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November 28, 2016

Guest posting from Prof Carissa Hessick on SCOTUS argument: "Beckles and the Continued Complexity of Post-Booker Federal Sentencing"

Image (1)I am pleased to be able to reprint this original commentary concerning today's SCOTUS oral argument from LawProf Carissa Hessick:

Earlier today the Supreme Court heard argument in Beckles v. United States.  Beckles raises two questions: (1) whether the now-advisory Federal Sentencing Guidelines are subject to vagueness challenges under the Due Process Clause, and (2) whether, assuming the Guidelines are subject to vagueness challenge, a ruling that a Guideline is unconstitutionally vague is retroactive under the Teague framework.  The Beckles case and today’s argument illustrate how complicated federal sentencing has become since the Supreme Court decided to treat the Federal Sentencing Guidelines as advisory in Booker v. United States.

In the decade since Booker was decided, the Supreme Court has clarified that, although the Federal Sentencing Guidelines are no longer mandatory, they are also not entirely voluntary.  Deputy Solicitor General Michael Dreeben did a fantastic job in his argument explaining the middle path that the Court has carved for the Guidelines since Booker.  He not only described the anchoring effect of the Guidelines, but he also noted that the Court has adopted procedural mechanisms “designed to reinforce the primacy of the Guidelines.”  The current advisory system, according to Dreeben, “injects law into the sentencing process.”

As the Beckles argument illustrates, the middle path that the Court has carved is complicated.  The Court continues to struggle with how to regulate an advisory system in light of the fact that the purely discretionary system that the Federal Sentencing Guidelines replaced was essentially unregulated.  Indeed, counsel for Beckles spent much of her argument fending off questions by various Justices about how a Guideline could be unconstitutionally vague if a purely discretionary system is permissible under the Constitution. Justices Alito, Breyer, Kennedy, and Chief Justice Roberts all asked questions to this effect.  Notably, later questions by Justice Breyer and the Chief Justice appeared to accept that a purely discretionary system might be subject to different rules than an advisory system.

The complexity of the middle path was on full display in today’s argument in part because the United States relied on the complexity of that path to take what Justice Kennedy and a court-appointed amicus characterized as inconsistent positions.  The United States argued that the advisory Guidelines are subject to vagueness challenges because of the important role that they continue to play in the post-Booker world.  But the government argued that the advisory status of the Guidelines should prevent the Court from making any vagueness ruling retroactive.  The government distinguished this case from a recent juvenile life-without-parole case, saying that juvenile LWOP cases require a particular finding in order for a defendant to be eligible for a life-without-parole sentence.  In contrast, according to the government, the Guidelines affect only the likelihood that a defendant will receive a particular sentence.  The government relied on the distinction between likelihood of a sentence and eligibility for a sentence as the reason it took different positions on the vagueness question and the retroactivity question. And while Justice Sotomayor pressed the government on this distinction, none of the attorneys or the Justices mentioned an important fact about this case: When Beckles was sentenced in a Florida district court, the prevailing law in the Eleventh Circuit actually required such a finding. (Because of the amount of time taken up by questions about vagueness, petitioner’s counsel addressed the likelihood/eligibility argument only in the single minute she had remaining for rebuttal. The argument was made in an amicus that Doug and I co-authored with Leah Litman, which is available here.)

Other odd aspects of the Court’s post-Booker jurisprudence were also on display during the Beckles argument.  Chief Justice Roberts and Justice Alito both raised the question whether the Court’s recent decisions about the quasi-legal status of the advisory Guidelines should endure in the face of changing sentencing patterns in the district courts.  And Justice Breyer, who has often served as a champion for the U.S. Sentencing Commission, raised the possibility that the courts should be more indulgent of vague sentencing guidelines than vague statutes because the Commission is in a better position than Congress to refine the law.

Perhaps because this area of the law is so complex, both Justice Ginsburg and Justice Kennedy appeared to cast about for an easy way to dispose of this case.  At one point Justice Ginsburg said as much: “I thought . . . that if we decide the first issue, . . . the case is over.  But -- so I was thinking, well, we could decide that issue and not reach either vagueness or retroactivity.”  Much to his credit, Deputy Solicitor General Dreeben discouraged the Court from taking that path, even though it would have meant a victory for the Government.  Dreeben noted that there are many cases that raise the vagueness and the retroactivity questions that are currently pending in the lower courts.  And he made an institutional appeal to the Justices to resolve the retroactivity issue even if they could decide this case based on some commentary in the Guidelines.  I admire Dreeben for making this appeal to the Justices.  But I don’t think that his appeal went far enough. There are a number of defendants in the Eleventh Circuit who have viable vagueness claims that are not claiming retroactivity.  Because the Eleventh Circuit refused to recognize any vagueness challenges to the Guidelines, the Court should also rule on the vagueness issue even if it determines that its ruling will not be retroactive.

Although I was not at the argument this morning, it is hard to read the transcript of the Beckles argument and think that the defendant is likely to prevail. Only Justice Sotomayor seemed to be asking friendly questions of petitioner’s counsel, and only she seemed to resist the Government’s likelihood/eligibility argument.

But even if Beckles does not prevail, we may see another vagueness challenge to the Guidelines in the not-so-distant future.  For one thing, Dreeben made clear in today’s argument that the Government has not taken a position on retroactivity for pre-Booker mandatory sentences.  So if Beckles loses on the retroactivity question, then the courts of appeals will have to decide retroactivity in those pre-Booker cases, and if the courts split on that question, the Supreme Court may need to take another case.  For another, the Court has granted cert in another statutory vagueness case, Lynch v. Dimaya.  The statute at issue in Dimaya, 18 U.S.C. § 16(b), has been incorporated into a Guideline, U.S.S.G. § 2L1.2(b)(1)(C).  So if the Court decides that § 16(b) is unconstitutionally vague in Dimaya, and if the Court does not answer the vagueness question in Beckles, then the Court may need to take another Guidelines vagueness case.

November 28, 2016 at 06:19 PM | Permalink

Comments

Small point of clarification: an amendment to USSG 2L1.2 went into effect on November 1st, and the new version of 2L1.2 no longer incorporates 16(b).

Posted by: Bleak | Nov 29, 2016 1:51:33 AM

Thanks for the posting Doug. Currently I am writing a cert petition to the NC Sup Ct, dealing with vagueness of an aggravating factor of "the offense was especially heinous, atrocious and cruel."

The twist is that the EHAC ag was the sole aggravating factor, which under United States v Alleyne, means it was used as an element of a greater offense. SCOTUS has ruled several times that EHAC is vague unless limited, or cured, by a judicial instruction.

My argument is that, while EHAC, may be permissible as a sentencing factor, it cannot pass vagueness muster as an element. Particularly since only the legislature can define a crime, and the NC General Assembly has not enacted legislation which limits the EHAC ag post Ring.

I look forward to reading the article. I have long been a fan of Prof Hessick's work.

Bruce

Posted by: bruce cunningham | Nov 29, 2016 5:04:01 AM

"My argument is that, while EHAC, may be permissible as a sentencing factor, it cannot pass vagueness muster as an element. "

Makes sense to me.

Posted by: Daniel | Nov 29, 2016 11:23:01 AM

What a DUD the Beckles argument was! After conceding that Johnson's vagueness holding applies to the career offender's residual clause, and after allowing tons of re-sentencings to go forward in the lower courts, the Solicitor General is now faced with the prospect that the SCOTUS will reject its concession.

Posted by: I Care | Nov 29, 2016 1:02:50 PM

That isn't a surprise. The current SG's office is the most politicized in our nation's history and could care less what the law is.

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