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July 20, 2004

Institutional challenges for Blakely clean-up efforts

The state of federal sentencing in the post-Blakely world is, by all accounts, in some form of chaos, turmoil, crisis or anarchy. Fortunately, the latest word from this New York Times article and the folks at the SCOTUSBlog is that acting SG Paul Clement will be pushing the Supreme Court to consider both US v. Fanfan (background here) and US v. Booker (background here), and asking the High Court to act on an expedited basis.

Unfortunately, a cert. grant by the Supreme Court in these cases would not magically stop the madness. I have advocated for rapid Supreme Court action (see here and here), because I think such action is a necessary pre-cursor to more effective and sustained efforts by other institutions to reform federal sentencing procedures and practices. But, even on a expedited schedule, it is unlikely that we will have a decision from the Supreme Court before it's time to go trick-or-treating. Moreover, as detailed here, in part because so many uncertainties and questions surround Blakely, there are reasons to fear that the Supreme Court is too divided on these issues to provide quick or clear guidance on these matters.

For these and perhaps other reasons, Professor Frank Bowman has not given up hope for a legislative fix ASAP. As previously discussed, Professor Bowman suggested, in a memo sent to the US Sentencing Commission three days after Blakely was decided, an ingenious Blakely-fix that could retain the basic elements of the existing federal sentencing guidelines. And over the past weekend, Professor Bowman put pen to paper again to produce another very thoughtful memo to the USSC in which he argues that "some legislative solution is a desirable response to Blakely." In so doing, Professor Bowman says that "part of the reluctance to move forward with an immediate legislative response stems from a failure to map out the most likely consequences."

Frank, in his own wonderfully intricate way, provides in the memo available below a map of likely consequences of different course of action. This mapping effort leads Frank to conclude that the prospects for effective and timely action by the Supreme Court are small, whereas prompt legislative action could bring some order -- especially because, Frank argues, his short-term Blakely-fix could be applied to current cases without significant ex pot facto problems (see pp. 8-9).

Professor Bowman has asked me to share his latest memo along with an invitation to readers to send him responses about the merits of the arguments generally (and the memo's ex post facto analysis in particular). Frank Bowman can be reached at frbowman@iupui.edu.

Download bowman_716_to_ussc_on_blakely.doc

July 20, 2004 at 01:48 AM | Permalink


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Here is an e-mail I have sent to Professor Bowman in response to his request for comments:

Dear Professor Bowman:

I have read your very intelligent proposal to the Sentencing Commission and I am afraid that, in large part, it is sound and may be adopted. I want to add my voice to the chorus of those (I hope right-thinking) people who see Blakely as an incredible opportunity to undo a failed 17-year experiment in taming judicial discretion and who fear that a quick fix will bring the current climate of judicial experimentation to a jarring halt. Nevertheless, I write specifically to point out what seems to be an critical assumption masquerading as a fact in your proposal.

While you concede that judicial experimentation is generally a good thing, the primary impetus for a quick legislative fix is your claim that "the sky is falling," that we are in "a long period of crippling turmoil" and that we would be "leaving the federal criminal justice system in chaos for many months" if there isn't a quick fix. You do not elaborate on your disagreement with the opinions of practitioners like Judge Sessions, who claim the system is not in crisis. My concern is that your position is based only on anecdotal information or that it is a mistaken exaggeration of what is actually happening "out there."

I am a federal defense lawyer in the Southern and Eastern Districts of New York. I am working diligently with prosecutors and judges to work through challenges that Blakely has presented. My own experience doesn't suggest that the system is in crisis or that we need immediate help from above. To the contrary, I see intelligent and thoughtful people who have been asked to apply their considerable skills and practical experience to craft new approaches to the use of traditional factors in a traditional field of sentencing. I don't know which system will ultimately evolve as the right "solution" but I am confident one will or that, with a little time, the choice will be framed thoughtfully for Supreme Court consideration.

If you are going to press the need for a quick legislative fix without considered study on your claim that it is needed to resolve a supposed "crisis," I'd think you would have to provide solid support for that position or acknowledge that it is only a subjective opinion based on anectodal information. Without such transparency, I'm afraid that politicians--who have no way of determining the level of crisis in the short term--will defer to your assessment as an academic on the assumption that you have solid research to back up your claim.

Assuming your information is no better than mine (or that of Judge Sessions), however, I'd think a necessary part of your proposal would be a recommendation to the Sentencing Commission to conduct some prompt and threshold research through its current reporting mechanism to determine whether the system really is in "crisis" and whether a quick fix is actually necessary.

In closing, I'd like to add that even if it could fairly be described in such terms, any relatively short-term damage would be an acceptable price to pay to avoid rescuing the current guidelines system in your slightly-modified format. Considering the political difficulty of reforming mandatory sentencing schemes in a way that might be deemed to "favor" defendants, this would surely be the long-term result of your proposal if adopted. The Blakely decision has created a rare opening for sensible reform by those I believe should really be crafting a sentencing system--judges--which would certainly close just as abruptly as it opened if a quick fix were adopted.

No defendant is worse off in the current climate than he or she was under the guidelines; society is no worse off than it was prior to adoption of the guidelines. While many feel there were flaws in both systems, the problems they engendered could not plausibly have been described as "crises." After all, Congress took ten years to craft a system to address the problems in the pre-guidelines era and the guidelines themselves have now remained in place for more than fifteen years. I question whether the mere fact that these two systems are currently in place in one form or another can fairly be described as a "crisis."

Admittedly, the current uncertainty creates the potential for undesirable short-term disparity. Some defendants may receive sentences that may be considered to have been too lenient or too severe when analyzed under the eventual "winning" approach. If those who received erroneously severe sentences were unable to correct them through appeals or collateral applications, Congress could step in and pass legislation to provide necessary relief.

Those who turn out to have received an erroneous "windfall" would likely not have their sentences increased. In my opinion, that's a small price to pay to keep an experiment going that might create some sense out of the failure of a system that was universally condemned as unfair.


Alexander E. Eisemann

Posted by: Alex E. | Jul 20, 2004 3:21:34 PM

Mr. Eisemann:

Thank you for your long and thoughtful note. Although time precludes me from making a reply either as long or as thoughtful, two points occur to me.

First, you are correct that my or anyone else’s perception of a system in crisis is necessarily subjective. Thus, your suggestion of some sort of empirical study of the situation validating its “crisisness” seems at best a bit impractical. That said, a situation that has produced a four-way circuit split in less than three weeks (maybe 3 1/2, if the 6th Circuit has now gone en banc on its prior panel opinion), and at least one district with judges ruling four different ways, looks pretty crisis-like to me. And mine is not the perspective of some ivory tower academic, but of a trial lawyer who spent nearly thirteen years as a prosecutor and several more doing defense work. The simple truth is that, the more you think about this situation and try to figure out what to do in the myriad contexts Blakely affects, the more you realize that there are no right answers now, and that even a rapid Supreme Court opinion will very probably only slightly reduce the number of unsettled questions.

As for your own perception of the absence of crisis, it seems to me to rest in some measure on the same fallacy that underlay the remarks of some of the official witnesses last week before the Senate Judiciary Committee – the notion that because intelligent people are working in a sensible way to solve a problem that the problem doesn’t constitute a crisis. You are correct that lots of smart folks are doing the best they can, and they’ll work out a variety of working accommodations if forced to. The same would be true with the aftermath of a hurricane or an earthquake. But intelligent local responses to massive dislocation don’t make the dislocation less massive. Nor do they necessarily reduce the need for some intervention more comprehensive than local improvisation.

Second, I take the real point of your argument to be that the proposal I have made would do its job too well. That it would restore a system you (and many others) don’t like and that you (and many others including myself) would like to see reformed. That’s a valid worry, one I have myself. Rapid enactment of the proposal I’ve made does risk clamping the lid back on a system that needs airing out. As I’ve argued elsewhere, I think you may overestimate the transience of the political moment. I also think you may undervalue the importance of a vigorous federal prosecution effort to the country at large. Change is coming. I just prefer the transition to change to be more orderly.

Frank O. Bowman, III

M. Dale Palmer Professor of Law

Indiana University School of Law - Indianapolis

530 West New York St.

Indianapolis, IN 46202-3225


317-278-3326 (fax)

Posted by: Frank Bowman | Jul 20, 2004 5:10:33 PM

interesting materials!!!!!

Posted by: tom stagg | Jul 20, 2004 6:14:59 PM

Professor Bowman:

Thank you for your quick (and entirely thoughtful!) reply. Two quick reactions:

First, doesn't your illustration of the crisis actually prove the opposite? The fact that the system is quickly generating myriad approaches to the problem suggests that it is healthy and working towards shaking out the most well-crafted solution.

I'm still not sure what empirically constitutes a "crisis" in this type of circumstance or how you are defining it. If it's paralysis, that certainly isn't occurring here. If it's temporary diversity, isn't that what the Circuit approach is supposed to foster? The only definition that seems to fit is widespread uncertainty, but why is that a crisis? Defendants are still being sentenced as judges do the best they can, just as they were before the guidelines.

Second, you are correct that my real fear is that your solution is too good, too easy for Congress to adopt to eliminate the pesky problem created by this activist Supreme Court. Maybe I'm too jaded but I haven't seen any appetite for thoughtful political dialogue on sentencing for quite some time. I do fear losing the moment but I hope you're right and that necessary change will come in any climate.

Posted by: Alex E. | Jul 20, 2004 6:27:06 PM

..."If those who received erroneously severe sentences were unable to correct them through appeals or collateral applications, Congress could step in and pass legislation to provide necessary relief."...

Not to be unduly harsh, but what color is the sky in your world? Prisons are full of men, women, moms, dads, daughters and sons who's sentences were illegally enhanced because of self serving politicians knee jerk reactions to get tough on crime and get reelected. They tied the judges' hands and allowed heresay and rumors to triple sentences. The system has been broken for almost 2 decades now. Our prisons are exploding with people who's lives were ruined by so-called relevant enhancements found by a preponderence of the evidence. Have no doubt, the system is experiencing a crisis. But it's not new. It has depleted out society of valuable talent for quite a while now.

And as to "Congress could step in and pass legislation to provide necessary relief", for those who got the royal screw, that will absolutely never happen. It's political suicide.

Posted by: bob r | Jul 21, 2004 12:32:19 AM


I think you missed the point of what I was saying. I'm a realist and have no doubt that Professor Bowman's proposal will get (read is getting) serious consideration in Congress. To support my (and others) alternative approach--do nothing and let the lower courts work it out and then await Supreme Court action--one has to address all the hypothetical problems that critics will say could conceivably flow from it.

One that I raised myself is that if the lower courts are allowed to continue to try to shape a post-Blakely world, we may end up with sentencing disparity for a while. Frankly, I'd be happier with some disparity than to have every defendant potentially punished harshly and unfairly. If consistency rather than justice is the primary goal for a majority in Congress, however--as has been the case for the past 17 years--any proposal has to address criticism that we'd lose some consistency if we didn't implement a legislative quick fix.

Do I think Congress would ever actually provide such relief? No; I am a realist. Do I think noting the possibility of remedial legislation is a valid response to possible criticism about the disparity "problem" that might stem from my approach? Yes. It's no more unrealistic, for example, than sentencing-guidelines advocates who claim that mandatory guidelines result in fair sentences across the board. Don't forget that consistency has been one of the primary forces behind creation and maintenance of the guidelines, so any proposal that threatens to reduce it better have answers ready for criticism based on that effect.

By the way, I assume that you, like I (and perhaps Professor Bowman himself, although I wouldn't presume to speak for him), would prefer the old indeterminate sentencing scheme, or a true "guidelines" scheme over the mandatory scheme we had prior to June 24. If we got our wish, lots of defendants would still receive sentences we consider unduly harsh simply because of the individual beliefs of the sentencing judges. Those sentences will likely not receive meaningful review on appeal and there would also be virtually no chance of their obtaining Congressional relief. So, your observations would seem to be true no matter which discretionary scheme might ultimately prevail.

Accordingly, I'm not sure if your comments were meant to be a vote against my approach but I suspect they weren't. Instead, they strike me as understandable venting by someone (like me) who's had to live with the routine imposition of cruel sentences mandated by a flawed system in a political climate that couldn't and wouldn't do anything about it (save for the welcome creation of safety-valve relief).

Assuming that's all it is, you're preaching to the choir because I'm on your side. If your comments are intended to support some other approach, however, I'd be interested in hearing about it and on your views of whether it would eliminate individual disparity and unfairness.

Alex Eisemann

Posted by: Alex E. | Jul 21, 2004 10:50:09 AM

I don't know which system will ultimately evolve as the right "solution" but I am confident one will or that, with a little time, the choice will be framed thoughtfully for Supreme Court consideration.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:24:16 AM

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