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September 28, 2004

Give the SG points for persistence

The Acting Solicitor General's reply brief (available here) makes a game effort to stick to its game plan, but both the reasoning and the strategy still leaves me puzzled. Let me detail some initial questions/concerns here:

On the applicability of Blakely to the federal sentencing guidelines: The logic of the SG's argument now seems to be that applying Blakely to the guidelines would essentially convert all guideline enhancement into elements, which is constitutionally problematic because only Congress can pass criminal statutes that create elements. It is a nice effort, aided clearly by the work of the Fourth Circuit in Hammoud, to try to make this case about the validity of Mistretta rather than about defendants' constitutional rights. But each step in this argument creates new puzzles.

First, it is long-established and essentially uncontested that Ex Post Facto doctrine limits the application of new guideline provisions; but that conclusion seems subject to the same concerns that the SG now raises about the application of Blakely. If treating the guidelines as the functional equivalent of statutes/elements for Ex Post Facto purposes has long been accepted and thought appropriate, I do not see why doing the same for the Sixth Amendment should be a real concern.

Second, though the line of cases culminating in Blakely have thrown around the term "element," the Court has also emphasized that effects and not form dictate the reach of the Sixth Amendment. Call it an element or a factor or Mary Jane, when the law makes a fact essential to the legal upper-limit of available punishments, five member of the Supreme Court have now said consistently for five years that such a fact must be proven to a jury beyond a reasonable doubt.

Third, as I suggested here in discussing Hammoud, there is a "through the looking glass" quality to the government's argument, especially given the Framers' apparent interests in democratic checks and balances and in safeguarding individual rights through the Bill of Rights. The consequence of the SG's argument, as I understand it, is that if and when Congress creates binding sentencing laws though traditional legislative means (securing approval by both houses and signature by the President), then defendants have the benefits of full constitutional procedural rights in the application of those laws. But if and when Congress finds a way to writing binding sentencing laws through non-legislative means (e.g., by creating an agency whose rules will be deemed legally binding despite never being traditionally enacted), then defendants have no procedural rights in the application of those laws.

On the severability of the federal sentencing guidelines if Blakely applies: The SG finally bites the bullet and explains with a bit more candor its complete views on severability. Parole is not back: footnote 3 of the SG's reply brief says the abolition of parole can be severed. Indeed, it seems all part of the SRA remain in place except the guidelines are no longer binding. But, clarifies the SG, the guidelines are completely jettisoned only in cases with Blakely factors, the guidelines should still apply with full binding force in cases without Blakely factors. The SG concedes that this suggested "use of two different sentencing schemes would no doubt lead to less proportionality and uniformity in sentencing," but that apparently is the price we must pay to avoid the prospect of "windfall sentences."

As I have explained here and here and here, the SG's proposed dual system with advisory guidelines in Blakely cases raises a host of critical administrative questions. But, most fundamentally, it makes it especially important, as I suggested here, to know exactly how many cases have Blakely factors. If only 20% of all federal cases have Blakely factors, the impact of the SG's proposed dual system with advisory guidelines used in 1 in 5 case is not all that dramatic. But the SG in its reply brief now represents that 65% of cases involve Blakely factors, which would mean that the SG is now urging the use of an advisory guideline system (a system which we know was expressly rejected by Congress when passing the SRA) in roughly two-thirds of all federal cases.

Beyond all these concerns, I wonder if DOJ and the SG fully appreciate the potential for bizarre and harmful gamesmanship which could (and likely would) result from its proposed dual sentencing system. Consider a defendant in a case without Blakely factors who might reasonably think she has a chance of a lower sentence without the guidelines' limits on the consideration of mitigating circumstances. (Martha Stewart or the defendant in this Ninth Circuit case come to mind.) That defendant would seem to have an incentive to obstruct justice, in order to create a Blakely factor, so that then a judge could be free to sentence lower than the guidelines.

Does DOJ really want a sentencing system in place which could create incentives for defendants to obstruct justice? Or, more importantly, do we really think this model of dual sentencing which could create these incentives better comports with Congress's goals when passing the SRA than simply requiring the government to actually prove all sentencing-enhancing guideline facts?

September 28, 2004 at 03:22 AM | Permalink


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The government claims that Mistretta establishes that the Guidelines lack the requisite "legislative character" to trigger Sixth Amendment protections. Mistretta, however, merely addressed whether, from a separation of powers standpoint, it was legitimate to include federal judges on the sentencing commission. This separation of powers analysis does not bear on the Sixth Amendment inquiry. By analogy, federal judges do not violate the separation of powers doctrine when they serve on the Federal Rules Advisory Committees and participate in the drafting of the Federal Rules of Procedure, etc., even though these Rules have "legislative character" (they have the force of statutes; indeed, when a conflict arises, they supersede statutes). But this does not exempt a Rule of Procedure from Sixth Amendment scrutiny. For example, a proposed Rule which gave the government the right to seek summary judgment in criminal trials might not violate the separation of powers doctrine simply because judges participated in drafting it, but it would likely not survive Sixth Amendment scrutiny.

Posted by: Tim Cone | Sep 28, 2004 12:14:19 PM

Two quick thoughts, and I don't claim at all, despite the name, to represent official views of any government.

First, the analogy to retroactivity law is interesting, but I think doesn't ultimately help the petitioners. Non-retroactivity for judicial decision is based on the legal fiction that judges only interpret law, rather than make it. But it's a fiction demanded (and maybe this is obvious) by Article III's "case or controversy" requirements. If Ex Post Facto applied to judicial interpretation, any time a federal court tried to develop the criminal law in a way that would disadvantage the defendant, it would have to hold that its ruling didn't apply to the defendant at bar--hello, serious standing problems.

So if the judicial ex post facto rule is tied to case or controversy limitations, and those limits don't bind the Sentencing Commission, then it could logically follow that the Sentencing Commission is still in some meaningful sense "judicial" even though its decisions are subject to ex post facto analysis. (And I'm a bit surprised the SG was uninterested in arguing that point, as well, although I won't get into the potential arguments here.)

Next, on the severability questions, I think you've been a bit unfair to the government's position, because the implied assumption to their arguments is that we are arguing over an interim, not a permanent, rule. No one really believes Congress won't step in to fix the appeal provisions, or to cut out gaming of the two-tiered system. But in the meanwhile, there are defendants who swindled grandma & her friends out of $5 million who are looking at 6 month maximums. And Congress couldn't fix that without...ex post facto problems.

Posted by: a government lawyer | Sep 28, 2004 2:15:38 PM

Just a couple of comments on the SG reply.
1. Putting the USSC in the judicial branch does not make it a judicial body. It is the composition of the organization that makes it a judicial body, not in which branch of the government it is placed. Following the SG rationale, Congress could change the composition of the USSC to be not more than 1 judge and the rest members of Congress and still be considered a "judicial body," even if no judge was ever appointed! The Judicial Conference of the United States is a judicial body and would be so even if it were placed in the Department Education.
2. One must agree that the USSC is doing nothing more than doing what judges have historically done in imposing sentences. The problem is it is not judges doing it; it is a commission created by and under the thumb of Congress, the majority of the members of which are not judges.
3. To say that Congressional mandates to the USSC are not binding using the example used by the SG is so lacking in substance as to be almost comical. The USSC in that example did exactly what Congress mandated, it reviewed and reconsidered its prior position and then adhered to it. The fact that Congress then did nothing to "correct" what it wanted re-examined does not in any way support an argument that the USSC may disregard Congressional mandates. It is more correct to assume that Congress having asked the USSC to reconsider and the USSC having reconsidered and stood by its prior decision, that Congress was satisfied.
4. The suggestion that applying Blakely to the USSG would result in overruling prior cases, should not give the court any degree of heartburn. Watts for one should be overruled. It is particularly repugnant to our system of criminal justice to punish an individual for a crime of which the jury acquitted. The "real offense" versus the "charged offense" concept is troubling and contrary to the not only intent but the very language of the Consitutinal guarantees embodied in the Constitution and Bill of Rights.
For all the gloss and grand sounding reasons given for enacting the SRA, the real reason for its enactment was that Congress believed too many defendants were doing too little time! That it tended to eliminate disproportionally, inconsistency, and create transparency in sentencing is beyond any real dispute, but if anyone believes these incidentqal by-products were the motivating factors, I have some great deals for for you.

Posted by: Thomas J. Yerbich | Sep 28, 2004 7:31:12 PM

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