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September 14, 2006

Joint advice for SCOTUS on Cunningham

Stephanos Bibas and I have just completed an article addressing the Supreme Court's sentencing jurisprudence, which will be published this fall in the Ohio State Journal of Criminal Law.  The article, the draft of which can be downloaded below, is entitled "Making Sentencing Sensible."  Here is the abstract:

This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law.  Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice.  The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs.  A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury.  Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge to exercise reasoned judgment.  Juries should find offense facts, but judges may find offender facts and also exercise judgment at sentencing.  Within these bounds, the Court should preserve states' flexibility to experiment with different roles for juries, judges, legislatures, sentencing commissions, probation and parole officers, and trial and appellate courts.  In particular, while certain types of mandatory guidelines are unconstitutional, voluntary or even presumptive guidelines should be permissible so long as appellate courts meaningfully review sentencing judges' reasons for imposing sentences within and outside ranges. This modest approach, which preserves room for experimentation, fits best with legal-process values and is least likely to provoke evasion.

Download bermanbibas_osjcl.rtf

September 14, 2006 at 01:23 PM | Permalink

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Comments

Dear Professor Berman:

My compliments to you and Professor Bibas for writing "Making Sentencing Sensible." The article begins to bring coherence (and perhaps even consensus) to the otherwise incoherent sentencing jurisprudence of the Supreme Court. I hope a lot of people read the article, and I trust your blog entry will help in that regard.

Sincerely,

Richard G. Kopf
United States District Judge

Posted by: | Sep 14, 2006 3:01:03 PM

OK, I'm no federal judge. And I haven't read the article (so really I couldn't be more uninformed, but whatever). But judging by this quote: "In particular, while certain types of mandatory guidelines are unconstitutional, voluntary or even presumptive guidelines should be permissible so long as appellate courts meaningfully review sentencing judges' reasons for imposing sentences within and outside ranges[,]" I assume that you argue that Blakely was wrongly decided, because the Washington state guidelines were presumptive not mandatory (as in, the judge was never compelled to depart) and the Washington appellate courts exercised review over such sentencing decisions.

Am I right?

Posted by: Bob | Sep 14, 2006 3:51:59 PM

You make a distinction between offense conduct and offender characteristics. I believe this begins to get at the problem, which underlies much of the confusion in sentencing jurisprudence. But it does not get to the heart of the matter. People reason about things in two different ways. Steven Sloman and other cognitive scientists have written about this at some length. As a start, I would recommend Sloman’s paper entitled The Empirical Case for Two Systems of Reasoning, which can be accessed through Google

A crime is the concept of a rule-based category of elements; an offense is the concept of an association-based category of elements and other attributes. These two ways of thinking about the same thing have very different characteristics (see Sloman) and lead to different results. I believe that is what happened in Booker. For example, when we think of a robbery as a crime, all robberies are the same; they have fixed boundaries. But when we think of robbery as a criminal offense, robberies differ from each other in some respects; they have fuzzy boundaries. Of course, having the capacity to think of the same thing in more than one way is a great advantage, although this propensity often leads to conflicting results, which have to be accommodated (a different subject).

Of course a person who has committed a criminal offense is a criminal offender, which is also an association-based concept. A sentencing system should respond to all three: crime, criminal offense, and criminal offender.

In the Constitution, crime means crime, and offense means offense. What the Founders said is what they meant. Clearly these are not interchangeable concepts.

Posted by: Tom McGee | Sep 14, 2006 7:18:25 PM

It sounds to me like Professor Berman is not saying that Blakely was wrongly decided, but that cases like State v. Natale (NJ 2005) was wrongly decided.

Posted by: Steve | Sep 14, 2006 8:37:44 PM

Thanks, Judge, and everyone else for the kind and helpful comments. Though not speaking for my co-author, I do not think we are trying to build an argument against Blakely, but rather trying to develop Blakely principles into a sensible and flexible set of constitutional sentencing norms and regulations.

Posted by: Doug B. | Sep 14, 2006 9:30:20 PM

Yes, but the practical effect of those flexible norms and regulations are the Blakely itself is wrong. No judge in Washington was required to depart no matter how many aggravating factors he or she found. And those facts were, in the vast majority of cases, based more upon the judge's experience in seeing many cases and knowing which ones were really bad and which ones weren't.

In other words, if you believe that the Sixth Amendment doesn't require jury findings of aggravating factors in a non-mandatory sentencing scheme where departures are, in the end, based upon the the trial judge's decision that the crime before him or her is much worse than the typical version of that crime, a decision based upon experience, with meaningful appellate review of that decision - well, that was Washington state's pre-Blakely sentencing system. So Blakely must be wrong.

Posted by: Bob | Sep 15, 2006 11:31:00 AM

I think Bob greatly overstates what Doug and his co-author are trying to accomplish. It is one thing to believe that Blakely is right to the extent it says that any offnse-related fact must be found by a jury B.A.R.D if it either compels or merely allows the judge to impose a sentence above the "statutory maximum."

It is another thing, however, to believe that Blakely applies to offender-related facts, or to sentencing schemes, like New Jersey's and California's, which appear to establish a minimum and maximum sentence for the degree or type of crime, and then require the judge to impose a "presumptive" sentence within that range, all else being equal. If the presumptive term is a sentence of last resort, arrived at because judicial factfinding about the offense and offender convicnced the judge that neither a higher or lower sentence within the statutory range was required, then one could argue that Blakely ought not to apply where judicial factfinding leads to a sentence above the presumptive, but still within the statutory maximum, so long as there's effective appellate review of the final sentence and reasons therefor. (That's the argument being advanced by California in Cunningham.)

I thought that this is what Doug and his co-author are hinting at when they explain that "In particular, while certain types of mandatory guidelines are unconstitutional, voluntary or even presumptive guidelines should be permissible so long as appellate courts meaningfully review sentencing judges' reasons for imposing sentences within and outside ranges."

Only Doug and his co-author can say whether they believe that Blakely invalidates California's scheme (and whether the NJ Supreme Court was correct to invalidate NJ's scheme on Blakely grounds).

Posted by: Steve | Sep 15, 2006 12:36:32 PM

Doug, I totally agree that offender characteristics should not be equated with offense characteristics when it comes to being "Apprendi facts", or facts which can increase the potential punishment above the maximum allowed by the verdict or plea alone. I also agree that Cunningham could be huge in its ramifications on whether the Court really meant what it said in Apprendi/Blakely.

However, I share the concern expressed by others about your statement that judges could make findings which result in sentences "outside the ranges" allowed by the verdict or plea. It seems to me that, by definition , any sentence which is "outside the range" allowed under the jury's verdict is unconstitutional, with the exception of sentences enhanced due to prior convictions.

I look forward to seeing you at the Cunningham argument. It should be interesting and revealing on how determined the Blakely five are in their efforts to reshape sentencing practices.

Bruce

Posted by: bruce cunningham | Sep 15, 2006 1:08:12 PM

Prof. Berman's article was an impartial read of what could be done. Yet, there was a select few that experienced the period post Blakely, Pre Booker. During those times, the uneven playing field was tilted back towards equality. Demanding a jury trial on sentencing factors was a check against abusive systemtic practices which the article makes clear: 94% of defendants don't go to trial. The only leverage an attorney has in the Federal system is a jury trial on small points. Those small points can save years off a defendant's sentence. I have many clients in California that would benefit right now from a Cunninghmam decision which would hold that a jury must make findings for any factor that increases a defendant's system. The thought of defendant simply too afraid to go to trial is a position we should all work to avoid. Judicial Discretion should be slanted to only lower sentences in exceptional cases. Otherwise, by keeping a high burden on the prosecution, one keeps the playing field open for resolution.

Posted by: Ronald Richards, Esq. | Sep 16, 2006 1:24:30 PM

Steve said that Doug's article says this: "Blakely ought not to apply where judicial factfinding leads to a sentence above the presumptive, but still within the statutory maximum, so long as there's effective appellate review of the final sentence and reasons therefor."

That was the Washington state sentencing system pre-Blakely to a t! It's was also the system in New Jersey, North Carolina, and other states. I believe that it is also the system in California.

So if Blakely doesn't apply to a system like that, like the Washington state system, then Blakely is wrong.

Posted by: Bob | Sep 17, 2006 12:35:25 AM

Bob, though you may want to over-read one passage of the article to build an argument that Blakely is wrong, it is not my intent in this article to suggest as much. Moreover, to say simply "Blakely is wrong" is to adopt a kind of binary thinking about these issues that the article seeks to fight against.

I would credit your point merely by saying that Blakely recognized a very important principle in a very crude way. Because the specific finding in Blakely that led to the increased sentence was a clear "offense factor," I think Blakely comes out right. But I also could imagine finding parts of Washington's system --- and New Jersey's, and Nother Carolina's, and Ohio's and Colorado's and others --- that allow enhancements based on clear offender facts that, in my view, should not implicate jury trial rights.

I hope that, read in context, these nuanced ideas come through in the article.

Posted by: Doug B. | Sep 17, 2006 7:20:16 AM

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