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October 5, 2004

Justice Breyer's (lack of) perspective

As noted here, Duke University Law Professor Erwin Chemerinsky has been saying that Justice Stephen Breyer should recuse himself in Booker and Fanfan because he "is one of the 'parents' of the federal sentencing guidelines." Though I am not sure recusal is appropriate, it was clear from many of Justice Breyer's questions at oral argument yesterday that, like all parents, Justice Breyer does have a somewhat rose-colored perspective when he considers his guidelines "baby."

Only with the oral argument transcript (whenever it is available here) will I be able to effectively highlight how Justice Breyer's questions revealed his essential affinity for the existing guidelines. But I can here report that the overall tone of his questions — just like the overall tone of his Blakely dissent — seems infused with the belief that the federal guideline system he helped create (with its "relevant conduct" rules which require punishment on uncharged, unproven and even acquitted conduct) is the only way to develop a workable guideline system that limits the impact of prosecutorial plea bargaining and matches up real conduct and real punishment.

Beyond basic concerns about "parental" bias, Justice Breyer's positive views about the federal guidelines seem to be largely out-of-touch with the real day-to-day operation of the system (at least as I hear it described by trial judges and lawyers). Consider as evidence of a more sober reality the recent report (available here) from the American College of Trial Lawyers, tellingly titled "United States Sentencing Guidelines 2004: An Experiment That Has Failed." This report, which should be a must read for everyone contemplating the future of federal sentencing reform, thoughtfully explains why:

— "the [existing federal] Guidelines have created a sentencing system wherein the power to make decisions about sentencing has effectively been transferred from the judge to the prosecutor"
— "the 'real-offense' feature of federal sentencing greatly exacerbates unfettered prosecutorial discretion and promotes questionable prosecutorial practices"
— "difficulty in uniformly applying the multiple and complex provisions of the Guidelines and the variations in prosecutorial practice [together with variable departure practices] have resulted in disparate sentences imposed under the same Guideline provisions"

and finally
While the goal of eliminating unfair disparity in federal sentences was laudable, the Guidelines themselves are an experiment that failed. The Guidelines, together with the increasing number of mandatory minimum sentences, have created a system that is too complex, rigid and mechanistic. The existing system places the goal of uniformity above all other policies and, most significantly, above the goal of justice in the individual case. The elimination of unfair disparity in sentencing, to the extent this has been accomplished, has been only superficial.

Put another way, though Justice Breyer's vision of the federal guidelines may be sound in theory, it has proven problematic in practice. Moreover, though Justice Breyer obviously fears a charge-offense guidelines system could exacerbate the impact of pleas and prosecutorial power, the basic success of most state guideline systems has shown that charge-based systems can be generally effective. (Or, at the very least, they are not obviously much worse than the existing federal system when it comes to the impact of prosecutorial power). See generally Richard S. Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Fed. Sent. Rep. 69 (1999).

In sum, reports from inside the system indicate that Justice Breyer's federal guidelines "baby" in fact suffers from at least a touch of jaundice. Whether the application of Sixth Amendment rights will cure the "baby" remains to be seen, but I hope Justice Breyer is able to appreciate that the baby may at least need some sort of legal check-up.

October 5, 2004 at 05:20 PM | Permalink


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I wonder why the Court did not release an audiotape of the argument immediately. Did anyone ask? Blakely has to be more important than the detainee cases, for which they immmediately released a recording.

Posted by: Michael Ausbrook | Oct 5, 2004 5:33:00 PM

Justice Breyer is correct. Prosecutors will control everything, including what to charge and what they want to prove. Disparity in sentencing will be as bad or worse than any indeterminate sentencing scheme. I think Breyer is the only Judge on the Supreme Court who knows how the current system works in the real world.

Posted by: Steve | Oct 5, 2004 7:38:22 PM

Another note, where do you all think this time and money is going to come from to call in a jury and have them find beyond a reasonable doubt these aggravating factors happened. If a jury is already here that is one thing, but what about all the pleas (over 95%). Bring in a sentencing jury. That is not going to happen. The federal courts are already stretched to the limit.

Posted by: Steve | Oct 5, 2004 7:49:11 PM

Steve, pleas will go on as usual, as ASUSA's will amend current agreements to include all applicable enhancements. Defendants should know what they're getting into, any way.

Posted by: donw | Oct 5, 2004 10:11:16 PM

Prosecutors will, of course, have great power in any sentencing system. But that fact alone does not justify watering down defendants' rights to demand proof of facts of crimes before punishments are enhanced. There will always be bargained justice, but state guidelines systems have shown that simple sentencing structure can keep the bargains from having too dramatic impact on equitable sentencing even in a charge-based system.

Posted by: Doug B. | Oct 6, 2004 12:29:32 AM

Well put, Don W and Doug B. We all know the prosecutor already has THE control and is the ONLY one who brings the charges and has to prove their case. They ignore evidence all the time to get a plea rather than go to trial. I'm not really sure it's to avoid the expense of trial or to avoid clogging the courts, but whatever the reason, charging is solely at their discretion.

It's time defendants had someone looking out for them and it is important that they know going in what the worst case scenario is as to sentencing before they accept the plea offer. There should be no surprises.

I have talked to several defense attorneys who have told me that USPO always finds something that the AUSA overlooked to boost a sentence. That needs to stop.

Thank you Prof. Berman for outstanding coverage of current events in Blakely. Your efforts are most appreciated.

Posted by: Shelly | Oct 6, 2004 9:42:51 AM

Yes, prosecutors will amend agreements to include enhancements THEY think are applicable, but in reality most prosecutors, as well a CJA panel attorneys/retained counsel, are not that well versed in the guidelines or applicable sentencing case law. Prosecutors will also get defendants to agree to things others would not apply. Frequently, the parties agree to enhancements or not to apply enhancements when in my opinion such does not apply. Many times these things are stipulated to because of inaccurate guideline calculations by the prosecutor and/or defense. Just the other day I was involved in a case where the parties agreed on a certain loss amount and I did not think there was any loss. The judge agreed there was no loss.

Wouldn't you rather have an Article III judge determining what applied rather than some AUSA. I guess we will be recommending that judges reject plea agreements that contain inacurate stipulations or agreements.

In the current system defendants should know a worst case scenerio of what they are getting into under the guidelines. Defendants know what criminal activity they were involved in. Defendants should also know their prior criminal history. If the defendant is honest with his or her attorney the attorney should be able to use that info. as well as discovery to calculate the guidelines and tell a defendant pretty much a worst case scenerio of what they are facing under the guidelines. This would not be the case in an indeterminate sentencing scheme or one that only involved advisory guidelines. In my 14 years of experience in applying the guidelines it is extremely rare when something comes up that completly surprises a defendant. In most cases when it happens it is because both the defense and prosecutor have incorrectly applied the guidelines, not because there is all this information out there no one was aware of that just comes out at sentencing.

Posted by: Steve | Oct 6, 2004 11:06:46 AM

Shelly, probation can't help it if the AUSA or Defense counsel overlooked something and didn't apply the law/guidelines correctly. Are you saying probation is to good at what they do???

Posted by: Steve | Oct 6, 2004 11:09:43 AM

I am troubled by the continuing analysis that balances constitutional rights against dollar signs. The Government's cost to prosecute a defendant constitutionally has ABSOLUTELY NO bearing on whether we citizens possess the right to jury findings beyond a reasonable doubt. I suspect more stringent proof requirements will actually shift many Federal prosecutions back to the States (and their generally
more humane sentencing policies), where this very Supreme Court instructed criminal prosecutions typically belong. See United States v. Lopez, 514 U.S. 549 (1995).

I further respectfully suggest Blakely's Federal application will reduce, not enhance, the United States' plea bargaining power. Currently, USAs can force defendants into the duress decision of losing Acceptance of Responsibility (USSG Sec. 3E1.1) after jury trial or taking the proffered plea, while still facing a preponderance bench trial (the "slow guilty plea") on arguable sentencing facts. If the USSG (as Congressionally-amended) fall, defendants could more confidently than today expect to be punished on proof of culpability, not field agents' insinuations.

With the specifics of criminal culpability (guilt AND punishment) at play in the plea bargaining process, I suggest prosecutors will be forced to charge and prosecute offenses "readily provable" at jury trial and, theoretically, spend fewer resources pleading out low-level conspiracies with eyes on the punishment bench trial. See AG Ashcroft, "Department Policy Concerning Charging Criminal Offenses, Disposition of
Charges, and Sentencing," at 2 (issued September 22, 2003).

Posted by: Jay Hurst | Oct 6, 2004 11:12:08 AM

That would be fine with me if more prosecutions fell to the states and I agree that would probably happen. We have to many lower level cases that are getting pushed through federal court.

Posted by: steve | Oct 6, 2004 11:35:54 AM

Steve, I'm not saying that at all(although I'm sure you're good at what you do), I'm saying as I have contended all along that no one should do time for something of which they have not been convicted--that means "relevant conduct" for the most part, in my book. I have no problem with prior convictions playing a role in sentencing--that goes without saying, state or federal. But I have a problem with, for example, the prosecution coming in later saying they disclosed something to defense they didn't that can be used to increase a sentence. Or some obscure thing coming up in the PSI. Not all things are blatant and obvious or prosecution would know about it (or should). If it's not admitted to in a plea or the defendant is not found guilty of it at trial he/she should not do time for it. I can't say it any plainer than that. I'm sure you're good at what you do, but put yourself in the defendant's shoes for a second. If it was you or your family member you wouldn't want that. I don't know what district you are in but I work in 8th and have discussed your position with several federal defenders (one of whom use to be a prosecutor) who all agree with me that things do crop up through the PSI that were supposedly overlooked by prosecution and no one else would have dreamt would affect a sentence. Trust me, it happens.

And--what about the person who is convicted of or pleads to manufacturing with intent and the amount proven or pled to is in the range of 0-25 grams, but your office finds in reviewing matters that you can attribute more than that to crossing through his hands, you will recommend he do time for the additional, over and above what he was found guilty of. That's not right. If they can't get a conviction or plea, no jail time should apply. There is a case on appeal right now on point.

In your district, if a prosecutor makes a plea offer and recommends 30 months, do you then do your PSI and ask for more time if you find something,and does that stick? If so, what good is a negotiated plea? At least with a jury you have a good shot at appealable error.

Bottom line--no plea or conviction--no jail time.

Posted by: Shelly | Oct 6, 2004 3:21:40 PM

Shelly, in our office we calculate the sentencing range according to the guidelines and applicable case law. After all that, if the guideline range comes up to say 30-37 months and the plea agreement specifically recommends 30 months I would recommend that sentence if I felt it was appropriate, given the defendants background and the nature of the offense. If the defendant had a serious criminal history I probably wouldn't recommend 30 months (low end of range) and may recommend a sentence more toward the upper end of the guideline range or in a very rare occurance an upward departure. In 14 years I have probably only recommended a few upward departures. You must remember that the probation office is an independent investigator and neutral party who works for the court, not for the govt. or defense. Some judges may go with my recommendation and some may not. It just depends on the case and the judge. Neither the court or probation officer is bound by any plea agreement between the parties. All defendants are told this when they enter their plea.

Let me put it this way as well. Say a plea agreement specifically recommends a 30 month sentence and the guideline range I come up with is 21-27 months. Would you still want me to recommmend 30 months? Imposition of a 30 month sentence would be an upward departure if the court accepted my guideline calculations. I bet in this circumstance you would want me to recommend something lower than the agreed upon sentence. In this situation I would recommend something in the 21-27 month range unless there was some aggravating factor not taken into account by the guidelines that should result in an upward departure to the agreed upon 30 month sentence.

I think this is all going to become moot. People I have talked to in Washington and some that were at the oral arguments have told me that the guidelines are going down. However, who knows for sure. One thing to keep in mind is that Congress will step in if the guidelines are found unconstitutional. We will have some guideline sentencing structure in the future. Who knows, we could have moving mandatory minimums where the minimum moved based on certain factors. No top end of range except that set by stature. No departures. Who knows. My feeling is that whatever fix comes our way if the guideline range is struck down will be more punitive than the system we have now.

Posted by: Steve | Oct 6, 2004 5:09:54 PM

Shelly, by the way I am in the 10th Cir.

Posted by: Steve | Oct 6, 2004 8:24:33 PM

The common law mandatory minimum for all felonies (theft of more than one pig and worse) is hanging by the neck until dead.

Posted by: Jay Hurst | Oct 6, 2004 8:37:59 PM

Also Shelly, the case law in all the circuits indicate that if proven by a preponderance that the defendant was involved, whether by himself or jointly with others, he can be held responsible for those additional drugs. That is the law as it stands now. You say there is a case up now on that issue. Well if the guidelines stand, the tacking on of those additional drugs will be affirmed if the preponderance and relevant conduct standards have been met. That has been decided by the circuits years ago.

You mention frequently in your posts a family member that must have been a "victim" of relevant conduct. Was the case appealed? If the relevant conduct and evidence standards didn't apply to him or her it shouldnt have been applied initially and hopefully will be reversed by the circuit. I deal with family members all the time. Make sure your family member is telling you the truth about what he or she was actually involved in. People need to be responsible for their actions. This society anymore has to many people blaming others for their situation.

Posted by: Steve | Oct 6, 2004 8:41:35 PM


I wanted to e-mail you directly, but your e-mail is not working. Feel free to e-mail me if you want. I'd like to get into this in more detail on a one-on-one basis, if you don't mind.


Posted by: Shelly | Oct 7, 2004 6:52:02 PM

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