on these point, see generally my early articles about the old mandatory system in A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STANFORD LAW & POLICY REVIEW 93 (1999) and Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 77 NOTRE DAME LAW REVIEW 21 (2000).)
As a last few thoughts for this post, I think it is appropriate and important to still view the federal sentencing story as the minor (headline-grabbing) battle in the broader jurisprudential war taking place on the Supreme Court. By my read, Booker does not significant change the basic Blakely equation for the states (which is still where over 90% criminal cases are handled), although it does confirm that states cannot evade Blakely through "administrative guidelines" while they apparently can evade Blakely through "advisory guidelines" enforced by judicial review. Thus, it seems likely states with guideline systems will continue to move toward Blakely-izing their systems to in fact give more effect and substance to the jury trial right.
In addition, it is also important to note that the broader jurisprudential war being waged within the Supreme Court will continue in the terms ahead. Booker did nothing to clarify many of the critical questions that Blakely left in its wake, question such as the scope and application of the prior conviction exception (background here) or the nature of Blakely admissions (background here). As I detailed in this post last month, states need more guidance on Blakely ASAP, and the only obvious message that comes from Booker for states is that the Supreme Court remains deeply divided on these issues.
Quick retroactivity thoughts
Many are asking, for understandable reasons, about the prospect of Booker's retroactive application. The simple answer is that Booker does not speak to the question, and thus some future case (soon?) will have to make a definitive ruling on this issue. However, as a number of commentators have already noted, the dueling opinions for the Court seem to provide conflicting tea leaves to read.
Justice Stevens' opinion for the Court suggests the Court is just "reaffirm[ing] our holding in Apprendi" which might suggest application back to 2000, while Justice Breyer's opinion for the Court speaks of Booker as if it is a "new rule" only applicable to pending cases. Of course, even if Booker is a new rule, arguments can (and surely will) be made that this new rule fits into one of Teague's exceptions so as to be retroactive. But, as others like TalkLeft here have suggested, offenders whose convictions and sentences are final should not find much that is encouraging in Booker. And, especially since the lower courts have already been consistently resisting claims that Apprendi and/or Blakely are retroactive, I forecast a lot of litigation from, and little relief for, prisoners with final convictions.
But, as I have suggested here and here, retroactivity should not be a concern only of the courts. All branches of government pledge commitment to the US Constitution, and thus all branches of government should be concerned if a large number of defendants have been unconstitutionally sentenced. Indeed, I think executive and legislative officials, as well as the US Sentencing Commission, have a constitutional responsibility to at least consider possible remedies for already-sentenced defendants who, because of judicial retroactivity doctrines, may not get relief in the courts. But this is true ivory tower wishful thinking: I would be truly shocked if anyone talks at all about providing relief for old cases (beyond what courts might order), even though in a perfect world this would be a serious topic for conversation.
Additional Booker thoughts from the blogsphere
I collected a lot of the early blogsphere commentary on Booker in this post, but now there are additional great insights coming from:
- Blakely blog here (so nice to have him back)
- White Collar Crime Prof blog here
- Law Dork here
- Crim Law here
- Sheridan: Con Law here
Though Howard Bashman at How Appealing is always the best source for all the media links, I can provide a quick round up of some of the major pieces I have seen (mostly thanks to Howard) before calling it a night.
Here are articles from AP and Reuters and Knight Ridder, two stories from the New York Times (here and here), two stories from the Washington Post (here and here), and stories from USA Today, the Christian Science Monitor, the Los Angeles Times, and law.com.
Also, to move from print to other media, Howard has links to NPR's coverage throughout the day here and here. And here is a link to the transcript of the segment I did on the NewsHour with Jim Lehrer.
Especially intriguing in many of these pieces are the quotes from key players in Congress and the Justice Department, as well as some of the reflections of academics and practitioners. Perhaps readers can use the comments to quote their favorite bits of punditry.
January 12, 2005
A brief Booker break (sort of)
I will have a lot more Booker commentary tomorrow, but a few other notable sentencing items caught my eye tonight.
First, this New York Law Journal article provides a thoughtful account of "the latest in a series of cases where judges struggle with the legal, pragmatic and appropriate Internet restraints that may be imposed as a condition of probation or parole." The piece had me wondering again about California's new law, discussed here, making it a crime for registered sex offenders to enter the state's Megan's Law database.
Second, Marty Lederman at SCOTUSblog here notes that Roper v. Simmons, concerning the constitutionality of the juvenile death penalty, is now the only opinion outstanding from the October session. He also notes that Justice Kennedy almost certainly was assigned to write the majority opinion.
And speaking of Justice Kennedy, I found it very interesting and notable that he did not speak at all in Booker. Justice Kennedy has always seemed keenly interested in sentencing issues, as reflected in his potent speech to the ABA in 2003 assailing federal sentencing policies and in the various interesting opinions he has authored in sentencing cases. Of course, especially since, practically speaking, Justice Breyer's Booker opinion echos aspects of Justice Kennedy's ruling for the Court in Koon (which championed judicial discretion through departures under SRA), it certainly seems possible that Justice Kennedy may have played a behind-the-scenes role in the ultimate Booker outcome.
The power of parsimony (and Justice Breyer's notable omission)
I am heading home soon to crank up the The Who's fitting Won't Get Fooled Again to better understand the Booker decision (explanation here), but one more point for now about an important feature of our new advisory world order.
As I understand matters, federal judges imposing sentences after Booker remain fully bound by the dictates of 18 USC § 3553(a). See Breyer for the Court at 16-17; id. at 19 ("Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing.") That provision, as Justice Breyer explains at page 17, requires consideration of guidelines ranges, of the need to avoid disparities, and of the traditional purposes of punishment. But, the very first sentence of 3553(a) has a critical initial instruction to judges, what has been called the "parsimony provision," which states: "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment] set forth in paragraph (2) of this subsection." Notably, and somewhat disconcertingly, Justice Breyer's opinion makes no mention of this mandate.
Federal district courts at sentencing (and circuit courts assessing reasonableness) will have to, in my view, give considerable attention to this very important, though historically ignored, mandate that federal sentencing judges impose the lowest possible sentence to achieve the purposes of punishment. For that matter, probation officers doing presentence reports, and prosecutors and defense attorneys making sentencing recommendations, will also have to figure out what this parsimony provision means for specific cases.
But what does it really mean? Consider Freddie Booker and Ducan Fanfan. Both were involved in non-violent drug offenses. What sentence will qualify as "sufficient, but not greater than necessary, to comply with the purposes [of punishment]"? Or let's think about some fraud cases. Was Martha Stewart's 10 month sentence "sufficient, but not greater than necessary, to comply with the purposes [of punishment]"? I can say with a some confidence, based on what I have read, that Jamie Olis will have a pretty good claim that his severe 24-year sentence is greater than necessary to comply with the purposes of punishment.
When the Justice Department was arguing for advisory guidelines in September to avoid "sentencing windfalls," I wondered here and here whether in fact sentences would end up lower in an advisory system (at least for some defendants). I suppose we will soon find out, and I will be especially curious to see how courts consider the parsimony mandate.
I also will be closely watching if courts start to consider a range of mitigating offender circumstances — e.g., family circumstances, drug dependency, lack of guidance as a youth — that mandatory guidelines had largely taken off the table. In our new advisory system, defendants have every reason (and I might even say a due process right) to raise these issues, and judges arguably now have an obligation to explain on the record whether the purposes of punishment will be served or disserved by their consideration. Fun times ahead.
The FSG are dead, long live the FSG!!
I am trying to come up with a simple take on Booker, and here it is: five Justices (the Apprendi/Blakely five) say the federal sentencing guidelines can no longer operate as mandatory sentencing rules (which is clearly how they were designed and intended to operate), but five Justices (the Apprendi/Blakely dissenters + Justice Ginsburg) have crafted the only possible remedy that would operate in a manner as close to the old system as possible.
Particularly significant, in my view, is Justice Breyer's repeated statement that, even as an advisory system, the Act still "requires judges to consider the Guidelines," Breyer for Court at 16-17, and that "district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." Id. at 21-22. Thus, it appears that the FSG must continue to operate as a (shadow?) sentencing system, with presentence reports prepared (and fully litigated?) as in the past, and perhaps even with sentencing judges having to make on the record findings of what the FSG would provide.
(Indeed, as I read Justice Breyer's opinion for the Court, I think there is an argument that a district judge who fails to make (shadow?) rulings about the applicable guideline range could perhaps be subject to per se reversal. I also suppose that defendants and prosecutors might still be able to, and actually need to, appeal the (shadow?) guideline rulings because the reasonableness of the impose sentence on appeal would depend on the proper applicable guideline range.)
Also noteworthy, Justice Breyer describes a largely unchanged role for the Sentencing Commission in our new advisory world, since it "remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly." Id. at 21. But what if appellate courts start finding various of the USSC guidelines unreasonable? What good would new guidelines do? (Indeed, I wonder if (when?) some circuit panels will have ocassion to address the reasonableness of existing provisions prohibiting or greatly restricting the consideration of various potential mitigating offender characteristics like medical conditions and family circumstances.)
To put all this analysis in a much hipper way, I actually think that swing voter Justice Ginsburg must have been listening to The Who in chambers a lot. It is almost scary how fittingly the lyrics to Won't Get Fooled Again capture the Booker decision:
I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again
The change, it had to come
We knew it all along
We were liberated from the fold, that's all
And the world looks just the same
And history ain't changed
'Cause the banners, they are flown in the next war...
Meet the new boss
Same as the old boss
Back to my best medium
It sure was exciting to be on the NewsHour with Jim Lehrer, although perhaps all I clearly established was that I have a face made for blogging. ;-) I am proud that, at the end of the segment, I was able to get in a plug for the US Sentencing Commission. Indeed, as I said here after Blakely, sentencing commissions have a critical role in bringing order to the disorderly world that SCOTUS has created, and that could not be more true in the wake of Booker.
In any event, with most of the media folk now past deadlines, I have a little more time to process the decisions and to share a number of reactions. I have so much to say about all the opinions, and so many questions, I am not sure where to start. But I hope, in a series of posts over the next few hours, to highlight some big picture ideas and concerns as we all try to size up the future of federal sentencing. Stay tuned.
Commentary and more commentary
I have barely had a chance to review the Booker and Fanfan opinions, and it will likely take until the wee hours tonight before I can post any really thoughtful and reflective comments. But others in the blogshpere are already chiming in effectively:
- White Collar Crime Prof blog here
- Orin Kerr at Volokh Conspiracy here and later here
- TalkLeft here and here and here
- SCOTUS blog here
- Law Dork here
- Is That Legal here
- The Cincinnati Groug here
Consider also the amazing and compious commentary by so many thoughtful readers already to my prior posts on the decision:
- Questions and omissions
- The remedy mess
- Rule by judges?
- SCOTUS speaks: Booker and Fanfan have arrived!!
In addition, I have been trying, without much success, to explain the decision and its impact to various media folk. I will being try again, with a little more time, on PBS tonight as part of the NewsHour with Jim Lehrer.
Questions and omissions
Looking back: What happens now to all the superceding indictments that were filed all summer long in thousands of cases? What happens in all the cases sentenced under the (formerly mandatory) guidelines without Blakely factors that now have to be processed through the new world order (e.g., Martha Stewart)?
Looking forward: Based on a very quick search, it appears that the opinions for the Court in Booker and Fanfan do not even mention Harris or Almendarez-Torres. Thus, it seems we today know nothing more about the long-term viability and application of these critical exceptions to Apprendi than we knew yesterday. I am not sure I know how Congress and the US Sentencing Commission can build a new system on the uncertain foundation Booker and Fanfan has left, but I surmise they are going to have to try.
The remedy mess
Rightfully, I am already being asked by many "Now what?" Of course, the answer to that question has many institutional permutations: Now what for Congress, now what for the Sentencing Commission, now what for state actors of all sorts. But I am especially scratching my head on the "now what" question for all the federal cases "in the pipeline." Here's the cryptic final paragraph from Justice Breyer on these issues:
As these dispositions indicate, we must apply today's holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review.... That fact does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the "plain error" test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.
I must admit that I am not completely sure what this means for on-going cases, except that we are likely to have lots and lots of litigation over what this means for on-going cases. In addition, it seems that, as suggested in my prior Rule by Judges post, the instruction that "reviewing courts [are] to apply ordinary prudential doctrines" will ensure that appellate courts have enormous sentencing powers in the days ahead.
I am especially eager to hear from litigants and lower courts personnel if they are any concrete idea what this means -- or, more generally, on how advisory guideline sentencing is really going to work.
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.
SCOTUS speaks: Booker and Fanfan have arrived!!
Not a moment too soon, we finally have an opinion in Booker and Fanfan!! All I know is that it is long and messy, but it appears Blakely applies to the federal guidelines, with Justices Stevens and Breyer both writing parts of the Court's opinion. More soon!
UPDATE: Lyle Denniston at SCOTUSblog has key language from the opinions here, and I hope to have links to the full opinions within the hour.
Here are the links: As promised, here is the link to Justice Stevens' partial opinion for the Court, here is the link to Justice Breyer's partial opinion for the Court, here is the link to a partial dissent by Justice Scalia, here is the link to Justice Thomas' partial dissent, here is the link to Justice Breyers' partial dissent, and here is the link to Justice Stevens' partial dissent. And here is a link to the whole messy ball of wax, including the 6 page syllabus.
I will need some time to digest all 6 opinions (6 opinions!!), which run 118 total pages (118 pages!!). But I should have lots and lots of commentary to follow throughout the day. In the meantime, I hope readers will use the comments to share their views on whether the opinion was worth the wait.
The essence of the holdings: From Stevens' opinion:
We hold that both courts correctly concluded that the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines. In a separate opinion authored by JUSTICE BREYER, the Court concludes that in light of this holding, two provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.
January 12, 2005 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 (41) | TrackBack
By my count, today marks the seventh time this term the Supreme Court has plans to release opinions in argued cases. Will seven be the lucky number for Booker and Fanfan? Of course, yesterday I made this bold prediction that we will see Roper and not Booker and Fanfan today. Given my prediction track-record, this means anything else is likely to happen.
In any event, you may be now know the pre-Booker drill. Let me list here some of the recent pre-Booker "gearing up" posts:
- Predicting the unpredictable
- Is it finally the big week?
- Here we go again
- Booker and Fanfan pre-reading guide
Also, additional posts of note and background materials on Blakely and Booker and Fanfan are at my Blakely Basics page, and still more information can be accessed through the Booker/Fanfan and Blakely page links in the right side-bar.
January 12, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
A Blakely sentencing trial and other news
This article from the Seattle Times describes a special sentencing trial in a federal fraud case. Here is the article's account of the practice and result:
Yesterday, after about seven hours' deliberation, jurors answered 17 specific questions as part of the sentencing procedure that relies on a scoring system. They responded to questions on subjects such as the defendants' respective roles, the amount of loss and the vulnerability of victims. They didn't answer every question to the complete satisfaction of prosecutors, but the government came out on top.
In other intriguing morning sentencing news, this article from Maryland discusses an anti-abortion group's plans to protest the early prison release of a pregnant woman, and this article from Maine discusses the creation of a "mental health court" in order "to give judges new alternatives to jail for defendants suffering from mental illness."
Noteworthy pleas to stop executions
The scheduled executions of doubler murderer Donald Beardslee in California next week and of serial killer Michael Ross in Connecticut the following week continue to produce amazing developments and stories.
From California, this article details that a "former San Quentin State Prison warden and a juror who voted for Donald Beardslee's execution are urging Gov. Arnold Schwarzenegger to commute his sentence to life without parole."
From Connecticut, this article reports that the Connecticut Conference of the United Church of Christ filed a lawsuit Tuesday against the state's Board of Pardons and Parole in an effort to force the Board to hold a hearing to consider commuting Ross' death sentence to life in prison.
For more recent posts on capital clemency developments and issues, see
- Indiana capital commutation and other capital news
- The capital story of clemency
- Sister Prejean's powerful perspective
Blakely in the states keeps chugging along
Even though the Supreme Court keeps keeping us waiting for Booker and Fanfan, the state courts continue to churn out Blakely decisions.
Amazingly, only roughly a week into the new year, California already has 30 on-line decisions noting or discussing Blakely. I continue to wonder when the California Supreme Court will hear argument in the two Blakely cases on which it granted review nearly six months ago. I have to surmise that Court is, like the rest of us, waiting for Booker and Fanfan.
And other intermediate state appellate courts are keeping busy this week, too. From Washington, yesterday brought State v. Ermels, 2005 WL 39762, (Wash. App. Div. 1, Jan. 10, 2005), in which the court affirmed a sentence over a Blakely objection based on the defendant's waive of his rights to appeal in his plea agreement. And today brought State v. Windrow, 2005 Wash. App. LEXIS 55 (Wash. App. Div. 2, Jan. 11, 2005), in which the state conceded Blakely error in the imposition of an exceptional sentence.
In addition, today Minnesota released three notable Blakely decisions: State v. Minick, 2005 WL 43769 (Minn. App. Jan. 11, 2005) (reversing upward departure sentence based on Blakely); Vogt v. State, 2005 WL 43952 (Minn. App. Jan. 11, 2005) (holding that Blakely has no retroactive application); State v. Hajrusi, 2005 WL 44020 (Minn. App. Jan. 11, 2005) (same).
January 11, 2005
A bold (and silly?) prediction
As noted previously, tomorrow the Supreme Court will hand down one or more decisions, but then, after tomorrow, the following Tuesday or Wednesday (Jan. 18 or 19) seem to be the next earliest possible decision days. Just for fun, I am going to predict now that tomorrow we won't see Booker and Fanfan, but we will see a decision in Roper v. Simmons, the juvenile death penalty case that has both sentencing and international law significance (background here and here).
I make this prediction in part because, as noted by SCOTUSBlog and Law Dork, Justices Scalia and Breyer have plans later this week to have "A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication" at American University. (All the details on the event and a link for live viewing are here.) I think the Justices' conversation would be enhanced by the release of Roper before the event. (This is, of course, just silly speculation of the kind that used to get me in trouble with this (now defunct?) blog.)
That all said, applying Murphy's Law, I should probably predict we will get Booker and Fanfan tomorrow because a decision tomorrow could put a big wrinkle in the workshop I am scheduled to do later this week at the UNC School of Law.
January 11, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack