Carefully thinking through "sentencing windfalls"

I previously speculated here that an excessive concern that some defendants "could receive a sentencing windfall," SG brief at 68, perhaps led the Solicitor General to advocate a position on severability that could create many more problems/questions than it solves. In addition, I speculated here that many federal sentences may be even lower if the guidelines are deemed wholly inapplicable in all cases. Now I want to explain why I am not excessively concerned about "sentencing windfalls" that might result from the safeguarding of defendants' Sixth Amendment rights:

1. Some defendants now get sentencing windfalls from prosecutorial deal-making. This op-ed from today's Chicago Sun-Times provides an example of a federal prosecutor giving sentencing windfalls in order to obtain testimony. Similarly, PBS a few years ago did this great Frontline series documenting how "federal mandatory minimum sentencing and conspiracy provisions [have] bred a culture of snitching that is in many cases rewarding the guiltiest and punishing the less guilty." Another recent windfall example comes from the Johns case discussed here; the defendant in Johns, despite having "numerous prior convictions" and playing a role in a drug distribution scheme involving a "substanal quantity" of crack and a firearm, had his sentence "capped" at four years because a prosecutor allowed Johns to plead to an offense with a four-year maximum sentence.

2. If prosecutors seek an enhancement for a distinct crime, a distinct charge can be brought and proven. In a case like Koch (discussed here), prosecutors sought and obtained a sentencing enhancement for a killing that was never charged nor considered by a jury. In Booker and Fanfan, the government seeks a longer sentence based on distinct drug offenses never charged or proven to a jury. After Blakely, I would think the government could still seek to punish Koch for the killing and could still seek to punish Booker and Fanfan for the distinct drug offenses; prosecutors would just have to allege and prove the killing or the drug offenses in a traditional adversarial proceeding rather than slip the facts into through the back door of guideline sentencing. In other words, it seem that a true windfall will come to pass in many cases only if prosecutors decide not to fully prosecute.

3. In some cases, sentencing judges might be able to upward depart to avoid a truly unjust "sentencing windfall." A sentencing judge might still have authority after Blakely in particular cases to "upward depart" from the federal guidelines to address any true "under-punishment" problems. Such an upward departure might, in particular cases, be based (1) on the facts proven at trial or admitted by the defendant, or (2) on prior convictions, or even (3) on the legal conclusion that the reduced guidelines sentence is not sufficient to serve the purposes of punishment as required by 18 USC 3553(a). (This last ground for upward departure might be shaky after Blakely, but Justice Scalia's opinion in Ring seems to suggest a distinction between fact-finding by juries and legal determinations by judges at sentencing.) Of course, a sentencing judge would have to justify an upward departure on the record and this decision would be subject to appellate review. But the authority to upward depart provides an existing mechanism — and in my view a quite sensible and orderly mechanism — for judges on a case-by-case basis to address any truly problematic "sentencing windfalls."

4. Reduced sentences may not be "windfalls," just a more sensible punishment scale. Even if they prevail in the Supreme Court, Booker faces 22 years' imprisonment and Fanfan faces 6.5 years' imprisonment for what appear to be non-violent drug transactions. Only a society with an unhealthy addiction to over-punishment and mass incarceration (as Marc Mauer suggests here) would think it is a "windfall" for non-violent drug offenders to get such long terms. Moreover, both Booker and Fanfan will be in prison much longer than the aforementioned Johns. It is discouraging that DOJ and the SG are apparently very concerned about "windfalls" that might flow from the recognition of constitutional rights, but apparently not very troubled by "windfalls" handed out by its own prosecutors.

I could go on, but I have already worn myself out today. In this prior lengthy post, I explained why I am concerned about the post-Blakely federal sentencing world that the government is advocating. My goal in this post has been to explain why I am not too concerned about the post-Blakely federal sentencing world that the government is opposing.