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September 26, 2004

Carefully thinking through "sentencing chaos"

There is no question that, as noted here and here, sentencing in the federal system has been chaotic in the wake of Blakely. However, the amicus brief filed by the NAFD makes (at p. 2) this provocative (and I think accurate) statement about the chaos:

For those who practice criminal law in the federal courts every day, the only chaos has been caused not by applying Blakely to federal criminal cases, but rather by those trying to avoid its application or to force its reconsideration.

The whole NAFD brief seeks to document how the "requirements of Blakely are assimilated readily into the federal sentencing scheme, with little or no change to current statutes or rules." Id. And district court decisions such as O'Daniel (discussed here and here) and Johns (discussed here), as well as the on-going cases detailed in the NAFD brief, certainly seem to back up the NAFD's assertions.

As a thought experiment, it is fascinating to imagine what the last three post-Blakely months might have looked like if DOJ and the US Sentencing Commission had tried to make lemonade from what they thought was a Blakely lemon. Surely the multi-directional circuit splits noted here and the wild variations in district court practices would not have been as diverse and dramatic if DOJ was not pressing arguments that seem to fly in the face of Blakely's holding and express language. (Of course, the decision by DOJ to "Blakely-ize" indictments highlights it did have the good sense to "preserve" on-going federal cases even while arguing Blakely's inapplicability.)

Though allocating blame for the last three months is certainly fun, I am more concerned now with the future than the past. And my review of the respondents' briefs in Booker and Fanfan have me convinced that chaos will continue to reign supreme if the SG prevails on its severability claims. I have highlighted before here and here and here various questions and concerns about the SG's severability claims, and the respondents' briefs only deepen these worries. I am hopeful, but not all that optimistic, that these questions and concerns will be addressed in the SG's reply brief.

Most pressing now, in my mind, is some account by the SG of how advisory guideline sentencing is supposed to work. The Fanfan brief astutely notes that the SG "devotes some 23 pages to attacking jury factfinding [but] begins and ends its discussion of advisory Guidelines in just over one page." Fanfan Brief at pp. 48-49. Even putting aside the initial critical questions of whether all or some cases get "advisory" treatment and what comes of all the Blakely-ized indictments, I am very curious as a matter of substance and procedure how advisory guideline sentencing is supposed to operate.

Here are just a few of the many questions I have about the operations of a guideline-advisory world:

1. What should a probation officer put in presentence report (PSR)? For the guidelines to truly be advisory, PSRs would still need to include guideline calculations (still based, I would assume, on both charged and uncharged facts that compell guideline enhancements). But, to aid a court exercising its (now unfettered) sentencing discretion, shouldn't a PSR also cover a broad range of "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing? Recall that the SG asserts that still operative is 18 USC 3553(a), which mandates that a judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act. It seems that a lot of mitigating "offender" facts — which have been deemed "not relevant" or "not ordinarily relevant" by the Commission in its binding guidelines — would become very relevant if the guidelines became merely advisory.

2. What should prosecutors and defense counsel put in sentencing memoranda to the court? Would prosecutors and defense attorneys be able to contest, either factually or legally, aspects of the PSR's advisory guideline determinations? Especially because these calculations might prove to be legally significant for Due Process/Ex Post Facto reasons, I would suspect that even advisory calculations might need to be heavily litigated (and perhaps subject to appeal, see point 4 below). And, in addition to raising issues about the shadow calculations, would prosecutors and defense attorneys then have separate sections in sentencing memoranda with arguments and recommendations concerning various "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent because binding guidelines declare them largely off limits?

3. What decision-making process must a sentencing court employ? Would a district judge have to resolve on the record factual disputes over advisory guideline calculation? Would departures still play a role at this stage — i.e., if a court would have departed (up or down) if the guidelines were binding, would that (possibly important but still hypothetical) decision need to be explained and justified on the record? When turning to the application of its discretion, would the court need to give a hearing to defendants interested in presenting evidence concerning various "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth? Again, recall that these offender issues arguably become legally significant to the extent a sentencing judge is required, pursuant to 18 USC 3553(a), to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act.

4. What happens to and during appellate review? The SRA's appellate review provision, 18 USC 3742, does provide for "plainly unreasonable" review when "there is no sentencing guideline." What will that mean in a world with advisory guidelines, and how might Due Process and Ex Post Facto claims fit into this strange new world of appeals from advisory guidelines? Would a defendant be able to raise claims about a PSR's or a district judge's "advisory" guideline calculations? Will a defendant be able to argue simply that an imposed sentence, no matter how low as compared to the advisory guidelines, was still "greater than necessary" to comply with the purposes specified in the Sentencing Reform Act?

Because I am in the ivory tower and not "on the ground" with the courts and lawyers handing out 65,000 federal sentences per year, perhaps I am mistaken that the SG's arguments raise all these challenging questions. (Indeed, I hope folks who are "on the ground" might use the comments to help me work through these issues.) But everything I have read is pointing me to the view that the SG's arguments on severability will actually create more, not less, sentencing chaos. Of course, there is that ever-present worry that some defendants might get a "sentencing windfall," SG brief at 68, but I will try to explain further tonight why even that concern may be something of a red herring.

September 26, 2004 at 12:55 PM | Permalink


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I spent four years prosecuting in Michigan state courts with no guidelines. Since 1977, I've done criminal defense work in Michigan state courts, working with no guidelines until 1984, then with two sets of advisory guidelines from 1984 to 2000, and since then with mandatory guidelines.
Michigan has always been an indeterminate sentencing state, where the judge sets a minimum term of imprisoment, and the statutory maximum is the maximum prson sentence, for offenders sent to prison. The first set of advisory guidelines had a mitigation variable, the second set did not. Under the advisory guidelines, the judge remained free to impose any minimum sentence up to two-thirds of the statutory maximum, and departures from the guidelines were expressly encouraged. In practice, this meant upward departures were encouraged, as downward departures made elected judges look soft on crime. The advent of these guidelines pretty much stopped the development of an emerging body of case law governing the appellate review of sentences. The mandatory guidelines require the judge not only to look at the guidelines, but to impose a minimum sentence within them, absent substantial and compelling reasons for departure. Essentially they tell the judge either to impose a sentence other than prison, in which case all terms of probation remain open, including up to one year in the county jail; or to impose a prison sentence, in which case the guidelines set the upper and lower limits for the minimum term of imprisonment ( I see this as Justice Scalia's "statuory maximum" as explained in Blakely), with the maximum maximum remaining fixed by satute; or they tell the judge that either a prison sentence within the guidelines, or a probationary term, is acceptable.
Michigan statutes prescribe the contents of presentence reports. I would expect any system, either in federal court or in state courts, to have s similar requirement for the contents of presentence reports. Michigan probation officers have always scored the prior record variables and the offense variables for the judge. These can be contested, either by argument at sentencing, or in an evidentiary hearing, and improper scoring of the guidelines has become the principal avenue for seeking appellate relief on sentencing issues.
My personal experience is that mandatory guidelines are tolerable, because of the command to the judge to impose sentence within the guidelines, whereas advisory guidelines are abominable, because they gave the appearance of controlling judicial discretion, and of reining in abuses of discretion, without the substance of any control, and without any meaningful appellate review. Points are now held to be properly scored if there is any evidence to support the scoring decision. Therefore, there is no meaningful appellate check on the judge's decision, such as the nascent body of case law was beginning to develop, before our first set of advisory guidelines came along in 1984.
I guess my bottom line is that we should be careful what we wish for. In my world, advisory guidelines are worse than no guidelines. I had clients who got burned with no guidelines, with advisory guidelines, and with mandatory guidelines. Fewer got burned under the mandatory guidelines than under any other system. With no guidelines, people got longer prison sentences than they should have, but those were people who were prison-bound anyway. They just got a longer minimum before having the opportunity to meet with the parole board. Under advisory guidelines, they got just as badly burned, or worse, but had no appellate relief, and had been given the appearance of uniform treatment--after all the judge "looked at" the guidelines--but without the substance. It just so happened that my client was the poor soul who had the judge depart (upwards), as the guidelines encouraged. I don't know how advisory guidelines would work in the hands lf judge with lifetime tenure. In the hands of judge who must periodically face the electorate, they can be illusory. The illusion then masks the need for true sentencing reform, and prevents it from occurring.

Posted by: Greg Jones | Sep 26, 2004 10:18:22 PM

Thinking about your comments here, I think the view from ground level is significantly different. The participants under advisory guidelines would follow the same procedures they do now, for the most part, largely because of inertia if nothing else.
The anticipated contents of the PSR should not change materially under advisory guidelines. I think you are conflating what you think should be relevant -- family history, drug use, etc. -- with what the sentencing commission thinks should be relevant, or perhaps what the commission should think relevant if the guidelines were advisory. If the commission doesn't think such facts ordinarily relevant, then an "advisory" PSR based on the recommended sentencing factors would ignore them, as it has done in the past.
Whether a particular judge agrees with your estimation is a different question, and particular judges may request that the PSR contain such facts. Query whether the probation officer would get those facts from anyone but defense counsel, as they do now. (What probation officers usually bring to the table is an ability to read 50 states worth of criminal records, so that the defendant's criminal history can be properly calculated.)
The mitigating facts you propose are routinely presented by defense counsel to request that the court sentence at the low end of the range, or depart downward in extraordinary cases. The prosecution will respond to defense requests to consider such factors for guiding discretion by loading up the other factors for guiding discretion that you find troubling, such as prior uncharged criminal conduct. In my experience as a prosecutor and a defense attorney, it was a mixed bag when you started to ask the Court to consider the defendant's whole life when sentencing.
By the way, different judges will weigh the "mitigating" factors you suggest very differently, in my experience. Some will consider them grounds for mitigation, others will consider them evidence of likely recidivism, or of a character that is unlikely to be law-abiding. We're right back on the unfettered discretion ground the guidelines were created to avoid, with tough judges moving one way, and soft judges moving the other, and race and gender lurking improperly in the background.
I'm willing to bet that the appellate courts would be very hands-off under the "plainly-unreasonable" standard of review. I am also willing to bet that the caselaw would develop that as a matter of law, failure to consider facts not enumerated in the advisory guidelines, particularly facts deemed "not ordinarily relevant" by the Commission, would never be "plainly unreasonable." I think the guidelines calculation would still matter, and still be litigated, because they would constitute the collective wisdom against which a judge's conduct is measured for reasonableness. There would probably be some mathematical threshold, de facto if not de jure, that amounts to expanding the sentencing range by 25 percent above and below the current range, before review is triggered in an appellate judge's head. Once you got there, the lower court would be plainly unreasonable if it was moving around beyond that on the basis of facts not before it. So the factual record would still matter.
The double jeopardy and due process concerns you raise are much more thorny.
I also think there is some question of institutional capacity to declare the guidelines advisory, rather than to strike them altogether. I think the courts can strike them altogether, and individual judges can consider them or not, but the regime you propose would leave the review provision in place, on the premise that the court's could declare the guidelines advisory for all judges in some enforceable way. On balance, I don't think that's proper. Congress can declare the guidelines advisory, and then it would be proper to grapple with these issues.
The ex post facto and double jeopardy concerns depend, I think, on whether a majority of the court ultimately considers enhancing facts "elements" of a crime in am way never considered by Congress when it passed the SRA. If so, there is a group of defendants who will, indeed, get a Blakely windfall, because they pled before Blakely was decided, and before the guidelines became advisory, and before the prosecution was on notice that it had to allege and prove Blakely facts. For crimes committed under the old regime, I think you could "Blakelyize" the indictment and the jury verdict, and then could only enhance based on the facts proven to the jury or admitted by the defendant. For crimes committed after the guidelines became advisory, the same concerns don't apply, because the defendant is on constructive notice that he is exposed all the way to the statutory maximum.
I teach evidence, criminal law and criminal procedure at UNC School of Law.

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