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April 18, 2007

A quick James recap and tea leaves

In order to give folks a chance to discuss SCOTUS decisions that have nothing to do with abortion, let me recap prior James coverage and look forward based on that ruling to other sentencing work ahead:

Looking ahead, I come to these few tentative conclusions based on James:

1.  None of the Justices save Justice Thomas likely has any deep interest in reversing the "prior conviction" exception to the Apprendi-Blakely rule.

2.  Neither Justice Breyer nor Justice Kennedy vote as if he is genuinely troubled by broad applications of harsh mandatory minimum sentences.  They both are good at talking the talk, but neither walk the walk.  Now, if you murdered someone and get sentenced to death by a jury, then Justices Breyer and Kennedy are on your side.

3.  In light of the harsh outcome, the long gestation, and strange voting blocks in James, I now have even less idea what to expect in Claiborne and Rita (except perhaps that Justice Breyer will continue to show an (uninformed) affinity for the guidelines and the US Sentencing Commission).

April 18, 2007 at 06:42 PM | Permalink

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Tracked on Apr 18, 2007 7:08:03 PM

Comments

Uninformed? Oh, come now. What is the basis for that charge, other than the fact he disagrees with you?

Posted by: Kent Scheidegger | Apr 18, 2007 7:04:27 PM

Didn't Breyer serve in some capacity on Sentencing Commission?

Posted by: federalist | Apr 18, 2007 8:17:36 PM

Yeah, that's the point.

Posted by: Gideon | Apr 18, 2007 8:24:36 PM

Breyer seems to keep holding on to the notion that the guidelines are the product of expert empirical analysis and thoughtful revisions, but the evidence (as shown by the USSC's own reports) reveals otherwise.

The USSC has done a lot of great research, but it has not folded that research back into the guidelines --- e.g., it has done many studies and reports documenting significant empirical flaws/problems with (1) the crack guideline, (2) the career offender guideline, (3) the operation of criminal history rules, (4) the immigration guideline, etc, etc.

Rather than recognize that the guidelines in fact do not reflect the product of empirical study and thoughtful response, Breyer in Booker (and the court now in James) talks of the guidelines as if they are administrative law perfection. But that view is uninformed about the realities of the guidelines in their more recent development and in their operation.

Posted by: Doug B. | Apr 19, 2007 12:45:26 AM

It's hard to fault SGB for giving deference to the Guidelines, Doug. You may not agree with what the USSC has done (or failed to do), but as your comment concedes the Commission has done everything procedurally right over the past few years. They consistently produce lengthy, detailed studies on sentencing realities and corresponding policy analysis; they just don't take the policy course you'd like them to.

The whole notion of deference to administrative agencies is that its staffers are policy experts, and that courts should not substitute their substantive policy judgments for those of the experts. Unless there's some reason to think that the USSC is not expert in its field--rather than just wrong on policy--should judges really be in the business of fiddling with their work?

Posted by: Section 3553(a) | Apr 19, 2007 2:23:51 AM

"the Commission has done everything procedurally right over the past few years."
Unfortunately, they have not followed up with substantive action. In their procedure, the USSC has acknowledged that many of the Guidelines are flawed and actually do not adequately reflect 3553(a). Yet, they have not taken substantive action to correct these flaws.

"courts should not substitute their substantive policy judgments for those of the experts."
The USSC has made substantive judgments, but it has not translated those judgments into substantive "policy." (i.e. USSC has made the substantive judgment that the 100:1 ratio is too harsh, but it has not changed the policy to correct it). Until the USSC actually translates their expert judgments into policy, courts should feel free to recognize the flaws in the Guidelines.

The USSC's substantive policy actions are a one-way ratchet. If the "experts" determine a Guideline is too low, they correct it. If the same "experts" determine a Guideline is too harsh, they invite comment and more comment, and more comment, with no action. (Not to mention that a DOJ representative is present on USSC policy decisions, with no corresponding representative for the defense besides the ability to file comments).

Posted by: | Apr 19, 2007 3:01:26 AM

Neither Justice Breyer nor Justice Kennedy vote as if he is genuinely troubled by broad applications of harsh mandatory minimum sentences. They both are good at talking the talk, but neither walk the walk.

Doug, you always seem to presume that Justices should vote according to their policy preferences. Yes, Justice Kennedy is on record as disagreeing with mandatory minimums as a policy matter. He's also on record that Congress has a right to enact those minimums, if it wants to. As a Justice, he votes according to what he believes the law and the Constitution require, even if it produces a policy outcome he disagrees with.

Posted by: Marc Shepherd | Apr 19, 2007 7:19:18 AM

I think the most important (and unnoticed) part of Justice Alito's opinion is the language in footnote 8 labeling as "baseless" a claimed Sixth Amendment violation by James, who admitted the fact of prior coviction (and, presumably, waived his right to a jury trial) in the course of pleading guilty. Maybe that's a hint to defense attorneys around the country to stop raising frivolous jury-trial claims in the trial court and on appeal when their clients plead guilty? If you want a trial so badly, or if you so strongly believe that a criminal statute works an Apprendi violation, then go to trial to vindicate your clients' jury trial rights.

Posted by: gnome | Apr 19, 2007 10:34:08 AM

No offense to you sentencing academics, but let's not kid ourselves into thinking that the members of the USSC (the Commission) are experts, in some relevant way, to sentencing. The judgment about "how many months of imprisonment is a given crime worth" is not a question subject to ANY expert analysis. It's a value judgment. Nothing more, nothing less. No one is an expert on values, aside from their own personal values. The people's elected representatives, however, and only those representatives, have the power to reflect the nation's collective values in our criminal law.

That's why the Sixth Amendment is so vital to federal sentencing, after the SRA of 1984. Congress may (obviously) establish the penalties for crimes, but, when it comes to fact-finding necessary to subject a defendant to a penalty defined by Congress, a jury must be involved. Otherwise, we'll have (and had, until Booker) a Kafka-esque, Orwellian system in which, once a single verdict of guilty is established, the judge's sentencing factual determinations MANDATE a minimum sentence that does not reflect the values choice of the people's representatives in Congress or the facts properly found by a jury. Judicial discretion in sentencing avoids this problem by using the sentencing judge as a check on an unthinking, bureaucratic system, rather than have him or her act as an automated cipher within it.

Booker was a good (make that, a great) first step. Mistretta could have been a great first step, but it was a huge stumble. Rita and Claiborne can finish the work started in Booker. And if Congress doesn't like truly discretionary sentencing (informed by the suggestions of the Commission), they can mandate jury factfinding for all elements necessary to impose a given minimum sentence.

I think that Prof. Berman was a little harsh with the "uninformed" comment about Justice Breyer. Nonetheless, we'll find out, when Rita and Claiborne come out, whether Justice Breyer is genuinely wise, rather than merely sly. I sincerely hope that he, or at least the Court, turns out to be wise.

Mark

Posted by: Mark | Apr 19, 2007 10:52:20 AM

It is, perhaps, unfair to describe Justice Breyer's affinity for the guidelines as uninformed. I suspect he is well aware that they are far from perfect.

I would call Justice Breyer an "eventualist." He believes that administratively-defined guidelines trend assymptotically to the correct outcome eventually, even if there are bumps along the way. He also believes that no other mechanism is as good, even if his preferred method will never reach perfection.

I don't agree with him, but I don't call someone uninformed just because their policy preferences are different than mine.

Posted by: Marc Shepherd | Apr 19, 2007 11:35:10 AM

I think "zealot" is the appropriate word.

Posted by: | Apr 19, 2007 1:03:23 PM

As Doug has pointed out earlier, James shows how important our 6th Amendment jurisprudence really is. My read on James (and Blakely et al) is that the fundamental dispute between the justices right now is still based on their differing understanding of the role of the jury and the community. Breyer, as a fan of administrative decisionmaking, naturally prefers the USSC as the arbiter of punishment. Scalia and Thomas hew to the rights of the jury. It's a formalistic distinction, but one that still works.

Posted by: Laura | Apr 19, 2007 1:34:23 PM

Gnome - Defense attorneys aren't making "frivilous" jury-trial claims for clients who plead guilty. A claim is frivilous if it has no basis in fact or law. Given the ever tettering state of the prior-conviction exception, demanding a jury trial on the grouds that the PC exception is wrong can hardly be described as frivilous.

Posted by: Anon | Apr 19, 2007 1:59:35 PM

Lara,

A defendant who pleads guilty and waives his/her right to a jury trial AND ADMITS THE SENTENCE-ENHACING FACT S/HE CLAIMS IS AN ELEMENT has no business claiming on appeal that the offense of conviction violatyes the Apprendi doctrine.

In other words, even were the Supreme Court to overrule A-T, defendants who pled guilty and admitted the sentence-enhancing element would have no right to a remedy. So, defendants who are raising Apprendi claims with respect to prior convictions despite having no chance of obtaining a remedy ARE raising claims that have no basis in law or fact. And there are plenty of defense attorneys out there urging their clients to make such claims, even though it might have advserse sentencing consequences for the client (i.e., loss of an acceptance reduction).

Do you think that it is responsible advocacy to raise an constitutional claim that, even if meritorious, can lead to no remedy for your client?

Posted by: gnome | Apr 19, 2007 2:41:08 PM

Lara,

Let me add this question, also:

Do you think a prosecutor is required to reward a defendant with points off for acceptance of responsibility where that defendant, despite pleading guilty, forces the government to litigate a constitutional claim that, even if meritorious, can have no affect on the defendant's sentence?

Posted by: gnome | Apr 19, 2007 3:08:55 PM

"Do you think that it is responsible advocacy to raise an constitutional claim that, even if meritorious, can lead to no remedy for your client?"

Yes, absolutely. As a defense lawyer I have to zealously represent my client. If that means raising claims that have little or no chance of gaining a practical result, so be it. As long as there is SOME chance - and with this issue there is - there's nothing wrong with raising it at all.

"Do you think a prosecutor is required to reward a defendant with points off for acceptance of responsibility where that defendant, despite pleading guilty, forces the government to litigate a constitutional claim that, even if meritorious, can have no affect on the defendant's sentence?"

I don't think it should be up to the prosecutor at all. One of the things that irritates me to no end about federal sentencing is the deligation of power from the judge to the prosecutor. The trial judges over the years have become so lazy and so work-averse that they let the prosecutors control the whole process, only to perk up every once in a while to try and tame the monsters they themselves created.

That said, let me frame your question differently. Do I think a judge may punish a defendant for raising a non-frivilous constitutional claim by increasing that defendant's sentence? No, I do not.

Posted by: Anon | Apr 19, 2007 3:49:56 PM

And the truth about the Guidelines finally comes out (as if it were ever really hidden): "Do you think a PROSECUTOR is required to reward a defendant with points off for acceptance of responsibility . . . ?"

This demonstrates exactly why Breyer is indeed uninformed about the Guidelines. He refuses to acknowledge that they place ALL of the sentencing power in the prosecutor's hands, while at the same time fretting about the prosecutorial power that a charge offense system entails. He needs to step outside of his theories for once and see how things under the Guidelines actually are.

Posted by: | Apr 19, 2007 3:56:44 PM

Anon,

You answered a question I did not ask. I did not say there was little or no chance of success from rasing the claim. Rather, I said that, even if the defendant is correct that the prior conviction issue must go to the jury, he can't benefit from the decision becasue he pled guilty and admitted his prior conviction.

With that understanding, do you think it is responsible to raise a Sixth Amendment violation even though your client obviated any Sixth Amendment concerns by pleading guilty?

Here's an easier example: should a person who previously underwent a vasectomy be able to challenge a forced sterilization law as cruel and unusual punishment. More to the point, should that person be able to demand attorneys fees even though he lacks standing to challenge the statute?

Posted by: gnome | Apr 19, 2007 4:10:30 PM

Anon,

To add an additional point, you may not think it should be up to the prosecutor, but Guidelines section 3E1.1(b) specifically conditions entitlement to a third-level reduction for acceptance of responsibility on the prosecutor's motion.

Posted by: gnome | Apr 19, 2007 4:12:05 PM

"Do I think a judge may punish a defendant for raising a non-frivilous constitutional claim by increasing that defendant's sentence? No, I do not"

That is 180-degrees different from a prosecutor refusing to reward a defedant with a lower sentence when the defendant, despite pleading guilty, raises a claim in the trial court and on appeal that is entirely inconsistent with a guilty plea (i.e., I should have gotten a trial).

If you think Apprendi's right to jury trial is so important, then don't plead guilty. But please don't turn down a jury trial by pleading guilty, while simultaneously arguing that you were unconstitutionally deprived of a trial, while having the temerity to complain on a appeal that the government should have rewarded you for wasting precisous taxpayer resources litigating a claim that can have no effect on your sentence

Posted by: gnome | Apr 19, 2007 4:22:34 PM

"should a person who previously underwent a vasectomy be able to challenge a forced sterilization law as cruel and unusual punishment."

Yes, of course. Going through the procedure is enough punishment to be challengable, even if the end result is where the person already is. By that logic, an indigent defendant with no plans to obtain any income could never challenge a fine as excessive.

"More to the point, should that person be able to demand attorneys fees even though he lacks standing to challenge the statute?"

If he really lacks standing he won't get attorney's fees. But he sure as hell can ask.

"To add an additional point, you may not think it should be up to the prosecutor, but Guidelines section 3E1.1(b) specifically conditions entitlement to a third-level reduction for acceptance of responsibility on the prosecutor's motion."

I understand that and I'm sure you're right that it is up to the prosecutor. What I was say was that it SHOULD not be that way, not that it isn't that way.

Given that it is the prosecutor's decision, however, I'll answer your question - do I think a prosecutor should punish a defendant by not "recommending" a sentence reduction in retaliation for the defendant asserting a non-frivilous constitutional claim? No, I do not.

A criminal defendant can never FORCE the government to litigate anything. If the claim is oh-so-frivilous, then the government should refuse to participate in the appeal. Don't file a brief, don't show up for oral argument, don't do anything. Of course, the court could order the government to respond. But that's the court's decision, not the defendant's.

Posted by: Anon | Apr 19, 2007 5:01:06 PM

"A criminal defendant can never FORCE the government to litigate anything. If the claim is oh-so-frivilous, then the government should refuse to participate in the appeal. Don't file a brief, don't show up for oral argument, don't do anything. Of course, the court could order the government to respond. But that's the court's decision, not the defendant's."

That is too naive. The Government can't simply ignore one issue in a multi-issue brief. Further, if the defendant litigates the claim in the trial court and on appeal, the Government has to expend some effort insulating its judgment from error. I don't think a defendan can litigate a claim his own conduct has rendered moot, and then complain that the government is withholding a lower sentence as punishment. To the contrary, the government is simply refusing to reward defendants who litigate claims despite ZERO chance of a remedy.

As for my vasectomy example, I tried to make clear that the defendant had already had a vasectomy (voluntarily) prior to ever confronting my hypothetical statute. Do you still think that that person -- who can obtain no relief even if his 8th amendment claim is correct -- is entitled to litigate it and claim prevailing party status?

That's really my point: there are defendants out there raising and preserving Apprendi claims for appeal even though they pled guilty and admitted the sentence-enhancing fact. So, even if they're right that the fact is an element that should be decided by a jury b.a.r.d., they don't get to claim a remedy because they decided to plead guilty. You can't raise a claim in the trial court that you have no standing to raise, and then complain on appeal about the government's failure to reward your litigation conduct with a lower sentence

Posted by: gnome | Apr 19, 2007 5:18:10 PM

"Do you think that it is responsible advocacy to raise an constitutional claim that, even if meritorious, can lead to no remedy for your client?"

gnome, leaving aside your statement of the case law, lawyers have a duty to argue for CHANGES in the law. That's not frivolous. Clarence Darrow arguing that indigents have a right to counsel, which was not true at the time, was not frivolous. That's one way the law stays legitimate.

Read Federal Rule of Civil Procedure 11 and the case law.

Posted by: rothmatisseko | Apr 19, 2007 10:35:22 PM

:CHANGES in the law. That's not frivolous. Clarence Darrow arguing that indigents have a right to counsel, which was not true at the time, was not frivolous. That's one way the law stays legitimate."

I wish all of you would read and understand the premise of my hypo: I am assuming that the constitutional claim the defendant wants to raise has merit; the problem is that he cannot benefit in any way from a ruling in his favor. If that's the case, is he advancing a frivolous claim?

Posted by: gnome | Apr 20, 2007 9:16:11 AM

"I wish all of you would read and understand the premise of my hypo: I am assuming that the constitutional claim the defendant wants to raise has merit; the problem is that he cannot benefit in any way from a ruling in his favor. If that's the case, is he advancing a frivolous claim?"

We are responding to your question, you just don't like the answer. NO, the defendant in your hypo is not advancing a "frivilous" claim.

"Do you still think that that person -- who can obtain no relief even if his 8th amendment claim is correct -- is entitled to litigate it and claim prevailing party status?"

YES, such a defendant would be able to claim prevailing party status.

"The Government can't simply ignore one issue in a multi-issue brief. * * * the Government has to expend some effort insulating its judgment from error."

Why not, and why? If the claim is meritless or won't obtain the defendant any relief, as you say, why should the government choose to waste resources "insulating the judgment from error." If the defendant's claim is so meritless than the judgment shouldn't need insulation.

Posted by: Anon | Apr 20, 2007 11:11:51 AM

You're right -- if you are saying that a defendant who effectively lacks standing to raise a constitutional claim is not fomenting frivolous litigation so long as the constitutional claim itself is meritorious, then I completely disagee with you.

Under your view of things, a defendant who decides to plead guilty can essentially file a declaratory judgment action that a certain statute or rule might be unconstitutional as applied to another defendant, and then demand that the Government reward him with an acceptance of responsibility reduction.

In my book, if you want to plead guilty and obtain your acceptance points, then don't litigate claims that can't benefit you.

Posted by: gnome | Apr 20, 2007 11:34:09 AM

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