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August 19, 2004

Principle versus pragmatism

In another report from his time at the NASC's national meeting, Ron Wright provides the following "News from the USSC":

Various staff members of the U.S. Sentencing Commission now believe that it is most likely the Supreme Court will uphold the guidelines. Nevertheless, they are planning for legislative options in the event that the guidelines are struck down. Part of that planning will be based on a comprehensive and empirically rigorous 15-Year Review of the current guideline system. The review, prepared by the staff and now being considered for possible adoption by the commissioners, tries to identify the strong and weak points of the guidelines in carrying out the purposes of the 1984 Sentencing Reform Act.

Participants at the conference were all speculating about the likely shape of any new legislation to reshape federal sentencing. The predictions were all over the map in some respects, but there was powerful consensus about one thing. The final product, in the view of most conference participants, would leave prosecutors with at least as much power as they held before Blakely, and would leave judges and defense attorneys with at least as little power.

Though quite pleased to hear the USSC is working on a Plan B, I am troubled by the idea that the USSC staff thought it likely the High Court would uphold the guidelines in the face of Blakely. In accord with Judge Cassell in Croxford and Judge Posner in Booker and the Ninth Circuit in Ameline and so many district court opinions, I cannot find a principled, jurisprudentially sound way to avoid the conclusion that Blakely renders at least part of the federal guidelines unconstitutional.

I can, however, appreciate many powerful pragmatic arguments for not applying Blakely to the guidelines because of the havoc likely to result from declaring unconstitutional a long-in-development and long-in-operation federal sentencing scheme. Indeed, I recently received a copy of a brief in which the government colorfully describes the consequences of applying Blakely to the federal guidelines (I have added the picture which merits a click to make larger):


To upset that understanding now [that judges can find facts by a preponderance at sentencing] would wreak havoc on the federal criminal justice system. Godzilla rampaging through Tokyo during a level 10 (on the Richter scale) earthquake could not wreak more havoc.... Pandemonium would reign supreme.

Staff members at the USSC apparently believe that the Supreme Court, following what is now a majority of circuit courts, will be moved more by pragmatism than principle to uphold the federal guidelines and reign in Godzilla, ... I mean Blakely. Though I make no predictions about the likely outcome in the Supreme Court, I do think Booker and Fanfan place the tension between principle and pragmatism in stark relief. Indeed, even the Blakely decision itself highlighted this dynamic: the dissenters really did not have any strong principled arguments against the majority's holding, but they did present quite powerful (though ultimately unsuccessful) pragmatic arguments.

August 19, 2004 at 08:21 AM | Permalink


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i'm an assistant professor at Temple, who's new at blog responses, so please pardon if these questions are out of line. (i'm extremely grateful for your fine work, by the way.) Do you happen to know if the USSC staff proffered any analysis to accompany their conclusion? (Perhaps, as elsewhere, "explanatory opinions are in the mail . . .") Also, is there any written memorial of the USSC's views on the subject? Perhaps the draft report serves that function?


Posted by: Craig Green | Aug 19, 2004 10:03:32 AM

Perhaps we're all a bit blinded by the strength of our convictions, but I don't understand why you say you see no principled way to distinguish Blakely. To me, having written several briefs trying to do just that, it seems obvious that the Guidelines are an exercise of "the judicial power" left untrammelled by Blakely.

But I'm not really writing to argue about that. I'm more interested in knowing--what principle *explains* Blakely? It seems to me the reason the dissenters are so focused on what you call "pragmatic" arguments is that they can't find any intelligible principle in the majority position, other than "the founders wrote this rule, and this bright line is the only way to make the rule workable."

I suppose this does, actually, dovetail with my first point. Perhaps the claim that the Guidelines are formulated by the judiciary seems formalistic. But so does Blakely. And, until someone gives a satisfying account of what principle Blakely serves, I don't think it will be possible to give a satisfying distinction.

Posted by: a government lawyer | Aug 19, 2004 10:18:20 AM

How about, government lawyer, the principle that we should not impose additional punishment on individuals without proving their guilt beyond a reasonable doubt? Is Winship principled or unprincipled? If it is principled, then I think the same principle might have some problems with Hammoud being given 150 more years of imprisonment based on questionable facts never considered by a jury.

Of course, you could respond "what about Williams"? I think Williams was (perhaps) principled in a world of medical model sentencing without guidelines. In our modern guideline world, Blakely seems more pricipled than decisions like Watts and Edwards.

Thanks for speaking up, government lawyer. Keep contributing, please.

Posted by: Doug B. | Aug 19, 2004 11:58:25 AM

I hestiate to post, but at the same time I am compiled to post. I'm not a lawyer, professor, or politican so my words will not be eloquent or scholarly. I am a wife of federal prisoner, so my words/view will be personal and emotional.

My husband and I are spending two extra years in prison for something he was not charged with and the jury did not convict him of. I say my husband and I, because he may be spending time behind bars, but I spend my time behind invisible bars.

The Federal Guidelines have always been unconstitutional. The issue of it causing chaos in the courts, after 20 years, being considered as reason to not find it unconstitional brings me to tears. Because it is nothing compared to the chaos and confusion it has caused the families of this great nation in the last 20 years.

Unconstitutional is unconstitutional! The fathers of this nation turn over in their graves 20 years ago and I only hope they get the chance to rest in peace again.

Sorry for the irregular post. I hope I did not offend or misuse your blog in any way.

Posted by: Cheryl | Aug 19, 2004 1:13:49 PM

Perhaps the belief of USSC staff members is more wishful thinking that a belief based on a realisitic assessment of Blakely. With all that the USSC has vested in the Guidelines, the prospect of the Guidelines being dismantled must be troubling to USSC staff members, to say the least.

However, as noted in Prof. Alschulet's article that was recently posted on this blog, any effort to honestly say the Guidelines are not impacted by Blakely is laughable.

Presumably, the Supreme Court will take an intellectually honest approach to deciding Booker and Fanfan -- an approach unlike that advanced above by "government lawyer."

Posted by: Victor Haltom | Aug 19, 2004 2:17:15 PM

"Intellectual honesty" might seem strong for an issue where folks hopefully can (and judges do) disagree. But in any event, i look forward to more info regarding the USSC's views as it becomes available. Thanks again for the super blog, Craig

Posted by: Craig Green | Aug 19, 2004 3:04:38 PM

I agree the guidelines are unconstitutional. I'm not a lawyer but have been working in the legal profession for over 20 years, the last 9 working on criminal matters. I do have a bachelor's degree, however, having studied psychology and political science.

I too have a loved one who is incarcerated for a non-violent crime, but because of "relevant conduct" is ordered to serve 46 additional months on top of a 41-month guideline sentence. For those of you unaware, "relevant conduct" is much of what Blakely is all about. Doing time for something you haven't been convicted of, just something the feds feel should make you do more time.

The guidelines are a travesty of justice and not only violate the 6th amendment as pointed out in Blakely, but the due process clause of the 5th amendment. Something the govt and USSC don't seem to care about.

I have several major issues with the feds and the BOP that I won't bore you with here. Suffice it to say that - bottom line - you shouldn't do time for something of which you have not been convicted.

They are letting the prosecutors set the sentence. That is not their job, that belongs to the judge. A prosecutor should gather evidence and present it--either to a judge or jury, or in a plea offer. He should not be able to discount or ignore evidence to get a plea. He should not be able to coerce a witness. He should not be able to pay a witness (I saw that on WGN news last night--witness got paid $6,000). He should not be able to use another prisoner or two as a witness--period (the feds call it substantial assistance). They only have one thing to gain, a lighter sentence. There are too many who would roll, lying all the way, to get a lighter sentence. Then the prosecutor doesn't have to do his/her job and "prove" the case. Check and see how many really go to trial. (If you do that you get a longer sentence.) (Can't even exercise your right to a trial without being punished.)

These are just a few of the problems I see with the entire system. It nauseates me to see some federal prosecutors getting paid for feeding their egos. I know there are many who are doing a good job and I know there are real criminals out there who need locked up, but this has all gone too far.

And, if you have a federal prosecutor, the FBI and a public defender (paid by the feds) and probation (also a paid federal employee) doing the PSI, who is really looking out for the defendant?

I agree with Cheryl who said she's doing time too. I feel your pain. I appreciate your comments. I too feel like I'm doing time. All of this for something that was not an intentional violation of the law. All of this to feed a prosecutor's ego.

Where did common sense go? Why not adopt the military's idea--KISS (keep it simple stupid). Our laws are all in legalese. The common individual cannot understand them. There are individuals going to prison everyday for violating a law they didn't even realize existed. Many of our laws are created to make criminals out of the average individual. Don't believe me? Wait till the IRS knocks on your door and takes your home for something you forgot on your return. Not all laws are broken intentionally and knowingly. But the law usually says "knew or should have known." That's impossible.

Sorry to get so carried away, but it's part of my coping mechanism.

Thank you Doug B for your comments. I don't want to appear anti-fed, but most would be too if they'd seen what I have in the past few years and most recently this year. It's all very disillusioning.

Thanks for listening and I appreciate the blog's insight and information. Keep it coming.

Posted by: Shelly | Aug 19, 2004 3:40:28 PM

First, I should say I'm grateful for the comments by our non-lawyer participants. I think your voices are important, and I hope whatever the Supreme Court does, you will make yourselves heard by our national (and state) policy makers. For what it's worth, I think the Guidelines have at least made sentencing more transparent, so that when there is unfairness it is easier to see and (hopefully) to correct.

My point about what I see as the empty rationale of Blakely is that it doesn't really have the Winship-like effect Doug B. (and others) are claiming. Blakely still allows, in theory, a 150-year sentence on a minor felony conviction, if Congress wants to come back and write a criminal code that sets unlimited sentencing ranges. Judges could still sentence freely based on relevant conduct findings, or, for that matter, their personal dislike for the defendant's conduct. So, what Blakely really protects is not the power of the jury, but rather the power of the crime-defining legislature.

That is why I believe the distinction between legislatively and judicially-defined sentencing considerations is significant to a meaningful Blakely analysis...and I assure you I am doing my best to be "intellectually honest" when I say so. I remain open to persuasion to the contrary.

Posted by: a government lawyer | Aug 20, 2004 12:14:20 PM

Ah, but Congress would have to do that through a political process. As little comfort as that provides, it's better than the current system where a group of politically insulated members of a sentencing "commission" make difficult policy calls and mandate individual results with little or no accountability. If Congress wants to raise the ceilings, as Government Lawyer (and perhaps Frank Bowman, as well) suggests, so be it. At least there would still be a buffer in the form of judicial discretion. If it wants to raise mandatory minimums as well, or if Blakely requires guidelines enhancements to be treated the same way, there will still be the buffer of a higher standard of proof before jurors and, if they perceive why they are being asked to make these findings, perhaps the added protection of jury nullification.

If Blakely stands for anything, it may be for the principle that sentencing decisions must carry accountability, political or moral. Blakely doesn't specifically say this and Government Lawyer would be correct to point this out. Nevertheless, if one reads between the lines, Blakely may reflect this broader underlying principle.

Personally, I hope it is just an opening salvo in a larger effort to return individual sentencing determinations to those who have defendants before them and to ensure that judges can make rational sentencing decisions when justice requires, just as they did for hundreds of years before legislatures got the idea that they could tie their hands. I've not met any rational government lawyer who didn't agree that the current system leads to absurdly harsh results in at least some cases. Since Government Lawyer must answer to others working at a higher pay scale who may not feel the same way, it certainly isn't his or her responsibility to promote the return of some degree of discretion. Ironically, those with the least amount of political accountability, the Blakely majority, just may force it upon them.

Posted by: Alex E. | Aug 21, 2004 1:59:00 PM

Sentencing decisions must carry accountability? Any increase in a sentence (within the statutory maximum) must be proven beyond a reasonable doubt? Where does it say that in the Constitution?

Blakely represents a paradigm shift, but it's not clear that it's a principled one found in the Constiution (as opposed to the preferences of five Justices).

In the pre- (and perhaps post-) Blakely regime, a federal judge had essentially unlimited discretion to sentence a defendant from probation to the statutory maximum (often 10 or 20 years or life). The judge could rely on anything, including relevant conduct or the defendant's criminal history, to reach that decision. The judge was not required to articulate the basis for the decision, and there was no standard of proof.

When the Guidelines were passed, they were viewed as limiting judicial discretion by systematizing the factors that had been underying sentencing decisions (whether spoken or unspoken).

Over time, many (motivated perhaps by the high guideline ranges for drug crimes and the increasing limitations on downward departures) forgot the vices of the old regime (and there were some), and also the principle that the Guidelines limit discretion. Instead, the Guidelines are increasingly seen as statutory sentencing ranges, instead of systematized limits on discretion.

Going back to the old regime would help defendants (lead to lower sentences) in some cases before some judges -- but would hurt them (leading to higher sentences) in other cases before other judges. It would succeed (at least temporarily) in increasing judicial discretion at the expense of prosecutors and Congress. But it would also invite Congress to create a new system of mandatory minimums (thereby once again limiting judicial discretion).

Posted by: Federal prosectuor | Aug 22, 2004 3:46:39 PM

Federal Prosecutor asks questions that could be posed by anyone claiming strict allegiance to the Framer's original intent--"Sentencing decisions must carry accountability? Any increase in a sentence (within the statutory maximum) must be proven beyond a reasonable doubt? Where does it say that in the Constitution?"

But isn't that a little too narrow a reading of it? For example, it doesn't say that judges should show mercy in sentencing or give due deference to the harm to a victim or the community, yet we regard these as fundamental sentencing responsibilities. Perhaps the Framers thought something so self-evident as the need to be morally accountable for sentences imposed didn't need to be spelled out explicitly.

With respect to the standard of proof necessary to increase sentences "within the statutory maximum," the Framers certainly believed judges had discretion to impose appropriately lenient or harsh sentences. Since there was always the exercise of discretion available, a higher standard of proof than a preponderance wasn't necessary. With respect to consequences about which judges had no discretion--for example, convicting defendants when elements of crimes had been proven--a higher stand, beyond a reasonable doubt, controlled. When legislatures changed the rules and broadened that short list to include mandatory prison sentences for proven facts, the Supreme Court decided it looked more like a traditional "conviction" than a "sentence." Because Winship has constitutional underpinnings (incidentially, not based on any constitutional specificity about burden of proof), the Court concluded the constitution required the same standard of proof for mandatory sentences as it did for mandatory convictions. Under this theory, by the way, Almendarez-Torres will no longer be good law.

Posted by: Alex E. | Aug 23, 2004 9:23:02 AM

and, more importantly, Harris too.

Posted by: Alex E. | Aug 23, 2004 9:49:13 AM

Non-Lawyer- Family of federal mandatory minimum victim- Regardless of whatever the precedence was pre-Blakely, it seems that the Supreme Court can change their position and what was wrong can now be made right. The current system gives prosecutors a sledgehammer in the insanely harsh guidelines- they have the power to determine who and what to charge, they have the power to “negotiate” charges and even to not bring charges in exchange for “substantial assistance” and they have the unlimited resources of the government at their disposal as well – they have the power over a person’s freedom and that is an awesome power - on top of that, all that is needed to get a sentence from 0 to 300 or more months is the “preponderance of the evidence” and the judge is required to rule within the mandatory guidelines or be called to the carpet to face Congress and will also likely be reversed. So explain to me how this system makes sense without the “because it isn’t happening to me” undertones. There have been a lot of “popular” wrongs in our past- We look back and shudder that those accepted wrongs were so fiercely protected by our country’s leaders and the popular sentiment of the day. This is one of those wrongs. Anyone reading this who has been involved with this system and does not believe that prosecutors are using their power to damage and coerce people and doesn’t believe that they can and will create evidence through witnesses’ unfounded testimony in exchange for a “deal” is probably still leaving milk and cookies out for Santa this year and is still writing secret letters addressed to the North Pole. I’m sure that there are many prosecutors who do not subscribe to those acts but guess what- when you see it and hear it and know it and stay silent, you become a part of it too. I pray that the Supreme Court majority will have the courage to continue this noble battle they chose in the Blakely decision- it was right and it is shocking how intelligent people and especially our govt officials have the gall to complain of new administrative headaches and throwing their convenient hassle-free system of imprisoning citizens into “chaos”- yes, it seems you will have to prove guilt beyond a reasonable doubt before you lock someone away from the world and their families for years- and in some cases, a lifetime.. such a bother.

I know that extending Blakely to federal guidelines will not change the current abuse of prosecutorial power especially now as it relates to the highly publicized fraud allegations as some prosecutors are clawing around for their own piece of the publicity pie. But it is a start. It should strike us as incredible that govt lawyers can essentially bribe witnesses by guaranteeing them their freedom if they agree to say what the prosecutor wants to hear and provide “substantial assistance” in convicting another. If regular people tried to bribe a testifying witness, they’d be hauled off to jail but govt grants itself that privilege under the old “do as I say and not as I do” authority. Now federal prosecutors even coerce companies to fire people, refuse equal access to documentation and cut off legal expenses when accused by the govt so that the accused has no way to pay or prepare for an equal, proportional defense. It is not hard for prosecutors to convince govt friendly juries to find evidence beyond a reasonable doubt when they have a number of well prepared witnesses ready to earn their freedom on the witness stand- and it only takes one- but at least in requiring proof beyond a reasonable doubt in sentencing, we could take one firm and deliberate step toward giving a defendant more of a fighting chance. Is it no wonder the federal prosecution rate is well over 90%- does anyone really believe that this particular arm of the govt must simply be right every time? You can tell I am bitter- We used to be true believers in the system and it is incredibly devastating when you discover the ugly reality. Go Supreme Court! Bring some sanity and justice back to this process in whatever manner you can. We, the citizens, need it desperately. By the way Congress, if you are listening, it’s time to do what is right and rational rather than what you think is popular- beware of the amount of power you give to those that you have guarding the hen house- they may not be just big, hairy, toothy hens. Thank you Professor Berman for giving us non-lawyers a voice here too.

Posted by: Also Disillusioned | Aug 24, 2004 12:26:11 PM

I am not a lawyer or work in the legal profession but due to the unfortunate circumstances of having my husband be indicted, convicted, sentenced, incarcerated, released and then resentenced I have been overexposed to the US Judicial system and the Bureau of Prisons. It is my thought that in the Blakely decision that the Supreme Court is attempting to swing the pendulum back towards center. My husband received a downward departure and under appeal it was reversed mainly due to the effect of the Feeney Amendment on judicial descretion on downward departures. Our trial lasted three weeks - it was a tax case and the trial judge clearly was in the best position to judge the character and the man thus the downward departure. We lost on appeal and he was resentenced to the minimum under the guidelines. We now have a stay of execution and a "Blakely" appeal pending. I am hopeful that the checks and balances which are so important to our form of government are restored by the Supreme Court and the prosecutors and the DOJ no longer hold all the power. With the prison population growing at such an alarming rate the critical mass will be reached and the citizens of this country will be demanding a return to sanity in sentencing. Thank you for your work

Posted by: Appeal Pending | Aug 26, 2004 8:18:28 AM

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