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September 2, 2004

What Booker and Fanfan are about (and not about)

A quick read of the briefs submitted in Booker and Fanfan yesterday, especially the amicus briefs, could give one the impression that the Supreme Court's job in these cases is to decide the broad policy question of whether guideline sentencing reforms are a good idea. The "Senators brief" especially reads in this vein, and the way that brief frames the question presented is almost comical:

Whether, or to what extent, the Court should give effect to the intent of Congress in enacting the Sentencing Reform Act of 1984 to eliminate the intolerable disparities that had plagued the federal sentencing system by creating an integrated and cohesive sentencing guidelines system.

In my view, it is inaccurate and quite dangerous to understand or frame the issues in Booker and Fanfan in this way; there is absolutely no way, no matter what the Supreme Court says, that the decision in these cases will formally or even functionally destroy the possibility of any guideline sentencing reforms.

Indeed, this is why I think it is very significant that states have not filed any amicus briefs in support of petitioners. States apparently recognize, correctly in my view, the truth in Justice Scalia's statement in Blakely that this line of cases "is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment." Kansas retained its guideline system even after its state Supreme Court gave Apprendi a broad reading, and I think the states all realize that they can continue modern sentencing reform efforts even if defendants are given broad procedural rights at sentencing.

Booker and Fanfan are not about the theory or soundness of guideline reforms in general. The cases are both formally and functionally about what rights defendants have under the Sixth Amendment (and the Due Process Clause). Obviously, the definition of these rights will necessarily impact how jurisdictions can implement guideline reforms, and also profoundly impact whether the federal sentencing system can continue to operate in its current form. But it is in my view misguided and harmful to even suggest that the Supreme Court inthese cases is in the role of a super-legislature with the task of deciding whether the general policies motivating sentencing reform are justifiable.

If observers (and legal realists) feel it is appropriate to frame Booker and Fanfan as cases about sentencing policy rather than as cases about constitutional doctrine, I think the dialogue should move down one level of abstraction. Rather than defended the broad value of guideline sentencing reforms in general, I would like to hear a defense of the current federal sentencing system in operation. Ironically, given all the strong evidence that the exercise of prosecutorial discretion and other forces has produced great disparities in the operation of the federal guidelines (see, e.g., this report from the USSC on disparities in substantial assistance departures), a good case could be made that striking down the federal system in Booker and Fanfan would "give effect to the intent of Congress in enacting the Sentencing Reform Act of 1984 to eliminate ... intolerable disparities."

September 2, 2004 at 07:50 AM | Permalink


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I agree generally with the general point you're making but I'm one who has tried to frame the issue as a general referendum on the system as it has evolved in practice. While the analogy isn't perfect, other momentous Court decisions--Brown v. Board of Ed. in particular and perhaps the right-to-privacy decisions too, for instance--were clearly intended to have a sweeping effect on a broad, policy, level. Of course, the justices can't say that, but they had to know that this would be the impact of their decisions. On that theory, shouldn't they be made aware of the broader issues at stake here so they can make a fully-informed decision on the narrow question actually presented?

Maybe the more elegant way to address your comment is to frame the debate as a question of how broadly to interpret the sixth amendment. If it's as broad as the penumbra of the right to privacy, maybe any legislative constraints on sentencing would simply be unconstitutional (Mistretta, decided before the USSC-packing plan, notwithstanding). Knowing whether the system in practice comports with the sixth amendment or leads to frequent violations of it would help the Court decide how broadly it must be interpreted to fix a widespread problem.

Alex Eisemann

Posted by: Alex E. | Sep 2, 2004 9:18:29 AM

Prof. Berman:
Very powerful, inciteful comments. And I think the reason that those voices are dooming guidelines systems is because so many involved with the sentencing world seem to have a strange myopia--they see that the only choices available are the Federal Guidelines (or strict state statutes) OR a "return" to completely indeterminate (discretion-by-judge or discretion-by-parole-board) sentencing. Very few people seem to be talking about sentencing EVOLUTION, rather than sentencing REFORM.
As the Court has noted, there was little to sentencing in our common law history--found guilty of a felony, you die. Thus, sentencing factors were all wrapped in the offense of conviction.
I like to think our society has advanced from that state, recognizing that few (if any) crimes deserve death, and also realizing that there are subtle differences between criminals' actions. Combine that with very new, complex crimes (and I'm not talking about the difference between larceny by trick and false pretenses), and the lack of a comprehensive code (in the federal system), and it's obvious that we need a system that ensures just punishment that is able to work in the criminal system we have today.
Sure, under the "old" federal system, there was a degree of arbitrariness to sentencing--two similar criminals doing the same crime would likely be punished differently. In some cases, that disparity was based on race or wealth. And in a complex criminal landscape, that is unacceptable. Plus, in many ways, an indeterminate scheme provided no more protections to the defendant when considering the nature of the offense or his personal history. But that does not bless an overreacting guidelines system like the one in the federal government.
The new question, as you noted, asks how can we use the adversary and jury systems to ensure that the truth about a person's conduct is discovered. That's what Blakely is about. And once those involved with the system (including the pragmatists on the Court, ahem Justice Breyer) realize that, then perhaps our criminal justice system may move toward a more just model.

Posted by: District Clerk Battling Blakely | Sep 2, 2004 9:45:00 AM

In the first five pages of the briefs filed by the SG, USSC, and amici, one gets the impression that the issue before the court is the wisdom of enacting the guidelines. This "background" may indeed be interesting, but it does not address the issue before the court, which is a constitutional, not a policy, issue (the policy issue was addressed and decided in Misretta). The question is whether or not the Sixth Amendment to the Constitution requires factors that result in an increased sentence, i.e., additional punishment, for a criminal act must be determined by a jury. Not one of the briefs really takes that issue head on; any constitutional argument is either blurred or buried in the "traditional function of the court" argument.
The problem that I, and I surmise many others, have is where is the line of demarcation between sentencing factors and elements of the crime? It seems to me, for example, that if robbery and armed robbery are considered two diffrent crimes, why are not drug dealing and armed drug dealing also two different crimes? Thus, to me, if an indivudal is going to get a sentence of X months for dealing drugs or X + 24 months for being in the possession of a gun while selling those drugs, the jury is the logical body to make that determination beyond a reasonable doubt and there is no significantly greater burden on the prosecution. I also agree that there are other factors in the USSG that are not susceptible to this analysis. In this way, the USSG clearly differ from the substantially less complex scheme in the Washington statutes.
The real problem, given the complexity of the USSG, is not so much whether Blakely should apply (and I firmly believe that it should apply to the USSG as much as it does to the Washington statutory scheme) but the extent to which it applies to the multitude of factors that the USSG (all 600+ pages of it!) includes is truly an open question. Assming that Booker/Fanfan hold that Blakely applies to the USSG, the USSC will likely have to go back to the drawing board so to speak and classify the factors as being either elements to be submitted to the jury or factors for the sentencing judge alone. I believe that one must also agree that the line of demarcation between the two is considerably short of being bright-line and in some situations it will be necessary to "flip the coin" so to speak, classify a factor and then let the judicial system sort it out in the normal process.
I did find somewaht amazing the emphasis the Judges amicus brief placed on the so called "wide discretion" of sentencing judges. Perhaps I am not reading the USSG correctly, but as to upward departures, the sentencing judge has no discretion once the existence of a factor is found; the "discretion" is limited to making the finding. There is more discretion in making a downward departure, but even then the discretion of the judge is severely limited by the requirement that in some cases, notably the assistance factor, it requires the motion of the government.
For those of you who read these comments, I have in the past treated with derision the notion that the USSC is an "independent" agency. I have down so somewhat tongue-in-cheek. In the administrative agency context, no agency is, nor should it be, truly independent of Congress, the body that creates it. Being an "Independent" agency or commission simply means that its decisions or actions do not require the approval of the cabinet member who presides over the department in which it is placed by Congress for administrative and/or budgetary purposes. The USSC is, in the traditonal definition, an independent agency within the Judicial Branch. The judicial branch has no direct authority over the operations of the USSC. This actually adds weight to the counter to the argument that the USSC is a "judicial body exercising traditional judicial functions." It has always been, and since the PROTECT Act is even more so, a legislative body not a judicial body.

Posted by: Thomas J. Yerbich | Sep 2, 2004 1:52:43 PM

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