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September 26, 2004

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.

September 26, 2004 at 09:43 PM | Permalink


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I think point one, while preaching to the choir, undercuts the other issues you discussed. Are you arguing that the possibility of unjustified windfall in some cases means that they are therefore justified in all cases, or are you arguing that because the prosecution sometimes grants "windfalls" it cannot now be heard to complain about other defendants receiving windfalls, albeit for entirely different reasons? Remember, we are talking about people who are guilty.
You seem to assume that the prosecution should not be able to make tailored individual decisions on the strength of the evidence, the likelihood of conviction without the plea, and the importance of other targets, as I'm sure the reporter did, without all of the relevant facts. And that the SG and DOJ are "unconcerned" with how those determinations are made, and that this is evidenced by their position in Blakely. I suppose that with a sneaking suspicion that the prosecutor is really the bad guy, it's possible to arrive at the conclusion, but be aware of the bias inherent in the position. Its interesting how there is a class of people who are willing to consider a pro-defendant jury verdict good, a pro-defendant judicial ruling or sentence good, but view a prosecutor's pro-defendant decision with a jaundiced eye.
There is definitely a class of defendants who will reap a Blakely benefit, because they will be sentenced after the Blakely decision, based on indictments that the prosecution did not have a chance to "Blakelyize" to include the enhancing facts, such as drug amount or amount of loss. How many people that ultimately becomes is difficult to tell, but I think it is reasonable to suggest that the class is small enough, because of the temporal limits, and the jury trial principle is critical enough, that the cost is acceptable.
I also think it's important to differentiate between "punishing Koch for the killing" and seeking to enhance Koch's sentence for this crime because he is the kind of person who would kill someone else. The extent to which a particular punishment complies with the goals of the SRA depends in part on the nature of the individual. The windfall comes when the truly reprehensible person is given the same sentence as the first-time offender. The problem with "Blakelyizing" the existing guidelines is that once that consideration of the defendant's character was really a guide to the Court's discretion, to be balanced with all of the other facts about this individual, whereas now it is an independent fact with legal significance, that must be proved to the jury. Koch's sentence would have remained within the possible range of punishments Congress established for the crime he in fact committed, it would have just been pushed to the upper end.
By the way, point three is well-taken. The policy questions of over-punishment and the democratic process breakdown inherent in tough-on-crime legislation I tend to agree with you on. Hopefully putting the teeth back in the jury will go some way to restoring some sanity to the system.

Posted by: Richard Myers | Sep 27, 2004 12:09:19 PM

Your comments are very interesting and insightful, but I have at least refinement. Where you say: Remember, we are talking about people who are guilty.

In my experience, we are talking about people who pled guilty. It's a huge difference.

It strains anyones credibility to believe that the prosecutors in this country, while having a 97% plea rate, actually have a 97% success rate when it comes to finding the actual criminal, or even if there was a crime to begin with. No one is that good. But they achieve that plea rate because you are given the option of spending 3 years in jail, or 30. Your choice, and you have 2 weeks to decide. It reminds me of capital punishment in Texas: plead guilty to murder and you'll get life in prison, plead innocent and get the death penalty. The federal system stopped being about guilt or innocence a long time ago. Now, it's about risk and consequence, pure and simple. The tables have been turned so far in the government's favor that defendant's have no hope of acquittal. The current system is draconian. Only in America can you plead guilty to making a nervous false statement to the feds, but be sentenced to the rest of your life for murder.

Posted by: horrified observer | Sep 27, 2004 1:40:14 PM

I'm glad for you Mr. Myers that you obviously have never had to experience this system first hand. Truth is that prosecution should not be entrusted to make "tailored individual decisions based on the evidence" because the sad reality is that they are not objective persons with an objective goal of supporting a better society. Their "evidence" is, from personal experience, made up of subjective interpretations to support the prosecution position and can be created through testimony required to support very favorable plea agreements. Prosecutors say they want to hear the truth (very sly of them don't you think?) but there is no "deal" until they hear from you what they want to hear. They are even willing to hear quite a few versions of the "truth" until you get to the right one that will earn you that "cooperation" badge and will protect you from the fate of anyone you are pointing the finger at under oath. Prosecutors are people with personal goals and ambitions and way way too much power. (I'm also beginning to wonder if they get promotions and raises based on their conviction rates- anyone know? Very suspicious of me isn't it?) I'm sure they aren't all bad- but they are flawed as we all are and maybe have gotten cynical for good reason. Problem is they are the ones with all the real power in this system. This system works really great for the prosecutors, works great for the guilty willing to plead for a deal, it is the most frightening nightmare you can imagine for the innocent. Why don't any of the 97% of people who plead guilty ever say they are really innocent and were coerced to plead? Because they'll lose the deal quick as a flash and enter another nightmare.

Also, regarding your statement that there is consideration for the defendant's character under the current guidelines... There is a 25% sentence range for the same conviction between the guy with the greatest moral character and the guy you want to never again see the light of day. So one guy gets 20 years and the other extreme gets 28 years?(My math may be off- maybe a prosecutor or a congressman could help with the calculator) I don't consider the choice between two unjust sentences is the exercise of judicial discretion. Okay- forgot that judges can upward depart pre-Blakely and get a pat on the back- downward depart and lose. It seems that the ability to impart a just and sensible sentence is the true measure of judicial discretion.

I'll grant you that most accused are not innocent but what about the ones who are? Just put yourself in that person's shoes for an instant and please consider this current system again.

Posted by: Non-Lawyer | Sep 27, 2004 5:28:21 PM

Well said, Non-Lawyer. Prisons are full of people who are just being warehoused because some guy in Probation with an office in the basement believed the wrong person with a grudge. And innocent people go to prison every day. That's EVERY DAY.

Posted by: horrified observer | Sep 27, 2004 6:47:54 PM

Probation not only convicts but they sentence people as well. Wow. As far as being in the basement, I think you are talking about the Fed. Public Defenders.

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