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September 6, 2004

Pulp Fiction

In addition to being a great movie worthy of great web analysis, pulp fiction is a term for a type of literature where selections of fictional short stories are printed in a bulk magazine for distribution. Thus, it makes a great label for the stories to be found in some of the Booker and Fanfan briefs filed in the Supreme Court last week. Though the deftly written briefs submitted by the SG and USSC do not make misrepresentations, the briefs certainly suggest (at least) five pulp fictions that merit focused examination:

Pulp Fiction 1: The US Sentencing Commission is a truly independent agency in which judges make sentencing rules for themselves. As discussed here and here, the USSC both in design and in operation is far more like, in Justice Scalia's memorable phrase, a "junior-varsity Congress" than like a Judicial Branch coach. If the federal sentencing guidelines were written by the Judicial Conference or developed through a true common-law process, the claim for distinct constitutional status might be more plausible. But the SG concedes at pp. 24-25, as it must, that Congressional control over the USSC is considerable. And, Judge Kathleen Cardone recently called "the proposition that the existing Guidelines, which bind a sentencing court to procedures on peril of reversal, are no more than a court rule guiding a judge through sentencing" is "a legal fiction of the highest order" (details here).

PulpfictionPulp Fiction 2: The federal guidelines merely "channel" or "guide" judicial discretion. The SG and USSC briefs assert repeatedly that the federal guidelines merely guide or "channel judicial discretion." See, e.g., SG Brief at 22; USSC Brief at 15. But of course, as many judges and observers have highlighted, the federal guidelines are guidelines in name only. They are binding legal authority which, in the calculation of sentencing ranges, directly mandate what facts must be considered by judges and also how those facts must be considered. No matter how thoughtful or reasoned, a judge who seeks to exercise her discretion in any manner that does strictly follow the guidelines' "guidance" will be reversed.

Pulp Fiction 3: No parts of the federal guidelines are statutory. Only in a footnote does the SG concede that Congress directly amended the guidelines through the PROTECT Act, and the SG's brief does not explain the potential impact of that reality on the assertion that the Blakely is inapplicable to the federal guidelines because they "are the product of ... a body in the Judicial Branch." And, of course, Congress' direct changes to the guidelines is but one part of the PROTECT Act's alternation of federal sentencing to make the guidelines even more "legislative" and less "judicial."

Pulp Fiction 4: The SRA mandates, and effective guideline reform requires, lax procedures at sentencing. As discussed here and here, the briefs intimate that the success of federal sentencing reform depends upon sentencing judges being able to find many facts by a preponderance of the evidence. But, as many state systems have shown, effective guideline reform does not require complex judicial fact-finding of uncharged "relevant conduct." Moreover, as the USSC brief reveals, the federal guidelines' emphasis on judicial fact-finding of uncharged conduct comes as a result of (highly questionable) choices made by the original US Sentencing Commission, it was not mandated by the provisions of the Sentencing Reform Act. Indeed, the USSC could have devised guidelines from the outset which would have been fully compliant with the rule announced in Blakely — and such a system likely would have been more successful and better received than the current federal guideline system.

Pulp Fiction 5: The issues discussed above matter in the application of Blakely's rule. In the end, the briefs submitted in an effort to sustain the federal sentencing system are all staging Hamlet without the prince. Though pragmatic concerns about applying Blakely to federal sentencing are stressed, lacking in all the briefs is a truly principled argument that defendants should not have a right to a jury find beyond a reasonable doubt sentence-enhancing facts.

September 6, 2004 at 11:30 PM | Permalink


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Exactly. Which is why I suppose so many district judges across the country were applying Blakely to the Guidelines in one way or another. But what's concerning me is the slow trend in the Courts of Appeals to buy each and every issue of Pulp Fiction. They're terrible arguments, really, especially in light of the Court's broad Sixth Amendment statements in Blakely. Yet the Courts of Appeals continue to grasp at these straws (or nickel-priced paperbacks) to justify commanding lower courts to proceed with business as usual (with alternative sentences, of course....). What scares me is that the Court might do the same thing. I think if the Court wants to ignore Blakely in the federal system, it's going to have to make a new substantive reason for doing so. It just can't rely on distinguishing the Washington state system (and do so with straight faces, that is).

Posted by: District Clerk Battling Blakely | Sep 7, 2004 12:37:01 PM

Perhaps needless to say, District Clerk Battling Blakely, I agree 100%. But, for reasons articulated in my "Swing(ing) Justices" post, I really do not think the court which brought us Blakely will run away now (especially if/when the justices realize the potential retroactivity consequences for the states if they buy the SG's arguments).

Thanks for your comments.

Posted by: Doug B. | Sep 7, 2004 12:58:51 PM

Perhaps the lack of a principled argument that defendants should not have a jury find sentence enhancing facts beyond a reasonable doubt is because the authors could not think of any. The Chicken Little "the sky is falling" argument, the principal argument advanced explicitly or implicitly by the briefing, addresses the constitutional issue before the court about as effectively as an umbrella protected Floridians from the rains of Frances this past week end. In the past 200+ years, application of the Constitution's "brakes" on the powers of the government have not yet caused the sky to fall. Indeed, there were many in the first 100 years who believed that the pillars of the Constitutions (State and Federal) are what keep the sky from falling [suggested reading: the treatises by Thomas Cooley (State) c. 1870 and Joseph Story (Federal) c. 1830.]
The SG and USSC both argue that the USSG reflects factors judges have traditionally utilized in imposing sentences. The USSG itself is contrary to that argument. "Offense characteristics" are, with rare exception, more analogous to "elements of the crime" than to "sentencing factors." Indeed, charging the defendant with these and proving them beyond a reasonable doubt before a jury (or court sitting without a jury where a jury trial is waived) should have little adverse impact on the "efficiency" of the criminal justice system. On the other hand, many factors denominated "relevant conduct" are somewhat more nebulous and submission of those to a jury may be problemtical. Hopefully the Supreme Court will announce a rule that allows the USSC and the courts to preserve the right to a jury trial on those characteristics enhancing sentences that can and should be submitted to a jury while reserving to judicial discretion those that truly reflect traditional judicially utilized factors and are not susceptible to jury determination.

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