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September 17, 2004

A Dr. Seuss morning

In the grand tradition of Dr. Suess and his One Fish, Two Fish, Red Fish, Blue Fish, I present here Good News, Bad News, Cool News, Rad News:

Good News: My luggage was found, so I have clothes to wear at this HLS event this morning.

Bad News: As of this writing, the US Sentencing Guidelines look sounder than the US Ryder Cup team, which is already behind in 3 of 4 morning matches.

Cool News: Esteemed federal sentencing practitioner James E. Felman of the firm Kynes, Markman & Felman has sent me a copy of a thoughtful memo he sent to the US Sentencing Commission to address "possible legislative responses" if the "Supreme Court in Booker and Fanfan holds that the guideline maximum is the relevant statutory maximum for Sixth Amendment purposes." You can download the document here:
Download felman_blakely_proposal.rtf

Rad News: I received yesterday a copy of a motion authored by Judge John Martin on behalf of the ad hoc group of former federal judges asking the Supreme Court for ten minutes of argument time in Booker and Fanfan. The motion asserts that "the voice of those who have actual experience applying the Guidelines should be heard at oral argument."

The motion states that Judge Martin can make an argument the SG cannot; that is, that Koon v. US gives district judges broad departure power under the federal guidelines. Recall that the ad hoc judges argue in their amicus brief (available here) that this claimed discretion distinguishes the federal guidelines from Washington's sentencing scheme struck down in Blakely. (This is, of course, a tough argument given that the sentencing judge in Blakely had broad discretion when deciding to depart, and that Justice O'Connor rightly noted in her Blakely dissent that the majority "flatly rejects" the argument that it is significant that Washington's sentencing guidelines "still allow Washington judges to exercise a substantial amount of discretion.")

Among other realities, this motion suggests that Judge Martin is still on planet Htrae in the Bizarro world, because there is no mention of the Feeney Amendment (which legislatively overruled Koon's main holding), and Judge Martin is still claiming "that the federal Guidelines are analogous to an indeterminate sentencing regime because sentencing judges retain substantial discretion to depart from a Guideline sentence."

September 17, 2004 at 10:00 AM | Permalink


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To somewhat paraphrase a famous (or infamous) presidential statement, whether federal judges retain discretion depends on what is discretionary. One definition of "discretion" is the "power of free decision or latitude within certain legal bounds" (Merriam-Webster on-line Dictionary). One might say that the USSG sets the legal bounds within which federal judges may exercise their discretion. That is, application of the factors in the USSG determine the legal bounds (the place on the Sentencing Table grid as determined by the offense level and criminal history) which then provides the range within which the sentencing judge may impose the sentence. How wide that is, given that the upper range on each segment of the grid can not exceed the lower point by more than 25%, is another question.
However, so-what? As you have noted, the question under Apprendi/Blakely is not whether the judge may exercise discretion within a given range. The question is whether a judge may enhance (increase) the sentence based on facts that the judge finds beyond those found by the jury. To say that a federal judge has discretion in determining where on the Sentencing Table grid the defendant falls is, as a senior judge of my acquaintance so elloquently stated is "hogwash."
A federal judge MUST use the USSG. A federal judge MUST, if certain factors are found to exist on a preponderance of the evidence (that does not have to meet the rules of evidence), increase the offense level. In that sense latitude other than to refuse to find the existence of the factor is non-existent. The statistics often cited as to the percentage of cases in which there were departures from the guidelines are deceptive. Not once has anyone relying on those satistics separated them into upward departures and downward departures. If aggravating facts are found to exist, a federal judge MUST increase the offense level. On the other hand, if mitigating facts are found to exist, a federal judge MAY reduce the offense level. The only "discretion" in applying the guidelines is downward and, as you and many other have noted, the Feeney amendment limits that discretion. Indeed, as many have noted, sentencing is more dependent upon prosecutorial than judicial discretion!
When I took Criminal Procedure in law school some 35 years ago, penology was based on the 3 R's and a D (retribution, restraint, rehabilitation and deterrence). In the past 25 years nearly all have come to the conclusion that rehabilitation in connection with imprisonment is an oxymoron. Attempting to rehabilitate an individual in a prison setting is about as effective as sentencing a prostitute to a house of ill-repute and expecting her to become a paragon of sexual virtue. It is true that that the USSG still focuses on 3 R's and a D, but has substitued recidivism for rehabilitation and significantly reduced, if not eliminated, from any consideration by a federal judge a defendant's potential for rehabilitation.
I retiterate what I have said in the past. I have yet to see a principled and persuasive argument that Apprendi/Blakely are wrong on constitutional grounds. No one would argue that if the legislative branch were to create three levels of robbery, 1st, 2nd, and 3rd degree, with 20-, 15- and 10-year sentences respectively, that a judge could sentence a person convicted of 3rd degree burglary to a 20-year 1st degree sentence instead of the 10-year statutory maximum for a 3rd degree conviction. Has not the USSG created different degrees of ciminal conduct depending upon the existence or non-existence of certain factors? Whether we denominate the majority of those factors as "elements of the crime" or "sentencing factors," is nothing more than a lexiographic shell game.
The USSG, as presently constituted and applied, tend to eliminate what Justice Joseph Story opined in his 1840 exposition on the U.S. Constitution was one the most important protections that a jury provided: an ameliorating bulwark against the rigidity and harshness of the law and the power of the government. To the doomsayers, applying Apprendi/Blakely to the USSG does not destroy or overturn the acknowledged benefits of determinate sentencing, it simply restores to the criminal justice system a bedrock principle: the bulwark of jury comprised of ones peers as protection from the harshness and injustice that can result from a rigid application of the law under particular circumstances. For all its imperfections, who better than a jury drawn from a cross-section of the community to represent the interests of society as well as the individual defendant in a criminal prosecution? I acknowledge that because of demographic and population changes a jury in the 21st century differs from a jury in the first half of the 19th century. But until someone can devise a better system (note, I said better, not more efficient), then I say let's stick with the one that has served us well for more than 200 years. Congress to provide the paramenters of what conduct is to be punished and the punishment for that conduct as does the USSG, but leave to a jury to determine whether the defendant engaged in the conduct for which he or she is to be punished as does application of Apprendi/Blakely.

Posted by: Thomas J. Yerbich | Sep 17, 2004 1:37:34 PM

I agree with Mr. Yerbich's comments... but related to the post, I still wonder what the motivation is for these federal judges to defend the Guidelines on Koon grounds. Do they really believe that the current guidelines system provides judges with sufficient discretion to avoid constitutional scrutiny? Or are they afraid that any other system will be even more restrictive? Or are these FORMER judges simply interested in law and order (or consistency) and will say whatever to keep the current system in place.
As I have mentioned before (under your bizarro-world post), most current federal judges don't share these judges' view of discretion. If the Court were to allow (and to believe) these judges' arguments, it could instill a dangerous (and largely incorrect) view of what's going on in the lower courts, in SCOTUS's mind.

Posted by: district clerk battling blakely | Sep 17, 2004 4:45:13 PM

Is it me, or is it beyond-Bizarro that Judge Martin's name shows up on the list of Task Force members who (ostensibly)contributed to the ACTL brief identifying the Guidelines as a failed experiment?

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