Wednesday, January 02, 2013

"Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing"

The title of this post is the title of this new paper by Carlos Berdejo and Noam Yuchtman now available via SSRN.  Here is the abstract:

Whether judges respond to political pressure is an important question occupying social scientists. We present evidence that Washington State judges respond to such pressure by sentencing serious crimes more severely.  Sentences are around 10% longer at the end of a judge's political cycle than the beginning; deviations above the sentencing guidelines increase by 50% across the electoral cycle.  We conduct robustness and falsi fication exercises and distinguish between judges' election cycles and other officials' by exploring non-linear eff ects of electoral proximity.  Our fi ndings inform debates over judicial elections, and highlight the interaction between judicial discretion and the influence of judicial elections.

January 2, 2013 in Applicability of Blakely to FSG, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, August 30, 2012

Fourth Circuit vacates LWOP sentence for illegal gun possession premised on uncharged murder

A Fourth Circuit panel handed down an an intricate set of opinions today in US v. Horton, No. 11-4052 (4th Cir. Aug. 30, 2012) (available here). The ruling provides yet another reminder that, despite the Supreme Court's work in Blakely now more than 8 years ago, federal defendants still frequently face much longer sentences based on questionable judicial fact-finding by a perponderance of evidence under the federal sentencing guidelines. In Horton, however, the defendant got a break thanks to the Fourth Circuit view of how the guidelines should be applied, as this first paragraph from the majority opinion reveals:

Timothy Tyrone Horton appeals his conviction for possessing a firearm while a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924, and also appeals the district court’s imposition of a sentence of life imprisonment.  For the reasons set forth herein, we affirm Horton’s conviction.  We conclude, however, that the district court erred in applying the murder cross-reference provision in United States Sentencing Guidelines Manual ("USSG" or "Guidelines") § 2K2.1(c)(1) and in treating as relevant conduct a murder that occurred during the course of an unrelated and uncharged offense, which error substantially increased Horton’s advisory Guidelines range.  Accordingly, we vacate Horton’s sentence and remand for resentencing.

August 30, 2012 in Applicability of Blakely to FSG, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (1) | TrackBack

Monday, April 30, 2012

Do capital repeal and three-strikes reform initiatives help or hurt each other in California?

As noted in this prior post, it became official last week that Californians will get a chance to vote this fall on a ballot initiative to repeal the state's death penalty.  In addition, as reported in this effective press story from late last week headlined "Three Strikes Law initiative likely to qualify for Nov. ballot," it also now appears that voters at the same time will have a chance to reform the state's (in)famously harsh three-strikes sentencing law. Here are the basics on that front:

An initiative written by Stanford University professors to scale back California's tough Three Strikes Law has garnered more than 830,000 signatures of support, virtually ensuring the measure will make the November ballot and triggering the state's latest struggle over how harshly criminals should be treated.

California is the only one of the 26 states with three strikes laws to allow prosecutors to charge any felony as a third strike -- and then to lock up the offenders for 25 years to life. The proposed initiative would reserve that penalty for the baddest of the bad, including murderers, rapists and child molesters.

Supporters turned in more than 830,000 signatures to state election officials Thursday -- 504,760 more than needed. They also announced the endorsement of Los Angeles County District Attorney Steve Cooley -- a Republican -- marking a crucial step toward a bipartisan coalition.

"The Three Strikes Reform Act is right for California," Cooley said. "It will ensure the punishment fits the crime. Dangerous recidivist criminals will remain behind bars for life, and our overflowing prisons will not be clogged with inmates who pose no risk to public safety."

Under the existing Three Strikes sentencing scheme, offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen to get something to eat and forging a check for $146 at Nordstrom have been sentenced to life in prison.

Cooley's support is particularly notable because he has taken a conservative position on two other criminal-justice controversies in California. He opposes a November ballot measure that would scrap the death penalty and has sharply criticized the Legislature's massive "realignment" program, which started in October to relieve prison overcrowding, for effectively reducing the amount of time low-level offenders spend behind bars.

But Mike Reynolds, a Fresno man who helped draft the Three Strikes Law after his daughter was slain in 1992 by two repeat offenders, said prosecutors like Cooley should have more discretion over how to charge anyone with two strikes on their record who commits another felony, no matter how minor. "It's easy if you live in Palo Alto, where Stanford is and where it's safe, to be for this," Reynolds said. "The only question voters need to answer is which of these offenders with at least two serious or violent convictions on their record would you like to have living next door to you? And if you wouldn't want them next door to you, why would you put them next to any California family?"...

The new measure would allow only certain hard-core criminals to be put away for life for any felony offense, including shoplifting, while restricting the third strike to a serious or violent felony for everyone else.  It also does not include changing the rules for second-strikers, which currently call for sentences to be doubled in many cases, even if the second offense is not serious or violent.  Although an effort to alter the law in 2004 required third-strikers whose last offense was nonviolent and nonserious to be resentenced, the new initiative would allow only third-strikers to ask the courts to resentence them.

District attorneys in the Bay Area are expected to support the initiative, though several were noncommittal about it Thursday.  A spokeswoman for Alameda County District Attorney Nancy O'Malley said she doesn't take a position on pending initiatives. Steve Wagstaffe, San Mateo's top prosecutor, said he would "not be bothered if it won" because it already is extremely rare for his office to seek life sentences for people who commit nonviolent or nonserious offenses, with the exception of sex crimes.

Santa Clara County District Attorney Jeff Rosen said he'll make a final decision after a meeting in June of the California District Attorneys Association.  "I believe the Three Strikes Law should be reformed," Rosen said through a spokesman.  "The Stanford initiative contains some good ideas."...

Advocates predict the savings will prove persuasive, particularly with critical swing voters, though they also plan to frame the campaign in terms of public safety and fairness.  A previous measure in 2004 failed by about 3 percentage points after a last-minute media blitz by then-Oakland Mayor Jerry Brown, then-Gov. Arnold Schwarzenegger and former Gov. Pete Wilson. Brown has declined to comment on the current effort.

Opposition to the new measure is expected to come largely from the Central Valley and parts of Southern California.  The previous measure, Proposition 66, sought to limit felonies that trigger a third strike to violent or serious crimes in every case.

This latest effort to reform California's three-strikes law via inititative is fascinating and worth watching closely in its own right.   But the fact that this reform effort will appear on the ballot (and likely get less attention both nationwide and within California) at the same time as an inititative to repeal yhe state's death penalty adds an extra important (and distorting?) element to the public discourse. 

I can readily imagine some (many? most?) criminal justice reform advocates urging a "yes" vote on both the death penalty repeal and the three-strike reform initiatives. For example, this recent editorial from the San Francisco Examiner, headlined "Time to end the death penalty, reform three-strikes law," wastes little time getting on record support for both initiatives. 

But, as the report above highlights, there is reason to expect some (many? most?) California prosecutors will be fine with the three-strikes reform initiative but will oppose repeal of the death penalty.  In addition, I would not be surprised if some hard-core death penalty abolitionists will express no more than luke-warm support for three-strikes reform if (when?) any polling data suggest that voters may be likely to vote for only one and not both of these sentencing reform proposals.

For a whole bunch of reasons, I do not think these distinct California reform initiative should necessarily stand or fall together.  And yet, I will not be surprised if they do, and I also cannot figure out if this reality makes me extra excited or extra concerned about crime and punishment debates in California over the next sixth months. 

April 30, 2012 in Applicability of Blakely to FSG, Death Penalty Reforms, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, July 17, 2011

New ACLU report claims California's death penalty is already dead

Easset_upload_file82_9465_e The ACLU of Northern California has released this notable new report on the Golden State's death penalty system. The report his titled, "California's Death Penalty is Dead: Anatomy of a Failure," and here is part of the executive summary:

California’s death penalty is dead.  Prosecutors, legislators and taxpayers are turning to permanent imprisonment with no chance of parole as evidence grows that the system is costly, risky, and dangerous to public safety.  New polls also indicate that voters favor replacing the death penalty with life in prison without the possibility of parole, with a requirement for work and restitution paid to the Victims’ Compensation Fund.

Most significantly, only three death sentences were handed down in California from January to June 2011, compared with the same period last year when there were 13.  This is the lowest number of new death sentences in a six month period since the death penalty was reinstated in 1978, and a clear indicator that district attorneys and jurors across the state are turning away from the death penalty.  On average, 49% of death sentences are decided in the first six months of the year.  This means that California may be on track for a total of less than 10 death sentences in 2011 -- the lowest number in 33 years.

Three other related developments reveal a system in total collapse:

California has not executed anyone since 2006 and there is no reason to believe that executions will ever resume.....

Death penalty promoters have been snubbed at the ballot box....

Death penalty costs are extraordinary and detrimental to public safety at a time of economic crisis.

Some recent related posts:

July 17, 2011 in Applicability of Blakely to FSG, Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Friday, February 19, 2010

"Deciding When To Decide: How Appellate Procedure Distributes the Costs of Legal Change"

The title of this post is the title of this notable new piece from Professor Aaron-Andrew P. Bruhl that should be of extra interest to Blakely and Booker fans, as evidenced by this abstract:

Legal change is a fact of life.  The need to deal with legal change has spawned a number of complicated bodies of doctrine.  Some of these issues have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent.  How such questions are answered affects the size and the distribution of the costs of legal change.  Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, this Article focuses on lower courts’ discretionary decisions about when to decide the cases that come before them: should lower courts continue to decide cases in the regular course even when a change in law is in the offing, or should they delay adjudication until after the dust has settled?

The Article has both positive and normative aspects. It begins by drawing together several bodies of doctrine in order to present a unified account of what we can call our system’s law of legal change. The Article then presents a case study of the six-month interval between Blakely v. Washington, which invalidated a state sentencing scheme and cast substantial doubt on federal sentencing guidelines, and United States v. Booker, which then held Blakely applicable to the federal system. A majority of the appellate courts that addressed the question upheld the federal guidelines during this transitional interval.  Beneath the surface, however, the various courts upholding the guidelines managed cases very differently.  Some circuits bore much of the cost of legal change themselves, while others shifted some of the cost to litigants and other courts.

Based on the insights gleaned from this episode, I suggest a framework for evaluating and perhaps improving how courts process cases during transitional periods.  Case-management decisions are highly context-specific, which makes it difficult and perhaps undesirable to formulate general rules, but we might be able to improve courts’ handling of such matters by altering the institutional environment and modifying incentives.

February 19, 2010 in Applicability of Blakely to FSG, Blakely Commentary and News, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, February 08, 2007

An initial victory in Faulks

As detailed in this post, last month I helped a team of sharp young lawyers develop and file this cert petition in US v. Faulks.  (The case concerns the procedures for revoking supervised release and presents Blakely issues in an extraordinary factual setting).  As shown here, though the SG waived its right of response, the Supreme Court has now ordered the government to respond to the Faulks petition.

Folks with greater knowledge of SCOTUS practices tell me that this certainly does not mean that the petition will receive a grant, but it is a good sign suggesting the Justices saw something worth giving a closer look.  The SG's brief in opposition (BIO) is now due on March 9, and I am very much looking forward to seeing what the BIO says. 

February 8, 2007 in Applicability of Blakely to FSG | Permalink | Comments (3) | TrackBack

Saturday, June 04, 2005

1st Circuit addresses Blakely's applicability to revocation of supervised release

This past Friday was a day for interesting (and arguably ground-breaking) Apprendi/Blakely decisions.  In addition to the notable Second Circuit ruling on Apprendi's applicability to New York's persistent felony offender statute in Brown v. Greiner (basics here), Friday also brought from the First Circuit US v. Work, No. 04-2172 (1st Cir. June 3, 2005) (available here), which rules that Blakely is not applicable to judicial determinations in the course of revoking supervised release and ordering a term of imprisonment. 

Work is an interesting ruling for a number of reasons, and it provides useful background on both Blakely and the federal law of supervised release.  Here is the decision's opening paragraph:

In this appeal, defendant-appellant Timothy P. Work argues that the Sixth Amendment, as interpreted in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the revocation of supervised release and the consequent imposition of additional prison time. He posits that when such a revocation leads to additional imprisonment above and beyond the top of the original guideline sentencing range, the facts underlying the revocation must be proven to a jury beyond a reasonable doubt.  We conclude that the appellant's argument is doubly flawed: it is premised not only on a misunderstanding of supervised release but also on an attempted importation of Sixth Amendment jury trial rights into an area in which they do not belong.

Among other interesting aspects of the Work court's discussion of these issue is this (debatable?) passage addressing not only the scope of the Sixth Amendment, but also due process concerns and requirements (citations omitted):

The difficulty with the appellant's argument is that this type of judicial factfinding [i.e., finding facts to confirm violation of supervised release conditions] does not pose a Sixth Amendment problem.  The law is clear that once the original sentence has been imposed in a criminal case, further proceedings with respect to that sentence are not subject to Sixth Amendment protections.  To be sure, the conversion of a less restrictive form of punishment, such as supervised release, to a harsher one, such as imprisonment, does entail a deprivation of liberty (albeit conditional liberty).  As such, the accused must be accorded a suitable panoply of due process protections.  The process that is due, however, does not encompass the full sweep of the Sixth Amendment's prophylaxis (such as a right to a jury trial on the facts of the alleged violation). Nor are facts required to be proven beyond a reasonable doubt in such a proceeding.

(First Circuit aficionados get only one guess as to the author of Work and its discussion of "the Sixth Amendment's prophylaxis.")

June 4, 2005 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Appellate Courts, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, December 30, 2004

A belated information present from the USSC

In my testimony last month to the US Sentencing Commission, I urged the USSC to examine post-Blakely developments, especially in the Seventh and Ninth Circuits where Blakely has been deemed applicable to the federal guidelines, to help assess whether a "quick legislative fix" would be truly essential after a possible ruling in Booker and Fanfan applying Blakely to the federal system.  Thus, I am very pleased to see that the USSC now has posted on its Booker/Fanfan page a document entitled "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here).

Here is how the USSC describes this fascinating new document on its Booker/Fanfan page:

While awaiting the submission and analysis of empirical data on the effect of the Blakely decision, the Commission staff conducted a survey of 40 sample subjects (judges, defense counsel, and probation officers) in the Seventh and Ninth Circuits to attempt to determine, through anecdotal means, how those jurisdictions are handling their criminal caseloads.

Though this document is, as stressed by the USSC, "preliminary" and "anecdotal" and only includes cases through October, it is still an extremely important and interesting (partial) report on the post-Blakely state of federal sentencing.  Along with this week's WSJ article on federal court doings, this document is a must read for everyone interested in assessing both the present and possible future of federal sentencing.

In subsequent posts over the next few days, I will highlight some of the most essential elements of this memo and also reflect on what it suggests for those planning for a post-Booker world.  For now, let me just lavish the USSC with praise for making this document publically available.  Perhaps this good deed will bring good karma for USSC Chair Judge Hinojosa's beloved Texas Longhorns (who will need to do a lot better against a Big Ten team in the Rose Bowl than another Big 12 team did against my Buckeyes in the Alamo Bowl last night).

December 30, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Severability of FSG | Permalink | Comments (1) | TrackBack

Tuesday, November 09, 2004

Booker and Fanfan pre-reading guide

If Booker and Fanfan are decided today — and that is still a big "if" — there will be so many ways to examine and assess what the Supreme Court says (and does not say). Besides obviously being concerned with the basic holding and vote count, I will also be thinking about:

1. Who writes the majority opinion and any concurrences or dissents.

2. Whether the Court's opinion discusses constitutional provisions other than the Sixth Amendment and how the Court handles precedents like Watts and McMillan and Williams.

3. Whether the Court's opinion, directly or indirectly, speaks to the continued vitality after Blakely of recent key precedents like Almendarez-Torres and Harris (background on these issues can be found here).

4. Whether the Court's opinion, directly or indirectly, speaks to issues relating to Blakely's retroactivity.

5. Whether the Court's opinion, directly or indirectly, speaks to issues confounding state courts such as Blakely's applicability to consecutive sentencing determinations or the scope of the "prior conviction" exception (or the dozens of other smaller "Blakely scope" issues).

I could go on — there are also many questions about permissible remedies for current cases and advising other branches about how to handle future cases — but I am already exhausted just thinking through all the issues. What I fear most before seeing any opinion is the prospect of a deeply fractured Court creating uncertainty on even those issues it directly addresses. Here's hoping that, no matter what the Court says, it speaks with a relatively clear voice.

November 9, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, October 14, 2004

Better than okay in OK

I have a fast hotel connection here in Oklahoma City (where I am participating in this exciting conference tomorrow). And to celebrate all things Sooner, I cannot help linking back to the great O'Daniel decision by Chief Judge Sven Erik Holmes of the Northern District of Oklahoma here, and also a great pre-Blakey report from the Oklahoma Sentencing Commission here.

October 14, 2004 in Applicability of Blakely to FSG, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Tuesday, October 05, 2004

A Fall Classic?

With a full slate of baseball playoff games starting today, hard-core baseball references will likely pervade this blog in the weeks ahead. As noted here and here, there are many compelling MLB playoff stories, and it is great fun to talk about Blakely through the lens of baseball lore. For example, it is easy to think of (Yankee fan) Justice Scalia as something of a modern-day legal Babe Ruth, with Blakely perhaps being his called shot.

Today I am thinking about whether we will have a World Series champion or a decision in Booker and Fanfan first. I encouraged guessing about the likely date of a ruling here, and a knowledgeable SCOTUS-watcher yesterday suggested November 1 as when we would see a decision (note that this schedule indicates the World Series will be wrapped up no later than October 31).

Though I continue to expect to see a decision in Booker and Fanfan sometime in November, the need for a quick ruling is considerable and yesterday's argument has me thinking we might see a decision this month. That possibility leads me to ask who could be the Supreme Court's "Mr. (or Ms.) October"?

Justice Thomas seems to have a bit of swagger like Reggie Jackson, the original Mr. October, and it is fun to speculate about the Justice's views on Booker and Fanfan. As is his custom, Justice Thomas did not say a word at yesterday's oral argument. But he has been one of the most "vocal" Justices in the Apprendi line of decisions, and I think there is a real chance he will get to write the opinion for the Court in Booker and Fanfan.

In honor of the greatest month in sports, I highly encourage readers to use the comments for more baseball-Blakely talk. Should we think of Justice Breyer as Abner Doubleday or Alexander Cartwright because of his role in creating the federal guidelines? Is Justice O'Connor the High Court's Jackie Robinson for breaking through the SCOTUS gender line (and might that in turn cast Justice Ginsburg in the role of Satchel Paige)?

Gosh this is fun, please join in. Football fans should feel free to chime in, too. However, since the departure of superstar Justice Byron "Whizzer" White — who was runner-up for the famed Heisman Trophy in 1937 — I think only Chief Justice Rehnquist has the stature to hold his own on the gridiron.

October 5, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Monday, October 04, 2004

Reflections on the SG's argument on Blakely's applicability

Arguing for the government, Acting SG Paul Clement very effectively framed the issues facing the Supreme Court in an effort to highlight the "carnage and wreckage" that would flow from applying Blakely to the federal guidelines. Clement noted at the outset that there are 1200 federal criminal sentencings each week, and he suggested they could all be suspect if Blakely applies to the federal system. He also strongly argued that Dunnigan, Witte, Watts and Edwards all conveyed a particular understanding of the guidelines as distinct from the statutory maximums enacted by Congress.

Clement cleverly focused on the fact that in Watts essentially the whole court, save Justice Stevens, in summary fashion rejected a challenge to the use of acquitted conduct in guidelines sentencing. He also ultimately asserted that the key precedent really at stake was Mistretta, as he suggested that Mistretta itself would have to be reversed because the respondent’s argument would essentially mean that the US Sentencing Commission has functionally created elements for thousands of new federal crimes.

I think Clement is right when saying that extending Blakely to the federal guidelines would essentially overrule Watts. But that is, in my view, another argument for extended Blakely. Every year I teach Watts in my sentencing courses, and every year students are aghast that the existing guidelines require judges, based on preponderance findings, to enhance sentences based on facts relating to charges on which a defendant was acquitted. It is very hard for a criminal justice system to endorse Watts and also claim to have a serious commitment to the jury right.

But I think Clement is wrong when saying that extending Blakely to the federal guidelines would essentially overrule Mistretta. This claim is based on the assertion that extending Sixth Amendment rights to guideline factors would turn them into de facto elements. But because such guideline factors require judges to impose longer sentences, they truly are already de facto elements (and this is why Ex Post Facto law limits the application of new guidelines to old cases). In other words, defendants now feel substantively the impact of guidelines factors as if they were elements, and the SG is just arguing that defendants should not be provided the usual procedural protections that accompany such elements. This is what gives the government's argument a "through the looking glass" quality: according to the government, defendants get full procedural rights when Congress substantive increases sentences, but they do not get these rights when a (less democratically accountable) administrative agency increases sentences.

As I noted in a prior post and as others have noted throughout the blogsphere and in the media, it does not seem Clement was winning any converts with his (well crafted but very uphill) arguments. Indeed, the most interesting interchange during this part of the argument was when Justice Kennedy started to explore with Clement whether different facts might get different treatment under the Blakely rule. This led me to wonder whether Justice Kennedy was hoping to engineering a more nuanced approach to the (still developing) Blakely doctrine. No one followed Justice Kennedy's lead at oral argument, but I think he may be on to something that could merit some time and energy as the Justices start writing all this up.

October 4, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (6) | TrackBack

Sunday, October 03, 2004

Ivory tower optimism meets inside the Beltway realism

I explained earlier this week here why I am optimistic about the future of sentencing reform, but I have conceded here that meaningful sentencing reform may seem much more possible when considered from the ivory tower than from inside the Beltway. Additional proof of these dynamics comes from a set of "DC Observations" I received from Baylor Law Professor Mark Osler this morning.

Long-time readers know that Professor Osler (writing now, of course, from the ivory tower) has suggested one of the most sensible and straight-forward "solutions" to reforming federal sentencing after Blakely. (Professor Osler's thoughtful "3x Solution" can be accessed here.) But, after a trip to DC for research purposes, Professor Osler shares these sobering observations of the future of federal sentencing reform:

Below are my four principle observations from my DC adventure:

1. In the end, Booker and Fanfan aren't very important (unless the Court does not apply Blakely to the Guidelines). As you have written, given the composition of the Blakely majority it is hard to believe that anyone in the majority will defect, and it is clear that Blakely will be applied to federal sentencing. All of our fussing about severability, however, will be pointless. Once Blakely is applied to federal sentencing, Congress will act, regardless if all or part of the Guidelines fall. It is Congress, not the Court or the USSC, that will remake sentencing — the Court's role will be just to provide the impetus for change, and the USSC's job will be to follow very specific Congressional mandates, ala Feeney.

2. Once the Guidelines fall, there will be no great debate on what comes next. Rather, as with Feeney, the new rules will come down without significant debate. Newt Gingrich has a lot to do with this. When he became House Majority Leader, he did two things to the process: (1) He curtailed the power of the committee chairs, increasing the power of the party whips; and (2) He halved the staffs of the committees. This latter change had profound effects. Because there are no longer enough staffers to write legislation, this job is largely performed now by lobbyists. On any given bill, the Republican powers assemble relevant lobbyists to draft legislation (at least on the House side) and pass it in party-line votes. For sentencing matters, the relevant lobbyists are from DOJ — they will, in the end, write the new legislation in the House. This means more mandatory minimums are on the way because that will be Main Justice's preference (as evidenced by the recent letter-to-the-editor campaign by DOJ bolstering current minimums), despite the opposition to same from AUSA's who actually try cases.

3. Don't count on decision-makers caring much what you think. Once I was convinced that the House was not approachable based on the above, I put on a full-court press to meet with someone from the office of Sen. John Cornyn (R-Tex), who is on the Senate Judiciary Committee. I contacted Cornyn's office by phone, email, and fax seeking only a few minutes with a staff member. In my communications, I made it clear that I was a constituent, and that I was a former AUSA who now teaches sentencing law in Texas. My pleas were ignored, and my calls went unreturned.

4. Finally, in all of the academic discussion of these matters, almost no one has discussed what may be ultimately most important: The election. That may be because many of us (myself included) are not very partisan politically. However, we can't ignore politics in making our prognostications. If Bush wins (and a Republican majority remains in the House, a near-certainty), all of the above will remain true. If Kerry wins, all of the above may also remain true, but there is a chance it won't. If the new legislation is stalled until a new administration comes in, the difference won't be at the end of the process (Kerry's ability to veto) but the front end — it is likely that the new AG will be less inclined to lobby for mandatory minimums, and will have a broader mind as to what reforms will be considered.


All of Professor Osler's observations are trenchant and provocative, and I hope I might reflect and comment on them late tonight. But, as I will explain in a following post, I am soon to be heading inside the Beltway myself, and I am now ever more fearful of what I will discover upon leaving the lovely confines of the ivory tower.

October 3, 2004 in Applicability of Blakely to FSG, Blakely in Legislatures, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, September 29, 2004

A judicious judicial "amicus"

I know I am biased, but it seems that judges who used to be law professors do the most amazing sentencing work these days. (Realize that many authors of some of the most interesting and important Blakely decisions — including Judges Cassell, Easterbrook, Gertner, Posner, Sutton, Wilkinson (and, of course, Justices Scalia and Breyer) — once did or still do teach at a law school. And this list likely overlooks some other great judges/professors who have written on Blakely.)

Continuing this trend, former Columbia Law Professor Gerard Lynch, who was a an intellectual leader in the field of sentencing even before becoming a judge, has followed up his work in US v. Emmenegger (available here with commentary here), with what is another humdinger in US v. Jackson, 2004 U.S. Dist. LEXIS 19219 (Sept. 22, 2004).

Judge Lynch's analysis and commentary in Jackson is too sophisticated and nuanced to briefly summarize here. But through the quotes below, readers should get a sense of why Jackson is a must read. Indeed, as suggested by the title of this post and revealed in the following snippets, Jackson really serves as yet another "amicus brief" for the Supreme Court as it tries to sort through all the issues it faces in Booker and Fanfan:

This case presents sentencing issues that demonstrate the occasional complexity of the federal Sentencing Guidelines. Although the intricacies of the guideline application here are interesting and significant in themselves, the case also illustrates aspects of the Guidelines that are of crucial relevance to both the constitutional questions currently under consideration by the Supreme Court, and to questions of sentencing policy that should be of concern to the Commission and the Congress....

The guideline calculation in this case illustrates both the complexity of the system that follows from its excessive detail and the constitutional awkwardness of at least certain provisions of the Guidelines that require sentencing judges in effect to declare defendants guilty of crimes of which they have not been convicted by a jury. At the same time, the case illustrates why simplistic analysis of "the constitutionality of the Guidelines in light of Blakely," which purports to find the entire system unconstitutional, radically oversimplifies a complicated and diverse sentencing system which in many of its aspects presents no constitutional difficulties at all.


Jackson is noteworthy in part because, as Judge Lynch explains, the applicable guideline "apparently requires the Court to consider whether he is guilty of the far more serious offense of attempted first-degree murder, an offense with which he has never been charged, let alone convicted by a jury." It is also noteworthy because it highlights the operation and availability of upward departures in a way which shows that such departures may be a key mechanism for avoiding "sentencing windfalls" (as suggested here).

September 29, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, September 28, 2004

Give the SG points for persistence

The Acting Solicitor General's reply brief (available here) makes a game effort to stick to its game plan, but both the reasoning and the strategy still leaves me puzzled. Let me detail some initial questions/concerns here:

On the applicability of Blakely to the federal sentencing guidelines: The logic of the SG's argument now seems to be that applying Blakely to the guidelines would essentially convert all guideline enhancement into elements, which is constitutionally problematic because only Congress can pass criminal statutes that create elements. It is a nice effort, aided clearly by the work of the Fourth Circuit in Hammoud, to try to make this case about the validity of Mistretta rather than about defendants' constitutional rights. But each step in this argument creates new puzzles.

First, it is long-established and essentially uncontested that Ex Post Facto doctrine limits the application of new guideline provisions; but that conclusion seems subject to the same concerns that the SG now raises about the application of Blakely. If treating the guidelines as the functional equivalent of statutes/elements for Ex Post Facto purposes has long been accepted and thought appropriate, I do not see why doing the same for the Sixth Amendment should be a real concern.

Second, though the line of cases culminating in Blakely have thrown around the term "element," the Court has also emphasized that effects and not form dictate the reach of the Sixth Amendment. Call it an element or a factor or Mary Jane, when the law makes a fact essential to the legal upper-limit of available punishments, five member of the Supreme Court have now said consistently for five years that such a fact must be proven to a jury beyond a reasonable doubt.

Third, as I suggested here in discussing Hammoud, there is a "through the looking glass" quality to the government's argument, especially given the Framers' apparent interests in democratic checks and balances and in safeguarding individual rights through the Bill of Rights. The consequence of the SG's argument, as I understand it, is that if and when Congress creates binding sentencing laws though traditional legislative means (securing approval by both houses and signature by the President), then defendants have the benefits of full constitutional procedural rights in the application of those laws. But if and when Congress finds a way to writing binding sentencing laws through non-legislative means (e.g., by creating an agency whose rules will be deemed legally binding despite never being traditionally enacted), then defendants have no procedural rights in the application of those laws.

On the severability of the federal sentencing guidelines if Blakely applies: The SG finally bites the bullet and explains with a bit more candor its complete views on severability. Parole is not back: footnote 3 of the SG's reply brief says the abolition of parole can be severed. Indeed, it seems all part of the SRA remain in place except the guidelines are no longer binding. But, clarifies the SG, the guidelines are completely jettisoned only in cases with Blakely factors, the guidelines should still apply with full binding force in cases without Blakely factors. The SG concedes that this suggested "use of two different sentencing schemes would no doubt lead to less proportionality and uniformity in sentencing," but that apparently is the price we must pay to avoid the prospect of "windfall sentences."

As I have explained here and here and here, the SG's proposed dual system with advisory guidelines in Blakely cases raises a host of critical administrative questions. But, most fundamentally, it makes it especially important, as I suggested here, to know exactly how many cases have Blakely factors. If only 20% of all federal cases have Blakely factors, the impact of the SG's proposed dual system with advisory guidelines used in 1 in 5 case is not all that dramatic. But the SG in its reply brief now represents that 65% of cases involve Blakely factors, which would mean that the SG is now urging the use of an advisory guideline system (a system which we know was expressly rejected by Congress when passing the SRA) in roughly two-thirds of all federal cases.

Beyond all these concerns, I wonder if DOJ and the SG fully appreciate the potential for bizarre and harmful gamesmanship which could (and likely would) result from its proposed dual sentencing system. Consider a defendant in a case without Blakely factors who might reasonably think she has a chance of a lower sentence without the guidelines' limits on the consideration of mitigating circumstances. (Martha Stewart or the defendant in this Ninth Circuit case come to mind.) That defendant would seem to have an incentive to obstruct justice, in order to create a Blakely factor, so that then a judge could be free to sentence lower than the guidelines.

Does DOJ really want a sentencing system in place which could create incentives for defendants to obstruct justice? Or, more importantly, do we really think this model of dual sentencing which could create these incentives better comports with Congress's goals when passing the SRA than simply requiring the government to actually prove all sentencing-enhancing guideline facts?

September 28, 2004 in Applicability of Blakely to FSG, Blakely in the Supreme Court, Booker and Fanfan Commentary, Severability of FSG | Permalink | Comments (3) | TrackBack

Tuesday, September 21, 2004

The Respondents' Briefs in Booker and Fanfan

I have now received the brief filed on behalf of Respondent Fanfan in the Supreme Court. It can be downloaded here:
Download fanfan_respondent_brief.pdf

I expect to have the Booker brief for posting soon, too.

UPDATE: And here it is:
Download booker_respondent_brief.pdf

September 21, 2004 in Applicability of Blakely to FSG, Blakely in the Supreme Court, Booker and Fanfan Commentary, Severability of FSG | Permalink | Comments (2) | TrackBack

Here come the amici for Respondents

In what I suspect is just the first two of a number of amicus filings, I have received the amicus briefs being filed by Families Against Mandatory Minimums and by the National Association of Criminal Defense Lawyers with the Supreme Court today in the Booker and Fanfan cases. The FAMM and NACDL efforts, both which address the applicability of Blakely to the federal guidelines and severability issues, can be downloaded here:

Download famm_amicus_brief.pdf

Download nacdl_amicus_brief.pdf

I hope to add any and all the other amicus filings I receive to this post and to use a separate post for the filings of the parties. Check back in later in the day, since I believe all the briefs must be filed this afternoon.

UPDATE: And now I have in copies of amicus briefs filed by the Washington Legal Foundation and by the National Association of Federal Defenders and by the New York Council of Defense Lawyers. The WLF and NAFD and NYCDL efforts can be downloaded below:

Download wlf_amicus_brief.pdf

Download nafd_amicus_brief.pdf

Download nycdl_amicus_brief.pdf

September 21, 2004 in Applicability of Blakely to FSG, Blakely in the Supreme Court, Booker and Fanfan Commentary, Severability of FSG | Permalink | Comments (3) | TrackBack

Wednesday, September 15, 2004

Martha Stewart speaks (on Blakely)!!

Well, the headline above may be a bit misleading, but according to this NY Times/AP story, Martha Stewart has decided to surrender for prison as soon as possible in order to "put this nightmare behind me and get on with my life."

Blakely nuts like me of course recall that, as discussed here, Judge Cedarbaum had cited Blakely when granting Martha's application for a stay of sentence pending appeal. According to the NY Times/AP story, Martha's lawyer Walter Dellinger "said he still believed she had a chance to win a reversal of her conviction [but he] had asked a federal judge to withdraw the stay of her sentencing pending appeal."

I cannot help but speculate about what sort of Blakely-related advice Martha received. I would guess that, despite my musings here and here, Martha's lawyers sensibly concluded it was unlikely Martha would be able, because of Blakely, to do a lot better at any resentencing. Or, to be more precise, Martha's lawyers probably said that she likely could serve her 10 months and be free before the all the questions surrounding federal sentencing law would be resolved. Thus, the case stands as another example of a point Jason Hernandez made here last month: many defendants are as interested in certainty as leniency; like Martha, they just want to do their time and be done with it.

September 15, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Monday, September 13, 2004

Surplusage split

As previously discussed here, last week in US v. Mutchler, 2004 U.S. Dist. LEXIS 18053 (S.D. Iowa, Sept. 09, 2004), District Judge Robert Pratt granted a defense motion to strike allegations of aggravating factors in a "Blakely-ized" superseding indictment. But around the same time, in US v. Baert, 2004 U.S. Dist. LEXIS 17911 (D. Maine Sept. 8, 2004), District Judge Brock Hornby (of Fanfan fame) refused to strike allegations pertinent to sentencing because his interpretation of Blakely requires the government to "include such allegations in order to obtain what it considers an appropriate sentence" under the guidelines.

In short, we have an understandable, but still significant, "surplusage split."

And, interestingly, I also recently discovered that US District Judge Robert W. Gettleman, in US v. Brown, 2004 U.S. Dist. LEXIS 17835 (N.D. Ill. Aug. 13, 2004), granted "defendant's motion to dismiss indictment or, alternatively, to strike surplusage from indictment in part" based on the government's addition of "sentencing allegations" in a superceding indictment. But, in the same order, Judge Gettleman granted, over the defendant's "vigorous" objection, the government's motion "to continue the trial date from August 16, 2004, to a date in the future after the court receives guidance from the US Supreme Court in US v. Booker and US v. Fanfan." Based on the surplusage skirmish, I will leave it to others to figure out who won the battle and who won the war in Brown.

September 13, 2004 in Applicability of Blakely to FSG, Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Friday, September 10, 2004

Different view of deep structural arguments

As discussed here, Judge J. Harvie Wilkinson's concurrence in the Fourth Circuit's Hammoud ruling provides a fascinating "separation of powers" argument for why Blakely does not apply to the federal guidelines.

Professor and FSR editor Aaron Rappaport has just completed a draft of an article — entitled "What the Supreme Court Should Do: Save Sentencing Reform, Gut the Guideliens" — which provides another and quite different perspective on these deep structural issues and their impact on the applicability of Blakely in the federal system. This article (which can be downloaded below) will be forthcoming in the next issue of the Federal Sentencing Reporter (FSR's second rapid-fire issue covering Blakely). Here's a taste:

I argue ... that a principled rationale for the Supreme Court's Apprendi and Blakely decisions can be identified, a rationale that provides a basis for distinguishing the two kinds of sentencing regimes, at least in some circumstances. At the same time, this analysis does not imply that the federal sentencing system necessarily withstands constitutional scrutiny. Rather, the more nuanced understanding of Blakely and Apprendi generates a specific test for evaluating whether administrative schemes survive review. It is a test the federal sentencing guidelines may not pass, at least absent significant restructuring.

This analysis provides a preliminary attempt to ground the Apprendi and Blakely decisions on deeper constitutional values. It does not aspire to be comprehensive and, in the press of time, the discussion passes over some important issues quickly. Nonetheless, my hope is that this effort will encourage further debate about the logic of the Court’s decisions.


Download rappaport_should_do.pdf

September 10, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Thursday, September 09, 2004

"Statutory" analysis in Hammoud

Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here) puts great emphasis on the use of the phrase "statutory maximum" in Blakely and Apprendi, and he thus finds Blakely inapplicable to the federal guidelines because they are not statutes. In Wilkins words, "Blakely applies to the guidelines only if the Blakely Court redefined the term 'statutory maximum' to include any fact that increases a defendant's potential sentence." But, says Wilkins, "[o]n close examiniation of Blakely, we conclude that the Supreme Court simply applied — and did not modify — the rule articulated in Apprendi."

Though I suppose this is a plausible reading of the Blakely decision, on close examination it raises a lot of questions. First, of course, if the Fourth Circuit is reading Blakely properly, one must wonder why Justices O'Connor and Breyer made so much of a fuss in their Blakely dissents. Obviously, given the energy they spend lamenting the apparent demise of the federal guidelines, Justices O'Connor and Breyer obviously thought Blakely was modifying the rule in Apprendi.

Second, a close reading of Justice Scalia's opinion in Blakely reveals that after the key passage (at slip op. 7) where Justice Scalia (re)defines "statutory maximum," he does not once use that apparently critical phrase again in the final 10 pages of his opinion for the Court. Instead, Justice Scalia speaks of "what state law authorized" (slip op. 8), and not "what a state statute authorized"; he speaks of the "jury's traditional function of finding the facts essential to lawful imposition of the penalty" (slip op. 13), not of the jury's role "finding the facts essential to statutory imposition of the penalty;" he speaks of a defendant's "legal right to a lesser sentence" (slip op. 13), not of a "statutory right to a lesser sentence;" he speaks of "all facts legally essential to the punishment" (slip op. 17), not of "all facts statutorily essential to the punishment." In other words, if Justice Scalia and the others in the Blakely majority were trying not to modify the meaning of Apprendi, the Court's opinion should have been crafted much more carefully.

Finally, as suggested here and here, the Fourth Circuit's conclusion that Blakely "simply applied" Apprendi may have some significant retroactivity consequences. The opinion in many ways intimates that the holding in Blakely was dictated by Apprendi (see p. 66: "in Blakely the Court simply applied the rule of Apprendi to a new set of facts "). But as these recent North Carolina rulings document, at least one Fourth Circuit state has a statutory sentencing guideline system just like the one declared unconstitutional in Blakely. After Hammoud, do all North Carolina prisoners who received enhancements and had not-yet final convictions in June 2000 (when Apprendi was decided) now have strong claims for Blakely relief in the federal courts (even if the state courts won't grant such relief)?

September 9, 2004 in Applicability of Blakely to FSG, Blakely in Appellate Courts, Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

So much to say, so much to say...

In addition to ensuring fans of the Dave Matthews Band will now visit this blog, the title of this post accurately describes both the Fourth Circuit's opinions in Hammoud — all 145 pages — and my own feelings about commenting on the Fourth Circuit's work in Hammoud. Let me here do some preliminary commentary, and allow later posts to zero in on various specifics.

First, let me apologize for giving the Fourth Circuit so much grief about taking so long to issue this opinion. I was not aware that there were so many serious and challenging non-Blakely issues that the court had to confront in Hammoud. (The Blakely discussion does not even start until page 48!) I am still a bit troubled by the court's decisions to rush out an opaque Blakely order and take over a month to provide more guidance, but the complicated legal circumstances in Hammoud make this procedure a bit more understandable.

Second, let me note that the author of the main opinion in Hammoud, Chief Judge William W. Wilkins was the original chair of the original US Sentencing Commission that drafted the original guidelines. Also, as we saw in the Koch en banc ruling from the Sixth Circuit, the Hammoud decision is the near judicial equivalent of a "party-line vote." If my calculations are correct, all three judges joining the Hammoud dissent were appointed by a Democratic President (assuming Judge Gregory is counted as a Clinton appointee), while seven of nine judges finding Blakely inapplicable to the federal guidelines were appointed by Republican Presidents.

Third, let me highlight that, no matter what one thinks about Blakely and its applicability to the federal guidelines, the basic facts of Hammoud's sentencing have to give one pause. As Judge Motz rightly stresses at the start of her dissent, Hammoud's sentence without reliance on facts found by the judge by a preponderance would have been 57 months. But judicial fact-finding required under the federal guidelines led the district judge to increase Hammoud's sentence of less than 5 years to a sentence of 155 years!

September 9, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Appellate Courts | Permalink | Comments (0) | TrackBack

Wednesday, September 08, 2004

The 4th Circuit Speaks!!

Perhaps proving the old saying "be careful what you wish for," my long-standing wish to see what the Fourth Circuit has to say to explain its order in Hammoud has been granted with this 145 pages opinion! No wonder it took a while to write (it will likely take a while just to download it). Here is the complicated line up:

Chief Judge Wilkins wrote the opinion, in which Judges Wilkinson, Niemeyer, Williams, Traxler, King, Shedd, and Duncan joined and in which Judge Widener joined as to all except Part VII.C.

Judge Wilkinson wrote a concurring opinion. Judge Shedd wrote a concurring opinion. Judge Widener wrote a concurring and dissenting opinion. Judge Motz wrote a dissenting opinion, in which Judges Michael and Gregory joined. Judge Gregory wrote a dissenting opinion.


Analysis to follow late tonight.
Download Hammoud.pdf

September 8, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Blakely back in the headlines

After an interesting hiatus in media coverage, the reporters are back on the Blakely story. And today we get interesting views on divergent efforts to handle federal sentencings until greater guidance on the guidelines' constitutionality comes from the Supreme Court.

Specifically, this article from Indiana provides more background on ND Indiana Chief Judge Robert Miller's decision to deny the local US Attorney's motion seeking to delay all sentencings. And this editorial from the Munster Times praises Judge Miller's decision saying "justice should not be delayed."

But then this article reports on Mississippi US District Judge David Bramlette's decision to continue all of his federal sentencing cases "until the Supreme Court has given some guidance on Blakely." And this article, while suggesting that New Jersey US District Judge Anne E. Thompson may delay the sentencing of a former financial advisor Alexis Arlett, canvasses different perspectives on this period of Blakely uncertainty and notes that "for Arlett's victims, any more delay is likely to be met with skepticism."

Meanwhile, this article discusses more broadly the post-Blakely challenges for federal prosecutors in Pennsylvania, and this article details how state prosecutors in Washington are struggling with the Blakely aftermath. And this article notes how Blakely might have an impact on the upcoming federal sentencing of Frank Quattrone, the investment banker convicted of obstructing a government probe.

In addition, new commentary on Blakely, Booker and Fanfan can be found on Findlaw, which has thoughtful pieces by Professor Vikram Amar and commentator Ed Lazarus. And though Benjamin Wittes' article on Blakely for the October 2004 issue of The Atlantic Monthly requires a subscription to retrieve on-line, here you can see a snippet of the article and a contributor's quote that Blakely is "the single most irresponsible decision in the modern history of the Supreme Court."

September 8, 2004 in Applicability of Blakely to FSG | Permalink | Comments (0) | TrackBack

Monday, September 06, 2004

Pulp Fiction

In addition to being a great movie worthy of great web analysis, pulp fiction is a term for a type of literature where selections of fictional short stories are printed in a bulk magazine for distribution. Thus, it makes a great label for the stories to be found in some of the Booker and Fanfan briefs filed in the Supreme Court last week. Though the deftly written briefs submitted by the SG and USSC do not make misrepresentations, the briefs certainly suggest (at least) five pulp fictions that merit focused examination:

Pulp Fiction 1: The US Sentencing Commission is a truly independent agency in which judges make sentencing rules for themselves. As discussed here and here, the USSC both in design and in operation is far more like, in Justice Scalia's memorable phrase, a "junior-varsity Congress" than like a Judicial Branch coach. If the federal sentencing guidelines were written by the Judicial Conference or developed through a true common-law process, the claim for distinct constitutional status might be more plausible. But the SG concedes at pp. 24-25, as it must, that Congressional control over the USSC is considerable. And, Judge Kathleen Cardone recently called "the proposition that the existing Guidelines, which bind a sentencing court to procedures on peril of reversal, are no more than a court rule guiding a judge through sentencing" is "a legal fiction of the highest order" (details here).

PulpfictionPulp Fiction 2: The federal guidelines merely "channel" or "guide" judicial discretion. The SG and USSC briefs assert repeatedly that the federal guidelines merely guide or "channel judicial discretion." See, e.g., SG Brief at 22; USSC Brief at 15. But of course, as many judges and observers have highlighted, the federal guidelines are guidelines in name only. They are binding legal authority which, in the calculation of sentencing ranges, directly mandate what facts must be considered by judges and also how those facts must be considered. No matter how thoughtful or reasoned, a judge who seeks to exercise her discretion in any manner that does strictly follow the guidelines' "guidance" will be reversed.

Pulp Fiction 3: No parts of the federal guidelines are statutory. Only in a footnote does the SG concede that Congress directly amended the guidelines through the PROTECT Act, and the SG's brief does not explain the potential impact of that reality on the assertion that the Blakely is inapplicable to the federal guidelines because they "are the product of ... a body in the Judicial Branch." And, of course, Congress' direct changes to the guidelines is but one part of the PROTECT Act's alternation of federal sentencing to make the guidelines even more "legislative" and less "judicial."

Pulp Fiction 4: The SRA mandates, and effective guideline reform requires, lax procedures at sentencing. As discussed here and here, the briefs intimate that the success of federal sentencing reform depends upon sentencing judges being able to find many facts by a preponderance of the evidence. But, as many state systems have shown, effective guideline reform does not require complex judicial fact-finding of uncharged "relevant conduct." Moreover, as the USSC brief reveals, the federal guidelines' emphasis on judicial fact-finding of uncharged conduct comes as a result of (highly questionable) choices made by the original US Sentencing Commission, it was not mandated by the provisions of the Sentencing Reform Act. Indeed, the USSC could have devised guidelines from the outset which would have been fully compliant with the rule announced in Blakely — and such a system likely would have been more successful and better received than the current federal guideline system.

Pulp Fiction 5: The issues discussed above matter in the application of Blakely's rule. In the end, the briefs submitted in an effort to sustain the federal sentencing system are all staging Hamlet without the prince. Though pragmatic concerns about applying Blakely to federal sentencing are stressed, lacking in all the briefs is a truly principled argument that defendants should not have a right to a jury find beyond a reasonable doubt sentence-enhancing facts.

September 6, 2004 in Applicability of Blakely to FSG | Permalink | Comments (4) | TrackBack

Blakely, federalism, retroactivity and pragmatism

As I noted before here, it is significant and telling that no states have filed briefs in support of the federal government's position in Booker and Fanfan. And upon re-reading the briefs seeking to distinguish the federal system from the rule in Blakely, I was struck particularly by the federalism ironies in this chapter of sentencing reform and also by how the SG's arguments may sell out the states on the important question of Blakely's retroactivity. Let me explain:

1. The federalism ironies. Thoughtful observers of modern sentencing reform — from the ABA in its Standards for Criminal Justice to leading academics (see, e.g., Michael Tonry, Sentencing Matters (1996), Richard Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Fed. Sent. Rep. 69 (1999)) — consistently report that state sentencing reform efforts have generally been successful while federal efforts have not. In Professor Tonry's words, "Few outside the federal commission would disagree that the federal guidelines have been a disaster [while] state guidelines [have] turned out ... surprisingly well." Sentencing Matters at pp. 9-13.

Yet now the SG and USSC are arguing that the distinctive features of the federal system — e.g., that the federal guidelines are (mostly) written by a (mostly ineffectual) commission and that they are (extremely) complicated and require punishment for uncharged conduct — should exempt the federal guidelines from the constitutional rule articulated in Blakely. The first irony is that highly questionable legal distinctions are being made in an effort to "save" perhaps the only guideline system that does not deserve saving. The deeper federalism irony is that arguments for a "federal exemption" to the Blakely rule are being made to a Rehnquist Court that has sought to reinvigorate federalism concepts by exempting states from federal legal burdens.

2. The states' retroactivity problem. Inherent to the SG's argument that Blakely does not apply to the federal guidelines is the assertion that Blakely was just an application of the Apprendi rule. See SG Brief at 18 ("Blakely thus applied the rule of Apprendi"); see also USSC Brief at 18-19. In other words, to exempt the federal guidelines from Blakely, the Supreme Court would essentially have to hold that Blakely was not a new rule, just an application of the rule announced in Apprendi. But so holding would then seem to require states to apply the (not-new) Blakely rule to all convictions not yet final when Apprendi was decided in June 2000.

In other words, the argument the SG is making in an effort to "save" the current federal sentencing system (which, by most accounts, is not worth saving) could have the effect of destroying at least four years of past state sentencing outcomes. Following the SG's arguments to its logical conclusion entails that the argument for exempting the federal guidelines from Blakely is not pragmatic at all, since pragmatically speaking such a ruling will create many more headaches and problems for state sentencing systems than it might save for federal sentencing. Thus, despite my earlier suggestion here that the federal debate over Blakely is a dispute between principle and pragmatism, I now realize that both principle and pragmatism support the application of Blakely to the federal system.

September 6, 2004 in Applicability of Blakely to FSG, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Great brief, wrong case: the three Senators' brief

In comments, Thomas Yerbich quite succinctly summarizes the amicus brief filed by US Senators Orrin G. Hatch, Edward M. Kennedy and Dianne Feinstein (available here):

The Senators' amicus brief provides an excellent recap of the history of the Sentencing Reform Act and its intended remedial effect. Notably absent from the Senators' amicus brief is any discussion whatsoever of the Sixth Amendment, in fact it is not even mentioned!

Indeed, I was struck while reading the brief that it would be an extremely effective in a case challenging mandatory minimum sentences or the provisions of the Feeney Amendment. The three Senators' brief stresses that the Sentencing Reform Act of 1984 (SRA) "intended sentencing judges to have flexibility to move a sentence both upward and downward within the applicable guidelines range based on an individualized consideration of the offender and his offense and, in unusual cases, to depart upward or downward outside of the guidelines range." Yet mandatory minimums and the Feeney Amendment do far more to undermine this intended "flexibility" and "individualized consideration" than would a holding in Booker and Fanfan that defendants have a right to have proven beyond a reasonable doubt facts requiring enhanced sentences.

Of course, Justices Kennedy and Breyer both appreciate that mandatory minimums undermine the laudable goals of the SRA. Justice Kennedy in his Koon decision stressed the importance of judicial departure authority within the SRA, and he has long assailed mandatory minimums as "unwise and unjust." (See, most recently, this important speech to the ABA last year.) Similarly, Justice Breyer has long lamented the impact of mandatory minimum statutes on the operation of the guidelines system he helped create:

[S]tatutory mandatory sentences prevent the Commission from carrying out its basic, congressionally mandated task: the development, in part through research, of a rational, coherent set of punishments.... Every system, after all, needs some kind of escape valve for unusual cases.... For this reason, the Guideline system is a stronger, more effective sentencing system in practice.

In sum, Congress, in simultaneously requiring Guideline sentencing and mandatory minimum sentencing, is riding two different horses. And those horses, in terms of coherence, fairness, and effectiveness, are traveling in opposite directions. [In my view, Congress should] abolish mandatory minimums altogether.


Speech of Justice Stephen Breyer, Federal Sentencing Guidelines Revisited (Nov. 18, 1998), reprinted at 11 Fed. Sent. Rep. 180, 184-85 (1999). Indeed, Senator Orrin Hatch himself has long been on record noting the major faults of mandatory sentences and calling for a complete reexamination of the issue. See Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 Wake Forest L. Rev. 185 (1993).

In other words, as I have stressed in my own writings, the SRA was a great piece of legislation, but the federal sentencing system in practice has not in fact achieved its laudable goals. That is why I have suggested here that there is a strong case to be made that applying Blakely to the federal guidelines would in fact help give effect to the intent of Congress in enacting the SRA.

The three Senators' brief does not even mention the Sixth Amendment perhaps because it hard to argue that respecting defendants' rights to have facts proven to a jury beyond a reasonable doubt itself undermines the goals of sentencing reform. Of course, Justice Scalia and four other Justices obviously understand this when they stress that Blakely "is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment." And these realities in part explain why I have speculated here that Justices Kennedy and Breyer may join the "Blakely five" before any Justice in that group shrinks away from carrying the Blakely principle to its logical conclusion.

September 6, 2004 in Applicability of Blakely to FSG, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, September 05, 2004

When did Judge Martin enter the Bizarro World?

This weekend I have had the chance to review the briefs filed in the Supreme Court last week in the Booker and Fanfan cases. Especially when reading arguments that Blakely should not apply to the federal guidelines, I am struck by how out of touch with reality the briefs seem to be. The briefs describe not the current federal guidelines system, but rather an idealized federal sentencing system — a system which could have come to pass after the enactment of the Sentencing Reform Act, but which does not really exist now. See generally A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stanford Law & Policy Review 93 (1999).

In subsequent posts, I hope to highlight the fairy-tale nature of parts of the SG and USSC briefs, but in this space I must first wonder out loud about the amici curiae brief filed by former US District Judge John Martin on behalf of an "ad hoc group of former federal judges." The brief itself, as well as some insightful reader comments about its "Alice-in-Wonderland quality," can be found here.

bizarro_cover As I was reading this brief, I could not help but think of the question that is the title of this post: "When did Judge Martin enter the Bizarro World?" As is well-known to true Seinfeld fans, the Bizarro World is a place inhabited by imperfect duplicates of Superman and his friends who do everything backwards. (I have uploaded the cover of this comic classic, and here is a link with helpful background on the basic bizarro concept and here is a link with a lot more about the place of Bizarro in Superman lore.)

For followers of federal sentencing, former US District Judge Martin has been something of a "Man of Steel" for his courageous decision to relinquish his lifetime appointment in part, he said, to protest the unjust nature of the federal sentencing process. In this widely discussed New York Times Op-ed entitled "Let Judges Do Their Jobs" (published exactly a year to the day before Blakely was handed down), Judge Martin explained that he was resigning from the federal bench because "Congress has tried to micromanage the work of the commission and has undermined its efforts to provide judges with some discretion in sentencing or to ameliorate excessively harsh terms." Judge Martin concluded his astute criticisms of federal sentencing by saying that "I never thought that I would leave the federal bench [but] I no longer want to be part of our unjust criminal justice system."

Similarly, this report of Judge Martin's remarks at the ABA Kennedy Commission hearings highlights some of the criticisms of federal sentencing he has been sharing with audiences around the country for the last year:

John Martin ... said that a system that does not have a departure rate of "25 to 30 percent cannot do justice." Absent appropriate judicial discretion to depart from the guidelines, federal sentencing is currently imposing sentences that are too harsh, Martin argued.... Martin criticized the system for forcing judges to impose "incredibly harsh sentences" without giving them the ability to properly differentiate between offenders.

But now — apparently after a trip to the Bizarro World (or should I say the Blakely World) — Judge Martin and others assert that federal judges have "broad judicial discretion" because the federal guidelines "substantially preserve a court's sentencing discretion" in a system "more analogous to the traditional indeterminate scheme" than to the "determinate statutory scheme at issue in Blakely." Martin Brief at pp. 5-6, 9-10. Perhaps in the Bizarro World it is true, as this brief claims, that the federal guidelines "more closely resemble the regime at issue in Williams than in Blakely," id. at 14, but most federal sentencing observers and participants likely would not consider this a fair description of the real world of federal sentencing today.

Also, apparently in the Bizarro World of federal sentencing the Feeney Amendment was just an odd footnote to the guidelines' preservation of "substantial judicial discretion," and the "24% departure rate in the Second Circuit" is more representative of federal sentencing realities than the "6% rate of departure in the Fourth Circuit." See id. at 13-22. But, even these pre-Feeney Amendment statistics show that the majority of federal circuits had a departure rate under 10% in fiscal year 2002. And, of course, the Feeney Amendment further constrained judicial discretion to depart, and it reversed legislatively the Supreme Court's Koon decision emphasized throughout the Martin brief. Moreover, if federal sentencing in the Second Circuit is sound because "judicial discretion over sentencing remains both broad and meaningful in those circuits that have recognized the full extent to the Guidelines' departure power," id. at 22, why did Judge Martin need to resign? He was a judge in the Southern District of New York, which is part of the Second Circuit.

Gosh knows many wish that federal sentencing was in fact like Judge Martin and his colleagues describe in their brief, and I laud the effort to emphasize the importance of substantial judicial discretion in a well-functioning sentencing system. Indeed, in my own writings I have stressed that an improved departure mechanism (and the eliminatation of many mandatory minimum sentences) could remedy much of what ails federal sentencing. See Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000).

But, as too many judges and defendants and defense attorneys know too well, federal sentencing now takes place in the Feeney World, not in the Bizarro World. Thus, it is hard to fully understand why Judge Martin is writing so forcefully in defense of a system that he himself felt he had to quit because it was unjust.

September 5, 2004 in Applicability of Blakely to FSG | Permalink | Comments (1) | TrackBack

Saturday, September 04, 2004

Texas-sized Blakely analysis

In a wonderful and thorough analysis of issues that now confront the Supreme Court in Booker and Fanfan, US District Judge Kathleen Cardone of the Western District of Texas does not let the Fifth Circuit's ruling in US v. Peneiro, 377 F.3d 464 (5th Cir. 2004), keep her from opining on the true meaning of Blakely for federal sentencing law. In US v. Chapparro, 2004 U.S. Dist. LEXIS 17531 (W.D. Tex. Sept. 1, 2004), Judge Cardone recognizes that "Pineiro is undisputedly the law of this Circuit," but then offers a stunningly detailed exegesis and analysis of Blakely issues "in the event the Court of Appeals elects to reconsider its holding in Pineiro."

Though a very long opinion, Chapparro is worth a thorough and full read because it first thoughtfully discusses "the structure and application of the Guidelines [and] relevant Supreme Court precedent leading up to the Blakely decision," and then turns to "a structural comparison between the federal guidelines and the guidelines before the Court in Blakely [in order to] address the significance, if any, of the fact that the federal guidelines are promulgated by an independent agency whereas the guidelines before the Court in Blakely are promulgated by a legislature."

Because Judge Cardone's analysis is so rich, I cannot do it justice with a brief summary. But these key passages I think capture the most important highlights:

Given the past characterization of the Guidelines as binding on judges rather than suggestive, it is difficult to ascertain a principled reason by which an agency delegated lawmaking authority restrained only by a Congressional right of refusal would be permitted to effect the substantive rights of defendants without offending the Constitution while Congressional action of the exact same nature would offend the Constitution. Such an interpretation reduces the right to jury trial to a "mere procedural formality," Blakely, 124 S. Ct. at 2538, in which the essential question becomes not the right itself but rather the source of the procedure. The right to jury trial could be vitiated by simply transferring lawmaking authority to an agency....

[I]t would therefore take a legal fiction of the highest order embracing the proposition that the existing Guidelines, which bind a sentencing court to procedures on peril of reversal, are no more than a court rule guiding a judge through sentencing and therefore constitute a form of agreement with the Commission by which discretion is ceded in exchange for predictability. Only such a fabrication would explain why an offender has rights under statutory guidelines and lacks the same rights under a regulatory guideline.

September 4, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Friday, September 03, 2004

Complete SG Brief in Booker and Fanfan

A number of my savvy readers noticed that the Government's brief in Booker and Fanfan posted earlier this week lacked the table of contents and all those other introductory pages. Thanks to another FOB ("friend of blog"), I now have a complete version of this important document. It can be downloaded here:
Download complete_sg_bookerfanfan_brief.pdf

September 3, 2004 in Applicability of Blakely to FSG, Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Thursday, September 02, 2004

Swing(ing) Justices?

I have a lot more to say about all the Booker and Fanfan briefs filed yesterday (available here and here), but a thoughtful reader suggested an interesting idea/question to keep in mind when reading (or re-reading) the SG's brief. The idea/question is: "Who is the government attempting to peel off from the Blakely majority?"

As I have been repeatedly saying to the students in my sentencing seminar, there is an interesting history and story connected to each of the nine Justices in the whole Apprendi/Blakely line of cases. Because of their forceful opinions in a number of cases, it seems unlikely either Justice Stevens or Thomas is likely to shrink from applying Blakely to the federal guidelines.

Some might say the same about Justice Scalia, though the thoughtful reader notes that given Justice Scalia's "break from the pack in Harris and his much-rumored initial dissent in Ring," Justice Scalia might "be looking for ways to cabin the pro-defendant effects of his brightline position." Since Justice Scalia was the swing (silent) vote in Harris, this speculation is sensible. However, I really think Justice Scalia would have written Blakely much differently if he wanted to save the federal system, and I also think he is much too smart to not have realized the seismic impact his broad Blakely language would have on the federal system.

Justices Ginsburg and Souter have said the least "on the record" in this line of cases, though Justice Ginsberg wrote the important Ring decision (which extended Apprendi to capital sentencing and reversed a recent precedent to do so) and Justice Souter wrote the important Jones decision (which first articulated the key language that became the Apprendi rule). In addition, both Justices signed on to Justice Thomas' forceful dissent in Harris.

Finally, I also think it is worthwhile to speculate about whether any of the Blakely dissenters might now "switch teams." My instinct is that Chief Justice Rehnquist and Justice O'Connor would be unlikely to ever play a role in the federal aftershocks of Blakely's "Number 10 earthquake." But Justices Kennedy and Breyer have such a dynamic history in expressing their views about both the doctrines and policies of federal sentencing (consider cases like Koon and the public speeches they've both made about problems with federal sentencing policies and practices). And Justices Kennedy and Breyer have both in cases like Ring and Harris said interesting things about the logic and reach of Apprendi.

Though Justices Kennedy and Breyer obviously did not want to extended Apprendi to guideline sentencing, now that the Blakely earthquake has happened, I think either or both might be more inclined to actively help with post-Blakely clean-up efforts rather than continue complaining about the ground shaking.

September 2, 2004 in Applicability of Blakely to FSG, Blakely in the Supreme Court | Permalink | Comments (1) | TrackBack

Applying Blakely to the federal sentencing guidelines

There is so much to say about the arguments made by the SG in its merits brief (and by the USSC and the former federal judges in their amicus briefs) that "Blakely does not apply to the Federal Sentencing Guidelines." I suspect many posts (and I hope a lot of comments from readers) will over time allow me and others to think through all the aspects and implications of these arguments. For now, I want to make a few very general comments:

1. After Blakely, it is possible and perhaps helpful to set up a dichotomy between statutory structured sentencing systems like Washington's (which now must grant defendants the (waivable) right to a jury trial on any and all facts which raise the effective maximum sentence) and traditional indeterminate sentencing systems (in which judges have enormous and essentially unfettered discretion to consider (or not consider) any and all facts of interest to the sentencing judge). I find it truly remarkable that the SG and USSC are suggesting, and that a group of former federal judges are expressly stating, that the federal sentencing guidelines "more analogous" to a traditional indeterminate sentencing systems than to Washington's structured sentencing system.

2. Though all the briefs make a game effort at arguing that "Blakely does not apply to the Federal Sentencing Guidelines," I saw precious little argument in the briefs that Blakely should not apply to the FSG. I might find the arguments to distinguish the federal system more compelling if I could fully understand what would be so harmful about defendants having a (waivable) right to a jury trial on facts which raise their effective maximum sentence. I understand that there could be great harm in how Congress or others might respond to defendants having such a right. But I am not sure why a court's interpretation of the scope of individual rights can or should be influenced by the (speculated) response of other institutions to those rights.

3. As I discussed at some length in my analysis of the Sixth Circuit's decision in Koch (details here), many of the arguments put forward to distinguish the federal system structurally would be much more compelling if the federal sentencing guidelines were written by the Judicial Conference of the US — as Professor Kate Stith and Judge Jose Cabranes have recommended in their wonderful book Fear of Judging (at p. 159). But, as the SG's brief concedes at pp. 24-25, the USSC both in design and in operation is far more like, in Justice Scalia's words, a "junior-varisty Congress" than like a Judicial Branch coach. Moreover, as Steve Chanenson has so astutely noted in his recent article, Congress' recent passage of the PROTECT Act has constrained and transformed the USSC to make it more like a "traditional" legislative agency and less like a group of judges making sentencing rules for themselves.

September 2, 2004 in Applicability of Blakely to FSG | Permalink | Comments (1) | TrackBack