Sentencing Law and Policy

Acting SG Clement to argue Booker and Fanfan

As noted in this post by the folks at the SCOTUS Blog, Acting Solicitor General Paul Clement (background here) will be arguing for the United States in Booker and Fanfan. I believe this is a bit of news because Deputy Solicitor General Michael Dreeben is reputed to be the "point person" on these cases, and he argued on behalf of the United States as amici in Blakely.

More pre-argument reading (for me)

As I explained in this post, my wonderful research has been helping me back up my blog efforts by creating Word documents of my posts (with imbedded links and a helpful TOC). Though older posts are available here, and "Blakely in the States" posts can be downloaded here, below I now provide my most recent posts in one document complete through October 1:
Download slp_blog_sept_1_to_oct_1.doc

This latest document includes all of the discussion of the briefing in Booker and Fanfan (which I plan to review as I head to Washington DC to hear the arguments). Also, remember that I have assembled here a set of my most recent posts of note.

The SG's chaos strategy

I have suggested here and here that the government's proposed remedy, if Blakely applies to the federal guidelines, seems likely to cause far more chaos than a ruling that the federal guidelines are fully severable. A recent district court decision, US v. McBride, 2004 U.S. Dist. LEXIS 19558 (D. Kan. Sept. 28, 2004), confirms some of my views on this important issue.

In McBride, US District Judge Julie A. Robinson, in addition to writing a thoughtful opinion which details the state of Blakely in the federal courts, carefully and effectively explains how the defendant's sentence would be unchanged even if Blakely applies to the federal system.

First, Judge Robinson explains that the defendant's admissions and the prior conviction exception mean that "even if Blakely extends to the federal sentencing guidelines, this Court can apply the career offender guideline without violating the defendant's Sixth Amendment rights." Second, Judge Robinson explains that, though a Blakely-implicated and factually-disputed gun enhancement was arguably applicable, "whether or not the gun enhancement is applied, application of the career offender guideline results in an increase to Level 34" in the determination of the defendant's offense level.

In other words, if Blakely applies to the guidelines and the guidelines are fully severable, McBride gets no "sentencing windfall" and apparently would have no sentencing issues to appeal. But, the government's position is that the guidelines become completely inoperative and wholly advisory in cases with Blakely factors; that would entail in McBride an initial (appealable?) issue as to whether McBride is or is not a "Blakely case." And if qualifying as a "Blakely case," then the guidelines would be completely inoperative and wholly advisory, and defendant McBride could then argue for a sentence lower — perhaps much lower — than the nearly 22 years he received for his drug offense.

Notably, in an effort to cover all her bases, Judge Robinson did close her McBride opinion by stating: "And, if the federal sentencing guidelines were declared facially invalid, in imposing a sentence under the indeterminate regime predating the Sentence Reform Act, this Court would impose the very sentence it imposes now." This statement might readily lead one to conclude that McBride would get the exact same sentence under the government's theory of severability.

However, under the government's severability theory, I believe McBride would now have a lot of appealable issues: (1) McBride might be able to object (and appeal) that, as a matter of due process, he should have had an opportunity to present evidence on a variety of "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing; (2) McBride could object (and appeal) that Judge Robinson never explained why a 22-year sentence for a relatively minor drug offense constituted a "sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act (which, under the government 's theory, becomes the controlling legal standard for the imposition of sentences under 18 USC 3553(a)).

In the end, I believe the SG's lawyers are all much too smart not to see the many flaws and headaches in the government's own severability arguments. I am now of the belief that the government is simply trying to make the post-Blakely world of federal sentencing seem extremely chaotic in the hope that some member of the Blakely majority might become afraid to apply Blakely to the federal system.

Bench memos, mooting and more questions

I hope to spend this weekend watching important baseball games, a Big Ten battle and perhaps some golf, though I may also take the family to see this Nemo wannabe. But I would guess that SCOTUS clerks may be spending this weekend putting the finishing touches on their Booker/Fanfan bench memos and that counsel are conducting moot courts to help prepare for Monday's big argument.

Though I suggested some pre-argument readings here, it would probably be more helpful to clerks and counsel to return to possible questions for oral argument. Here are a few more kicking around my brain:

To the lawyer for the government: Does your argument that Blakely does not apply to the federal guidelines because Blakely was just an application of Apprendi risk making Blakely fully retroactive to June 2000 for all the states?

To the lawyers for the defendants: What should happen in the thousands of cases "in the pipeline" in which defendants entered pleas before Blakely and in plea agreements acknowledged and agreed to judicial application of the guidelines?

Also, let me note the smart (or at least interesting) question suggested here in the comments to a previous post.

Blakely cases continue making headlines

There is plenty of discussion of Blakely in the many Supreme Court preview articles that are a tradition every year around this time. Interesting recent examples of the genre can be found here and here and here, and many more such articles will surely be appearing over the next few days.

But while most of us focus on the Supreme Court and what it might say Blakely means for federal law, state courts must keep processing cases which seem indisputably impacted by Blakely. Local news stories such as this this piece from Alaska concerning a manslaughter conviction of a child-care worker reinforce that Blakely is such a blockbuster in part because it has a potential impact on so many cases in so many jurisdictions. Relatedly, this article discusses the recent report of the Minnesota Sentencing Guidelines Commission on Blakely's impact on cases in Minnesota (previously discussed here and here).

And, finally, from the "do not believe everything you read department," I chuckled when I saw this article discussing "Blakely v. Washington, a Pennsylvania case that could affect sentencing guidelines." You would think seeing Washington in the case name might have helped the fact-checker on this one.

Pre-argument reading guide

If you've read all the briefs in Booker and Fanfan (or at least the Blakely Blog's synopses), and you are wondering what else to read to prepare for Monday's arguments, I can make a few classic suggestions.

Of course, you could read the entire line of cases culminating in Blakely, which principally includes Almendarez-Torres v. US, 523 U.S. 224 (1998), Jones v. US, 526 U.S. 227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), Harris v. US, 536 U.S. 545 (2002), Ring v. Arizona, 536 U.S. 584 (2002). Helpfully, all these cases (as well as some related others) can be found at this helpful page assembled by the First District Appellate Project.

In addition, I would also recommend a read of the cases which have historically sanctioned the application of lax procedures at sentencing, most particularly Williams v. New York, 337 U.S. 241 (1949), McMillan v. Pennsylvania, 477 U.S. 79 (1986), and US v. Watts, 519 U.S. 148 (1997). Then, for an ineresting contrast, consider reading In re Winship, 397 U.S. 358 (1970).

Finally, though this might require a trip to the library, consider reading the text that helped launch modern sentencing reforms, Judge Marvin Frankel's Criminal Sentences: Law Without Order (1972). Judge Frankel highlighted that sentencing disparities in discretionary sentencing systems were a symptom of the greater disease of "lawlessness in sentencing." He said disparity was the inevitable result of a system that lacked guiding standards and thereby forced each judge to rely upon his or her own individual sense of justice when selecting an offender's sentence. Recognizing that "lawlessness" was the fundamental problem in discretionary sentencing systems, Judge Frankel called for "remedies by lawmaking" — i.e., the development of a "code of penal law" which would "prescribe guidelines for the application and assessment" of "the numerous factors affecting the length or severity of sentences."

Critically, Judge Frankel's classic tome included an entire chapter entitled "The Dubious Process." In this chapter, Judge Frankel noted the absence of significant procedural safeguards in discretionary sentencing decision-making, and he suggested that the lack of procedural regularity contributed to "a wild array of sentencing judgments without any semblance of consistency." Frankel expressed particular concern about how information considered at sentencing was assembled and examined. Judge Frankel lamented that courts at sentencing were relying "for grave decisions . . . upon untested hearsay and rumor," and he expressed concerns that "presentence investigation represents a sudden and total departure from [a court’s usual] fact-gathering procedures," because it provides information that is not "exposed to adversary scrutiny, to rechecking at sources, to cross-examination."

Of course, for your reading pleasure, I now have nearly 500 posts here on the blog (most of which are on Blakely topics). And some recent posts of note are assembled here. And I encourage readers to use the comments to suggest other must-reads.

Making book on Booker and Fanfan timing

Last month I discussed here the need for a quick ruling in Booker and Fanfan and speculated about when we can expect the cases to be decided. I am getting more and more questions of late about timing, and I continue to think mid-November is a reasonable prediction. (Notably, the Minnesota Sentencing Guidelines Commission says in its recent report "the consensus among many in the legal field is that a ruling will be forthcoming by the end of this year.")

Anyone else willing to make guesses in the comments about when Booker and Fanfan will be handed down? I will encourage Howard Bashman, who seems obsessed with bobblehead Supreme Court Justice dolls, to send a bobblehead doll to anyone who gets the date right.

Implementing Blakely

As detailed here, the second special Federal Sentencing Reporter issue on Blakely went off to press this week. And hard copies of the first FSR Blakely issue, detailed here, should be arriving in subscribers' mailboxes any day.

So that must mean it is now time to start posting drafts of pieces which will appear in the third special FSR Blakely issue (cover date December 2004). For your weekend reading pleasure, I today provide two such pieces (and more will likely appear in the coming weeks). First, is an article by Professor Jenia Iontcheva Turner of the SMU Dedman School of Law elegantly titled "Implementing Blakely." This article thoughtfully and comprehensively addresses "what procedures would be needed in a system that both implements Blakely and preserves sentencing guidelines." It also provocatively suggests that:

To give content to the notion of the jury a democratic institution, innovative legislatures could consider going beyond Blakely.... Juries could be entrusted not only with the duty of finding the facts, but also with a greater share of the moral and legal decision-making that underlies sentencing.

Download implementing_blakely.doc

Writing in a somewhat similar vein, federal sentencing practitioner James E. Felman — who was co-chairman of the Practitioners' Advisory Group to the Sentencing Commission and is now co-chair of the ABA Criminal Justice Section's Corrections and Sentencing Committee and a member of the Constitution Project's blue-ribbon Sentencing Initiative noted here — has produced this article addressing "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." (This is a tweaked version of the thoughtful memo he sent to the US Sentencing Commission previously posted here.)

In this piece, Felman argues that a version of "codified guidelines" would, among the reasonably available options, "best accomplishes the policy choices underlying the Sentencing Reform Act:"
Download felman_blakely_article.wpd

Debate wrap-up

I am going to leave discussion of the Presidential debate to other bloggers like TalkLeft here and Instapundit here. But I do want to note that Professor Stephanos Bibas and I have finished a fun week of debating Blakely here as part of the Legal Affairs Debate Club. Stephanos and I agreed more than we disagreed, but I think we were both able to develop some valuable ideas through the debate format. Though I would encourage a review of the whole debate, I want to share here parts of my parting shot:

Legal Affairs asked the question "Can the Court clean up its Blakely mess", but I do not think the Supreme Court should be blamed for "its" mess. As our last few posts highlight, the often misguided efforts of Congress and the U.S. Sentencing Commission are more responsible for the messy state of federal sentencing law that we now have....

I fear we are blaming the messenger when we assail the Supreme Court for making a mess with Blakely. Congress and the Sentencing Commission have created harsh, rigid sentencing laws that many judges rightly complain take the humanity out of the sentencing process. I am not confident that the extension of Blakely to the federal system will bring humanity back to federal sentencing, but I am confident that we should not be troubled by the demolition of a system that is flawed in so many ways. In my view, the Blakely earthquake is to be praised, not cursed, because it may (and should) bring down a federal system which was poorly constructed from the outset. Like you, I fear that Congress's re-building effort might lead to a more grotesque and unjust federal sentencing structure, but I am the eternal optimist when it comes to believing that our leaders will always want to and always try to do better.

So nice to have data

The Minnesota Sentencing Guidelines Commission's report on long-term Blakely recommendations for Minnesota (available here) is a wonderfully rich and insightful document. Though there are many interesting facets of the report, I found most exciting the presence of hard data on the number of Minnesota cases really and clearly impacted by Blakely. As a result, the report confirmed for me the enormous disservice that flows from the US Sentencing Commission's failure to make publically available the data analysis that it has done about Blakely's impact on the federal system (lamented here).

In the Minnesota report, we learn that only roughly 7% of all cases annually in Minnesota involve "aggravated departures" that depend on judicial fact-finding and we also learn that the facts underlying such departures have been contested in only about 1/3 of all departure cases. Put another way, the Minnesota report astutely highlight that significantly lower than the number of cases with Blakely factors in Minnesota is the number of cases with contested Blakely factors. Consequently, the report notes, less that 2.5% of all Minnesota sentencing cases would seem to be directly impacted by Blakely (and, explains the MSGC, even these cases "can be addressed with modifications to [the existing sentencing] procedures").

Without any information coming from the US Sentencing Commission, we can only hazard a guess as to whether the data from the federal system might be in any way comparable. Of course, because judicial fact-finding is essential to upward departures and upward adjustments in the federal system, there is no doubt that a much larger percentage of federal cases involve Blakely factors (although, as noted here, that number has been estimated at the wildly different levels of roughly 20%, 45% and 65%). But again, as the MSGC report highlights, the key issue may not be the total number of cases with Blakely factors, but rather the total number of cases with contested Blakely factors.

As the Solicitor General has stressed, the US Sentencing Commission is supposed to be an independent agency in the Judicial Branch. In service to that role, I sincerely hope the USSC will share the data it does have at least directly with the Supreme Court and with all the parties to the Booker and Fanfan litigation. (I have been wondering lately about the propriety of the USSC, as a Judicial Branch actor, apparently sharing its data ex parte with just one of the litigants in Booker and Fanfan.) Moreover, as the USSC knows, the whole criminal justice world is watching how the federal system is dealing with Blakely; the USSC should be championing the values and importance of transparency and even-handedness in the development and dissemination of sentencing data.

Put simply, the work of Minnesota Sentencing Guidelines Commission has provided an exemplary model of what sentencing commissions can do to help everyone through the Blakely turmoil. I hope other commissions will follow its sterling example, and soon.

Blakely back in the news

With the Booker and Fanfan arguments now only a few days away, the press is back on the Blakely story. Howard Bashman at How Appealing has links here to SCOTUS preview articles that discuss Blakely, as well as an article about the Minnesota Sentencing Guidelines Commission's report (discussed here) and other Blakely commentary. Additional articles of interest previewing the Supreme Court term are here and here.

Appropriately, many SCOTUS preview pieces identify another sentencing case, Roper v. Simmons, in which the High Court will re-examine the constitutionality of the death penalty for offenders who were juveniles when they committed their crimes (discussed here). But most of these preview articles do not realize that another Blakely case is on the horizon: in Shepard v. US, as noted here, the defense bar will be asking the High Court to reconsider the Almendarez-Torres "prior conviction" exception to the Apprendi/Blakely rule.

Minnesota's Long-Term Report

Right on time, the Minnesota Sentencing Guidelines Commission has followed up the short-term recommendations it made to Minnesota Governor Tim Pawlenty in response to Blakely (available here with commentary here and here) with a set of long-term recommendations on Blakely. And the link to the report now seems to be working; the report can be accesed here.

Though I will do substantive commentary on the new Minnesota report in subsequent posts, I want to start by complementing the Minnesota Sentencing Guidelines Commission for its thoughtful and balanced discussion of legal issues and also its obvious effort to present data in a public and accessible manner for lawyers, policy-makers, researchers and other interested observers. Sadly, though the federal sentencing system is in dire need of thoughtful and balanced data-driven analysis, the US Sentencing Commission has not been as effective in publically analyzing Blakely and its impact (as lamented here and here). Once again, the federal system would benefit from following Minnesota's lead.

Helpfully, this latest Minnesota SG Commission report includes at various points a discussion of Blakely that should be of great interest to persons working outside of The North Star State. Particularly insightful are some of these passages from the report's conclusion:

The level of chaos surrounding the Blakely decision is determined in part on the structure of an individual state’s sentencing system. When sentencing enhancements are an integral part of the sentencing structure, such as with the Federal Sentencing Guidelines, the impact is much more significant and difficult to remedy. To add to the confusion of the last three months, the two cases pending before the U.S. Supreme Court, Booker and Fanfan create even more apprehension as to what the outcome of those decisions may have on sentencing policies.

The Commission's analysis of the Blakely decision on sentencing in Minnesota indicates that there is limited impact. The sentencing guidelines remain constitutional, as do aggravated departures. The current procedure for imposing aggravated departures requires some modification to address the constitutional issues raised in Blakely, but the modifications are not extensive or far reaching, especially given the limited number of cases each year that receive aggravated departure sentences. In addition, there are a limited number of sentencing provisions or procedures that need to be modified or amended, but the majority of the modifications focus on language changes, amending forms or modifying trial procedures. The basic structure of the state's sentencing system remains intact and continues to provide for sentences that promote public safety and hold the defendant accountable, while ensuring the constitutional rights of the defendant are protected....

Although the recommendations presented in this report carry no legal force, they do provide a road map for the state with regard to sentencing policies and practices as both the state and federal courts work through the numerous issues surrounding the Blakely decision. If the state approaches the issues raised in the recent decision in a rational and methodical manner, the disruption and impact to the criminal justice system will be held to a tolerable level.

Off-line for a while

I am about to head out (and thus be off-line) for the day to attend an OSU alumni event in Cleveland. (I am reminded of one of my favorite lines from my favorite movie, "Hello Cleveland!" Of course, as you all already know, this site goes to 11.)

To read while I am away, I was hoping to have the Minnesota Sentencing Guidelines Commission's Long-Term recommendations on Blakely, which this MSGC website says is now available. But I cannot get the link to work. Oh well, I hope I can post a working link upon my return.

In the meantime, I have been thinking of late about questions I might ask counsel at oral argument were I a Justice. Perhaps readers have also been thinking about such things and while I am away folks can use the comments to suggest questions they would like to hear asked at argument. I'll start:

To the lawyer for the government: How many indictments have been Blakely-ized nationwide since June 24?

To the lawyers for the defendants: Do federal judges have authority to convene sentencing juries in the absence of congressional approval?

Why I am optimistic about sentencing reforms

Today's thoughtful WSJ article (discussed here) highlighting the real risk of a congressional "mandatory minimum backlash" after Blakely provides yet another reason to be pessimistic about the future of federal sentencing. (For one example of such pessimism, see Professor Bibas' final Tuesday entry here in our on-going Blakely debate over at Legal Affairs.)

But every time I check my e-mail, I learn about amazing new organizations and efforts seeking to ensure that our elected representatives in Congress will properly focus upon sound sentencing policy rather than political rhetoric. I noted one such organization earlier this week here, and I was pleased to see that this report from Justice at Stake included a long section explaining why "the politics of crime are changing [due to] seven political factors emerging as part of a backlash against decades of one-size-fits-all crime policy."

More encouraging news arrived today when I was alerted to the work of Watching Justice, a relatively new nonpartisan website that monitors the activities of the Department of Justice to provide an overview of justice-related policy issues. As noted here, earlier this month Watching Justice co-sponsored a major event entitled "Blakely, the Kennedy Commission, and Beyond" with The Constitution Project. More details about that event and an audio link can be found here.

And speaking of the Constitution Project, today I also got sent a copy of this press release indicating that the Constitution Project has finalized the formation of its new Sentencing Initiative, a "guided by a bipartisan blue-ribbon committee of distinguished legal experts, which will examine state and federal sentencing systems and offer recommendations for reform."

According to the press release, "the Initiative's committee will be co-chaired by Edwin Meese III, Attorney General under President Reagan, and Philip Heymann, Deputy Attorney General under President Clinton." I must here proudly note that Phil Heymann was my professor in my first-year Criminal Law class at Harvard Law School, and also note that other members of the truly amazing blue-ribbon committee include my former boss (Judge Jon Newman, US Court of Appeals, 2nd Circuit), a casebook co-author (Ronald Wright, Professor of Law, Wake Forest Law School), and an FSR co-editor (Frank Bowman, Professor of Law, Indiana University-Indianapolis School of Law).

With all of these amazing organization and individuals working so hard on making the sentencing world better, how can anyone possibly be pessimistic?

Interesting Blakely views

This morning I came across two interesting opinion pieces relating to Blakely. First, in this editorial from the Seattle Times concerning an election for an open seat on the Washington Supreme Court, there was this fascinating Blakely-related passage:

[Candidate Jim] Johnson is a strict constructionist, and would be more likely than [rival Mary Kay] Becker to invoke the Constitution to strike down a law. Becker, the former legislator, says, "One of the rules we follow is, you don't reach for the Constitution right off the bat." She stresses that the court's decisions have to be practical, so that people can live with them.

Despite this difference, Johnson and Becker both support the U.S. Supreme Court's Blakely decision. There, the court said that in sentencing a felon, a judge could not add three years for cruelty if the cruelty had not been proven to a jury. "The right of trial by jury is fundamental," Becker said. "Those might sound like 'liberal' sentiments, but they are really also conservative."

Meanwhile, on the other side of the country, according to this story coming from Duke University, esteemed Duke University Law Professor Erwin Chemerinsky says Justice Stephen Breyer should recuse himself from Booker and Fanfan:

"There's no doubt that Stephen Breyer is one of the 'parents' of the federal sentencing guidelines," said Chemerinsky.... "When he was the Chief Counsel to the Senate Judiciary Committee, he played a key role with regard to the Sentencing Reform Act [passed in 1984], which created the Sentencing Commission that created the guidelines. Justice Breyer was also on the first Sentencing Commission that created the guidelines in the very structure at issue in these cases, though by that time he was a First Circuit judge. Should a justice who played such a key role in developing the sentencing guidelines now participate in considering their constitutionality?

"My own opinion is that he should recuse himself," said Chemerinksy, who has two cases currently on the Court's docket, as counsel and co-counsel. "I don't think a member of Congress who participated in sponsoring a bill or drafting legislation should then, on the federal court, rule on the constitutionality of that, and I think Justice Breyer is in the same position."

Many thanks to Professor Paul Caron, of TaxProf Blog fame, for the pointer to the Chemerinksy article.

The WSJ does it again

Establishing itself as the premier newspaper covering the federal sentencing system at this historic moment (see, e.g., articles from last week here and here), the Wall Street Journal has another fantastic article about Blakely and the feared "mandatory minimum backlash" that could come from Congress.

The article (only available to subscribers) by Laurie Cohen and Gary Fields, which is entitled "Mandatory Sentences Loom as Issue" and has the subtitle "Ahead of Supreme Court Session, All 3 Branches of Government Jockey Over Control of System," captures the moment this way:

[The Blakely] ruling has left lawyers, judges and legislators uncertain about the validity of federal sentencing guidelines. It also has prompted speculation that Congress will impose mandatory sentences for a raft of crimes, from minor offenses to major felonies, leaving judges no latitude to allow for individual circumstances.

The article goes on to discuss the new mandatory sentencing bill working its way through Congress (discussed here), the efforts by the Justice Department to praise mandatory minimums through local papers across the nation (discussed here), and the work of Judge Cassell in the Angelos case (discussed here). The article also includes this insightful graphic about how many federal convictions are subject to mandatory minimum sentences and also some of the key provisions of the new mandatories proposed in the House bill (click on the image to see it more clearly).

Sentenced for an uncharged murder

In his opinion for the majority in Blakely, Justice Scalia assails the notion that the Sixth Amendment could mean that a "jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge." The problem, explains Justice Scalia, is that this "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it — or of making an illegal lane change while fleeing the death scene."

Though this passage expressing concern about punishing for an uncharged murder might seem like just Scalia rhetoric, I just noticed a decision a few weeks ago in US v. Vernier, 2004 WL 2110413 (S.D. Fla. Sept. 17, 2004), which documents that defendants in federal court can and do get punished for uncharged murders. Vernier involves a sad case of the kidnapping, robbing and possible murder of victim Ron Mesika after he picked up defendant Jonathan Vernier as a hitchhiker. (The facts of the case remind me of the disturbing hitchhiker episode on HBO's Six Feet Under, which this article explains was nicknamed by producers as "the departure episode"!)

Though the case's facts would seem to have (and should have?) supported a lot of very serious criminal charges, defendant Vernier was allowed to plead guilty to two relatively minor counts for the fraudulent withdrawal of money from the victim's credit card, and for the interstate transportation of stolen goods and money. I can only speculate as to why defendant Vernier was allowed to plead guilty to these lesser charges, though the fact that Ron Mesika's body has never been found perhaps explains the outcome.

As explained by the sentencing court, under the applicable federal guidelines for the offenses to which he pled guilty, "Vernier would normally be sentenced for an offense level of 17 and receive 51 to 63 months imprisonment." But, based on evidence presented at sentencing, the Court "finds the evidence sufficient that Vernier was responsible for Mesika's death and grants the government's motion for upward departure, bringing Vernier's offense level to 32, resulting in an imprisonment range of 210-240 months," the maximum sentence available under the offenses to which Vernier pled guilty. In justifying this departure, the sentencing court cites McMillan, Williams and Harris and also notes a number of other cases in which federal sentencing courts enhanced sentences relying on "circumstantial evidence [which] showed by a preponderance of the evidence" that a defendant was involved in a killing, even though "there were no convictions and no body recovered."

In the concluding section of his thoughtful and obviously heartfelt decision, US District Judge Shelby Highsmith explains the essence of his ruling and drops a footnote with reference to Blakely:

The circumstances surrounding Vernier's charged crimes, specifically the abundance of evidence pointing to the brutal killing of Ran Mesika by Vernier, sufficiently take this case outside the heartland of typical theft cases falling under § 2B1.1. Failure to recover Mesika's body does not preclude this Court's determination that Vernier is responsible for Mesika's death. The evidence clearly shows — based on the presence of Mesika's blood splattered on the windows, door, and roof of the van, Mesika's blood and tissue found on the tire iron, the attempt to use the cleaning agents to hide this evidence afterwards, and the impunity with which Vernier used Mesika's credit card without worrying about the consequences — that Vernier murdered Mesika. Therefore, considering the unique and aggravating circumstances of the heinous crime perpetrated by the Defendant, this Court GRANTS the government's motion for upward departure and hereby sentences the Defendant to 210 months, as specified in this Court's Amended Judgment.[FN1]

FN1. When this Court imposed sentence on May 10, 2004, the United States Supreme Court had yet to issue its decision in Blakely v. Washington, 124 S.Ct. 2531 (2004). Recognizing that this decision may impact this Court's sentence, this Court entered an Order on July 27, 2004 directing the parties to file briefs addressing the issue on how Blakely affected this Court's Judgment. While the parties disagreed on Blakely's impact, both parties agreed (and this Court concurs) that the ultimate arbiter of Blakely's impact on this Court's Judgment is the United States Court of Appeals for the Eleventh Circuit. This Court sincerely hopes that the Eleventh Circuit, after examining the totality of circumstances surrounding Mesika's horrific and untimely death, will uphold this Court's Judgment, which was only entered after much thought and reflection. This Court acknowledges that its upward departure and sentence may appear, at first glance, to be extreme. But this Court is also convinced that they are just.

So much could be said about this sad and disturbing case, and it does provide a chilling example of who might get a sentencing windfall from Blakely and why we might want to rely on an administrative rather than an adversarial system of sentencing justice.

But what troubles me most about this case is why the defendant was allowed to plead guilty to such relatively minor charges when, in Judge Highsmith's words, the "evidence clearly shows ... that Vernier murdered Mesika." If there indeed was "abundance of evidence pointing to the brutal killing of Ran Mesika by Vernier," why isn't Vernier facing sentencing on a murder charge?

The decision to allow Vernier to plead out to lesser charges capped his sentence at 20 years for a crime that, according to this LA Times Article, Attorney General John Ashcroft might have wanted pursued as a federal death penalty case. The case thus reinforces my worry that we should be more concerned with the sentencing windfalls handed out by prosecutors than those that might result from a serious commitment to the Sixth Amendment.

The First Circuit on prior convictions and plain error

The First Circuit yesterday continued its traditional of saying a lot about Blakely — and rejecting Blakely claims — without making a direct ruling on Blakely's applicability to the federal guidelines (previous examples are here and here and here). In US v. Cordoza-Estrada, 2004 WL 2179594(1st Cir. Sept. 29, 2004), the Court rejected a Blakely claim relying on both the prior conviction exception and on "plain error" doctrine:

Blakely did not disturb the distinction between "the fact of a prior conviction" and other facts that "increase the penalty for a crime beyond a prescribed maximum." Blakely, 124 S.Ct. at 2536 (quoting and applying the Apprendi rule stated above). Accordingly, there was no error in the trial judge's consideration of the prior conviction. Even if there were such an error, Appellant has failed to demonstrate that it affected substantial rights of his because there is no dispute that he had a conviction....

Appellant has also launched a broadside attack on the validity of the Sentencing Guidelines under the Sixth Amendment. Even if the Sentencing Guidelines as a whole are ultimately declared invalid, we must decide whether any error in applying them was "plain."...

In determining whether the error was plain, the Supreme Court has explained: "Where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be 'plain' at the time of appellate consideration." Johnson v. United States, 520 U.S. 461, 468 (1997). The question of the continuing validity of the Sentencing Guidelines is an issue that has roiled the federal courts, and split circuits. [Citing Booker, Hammoud, and Koch]. Whatever the outcome, the answer is neither plain nor obvious at the time of this appeal.

Because the trial judge's sentence was consistent with precedent, and the current law is unsettled, we conclude that there is no plain error.

Still more from California

As I highlighted before here, from California it is one Eureka moment after another on Blakely.

Already this weak there have been two more interesting and important cases from the biggest state (which has this interesting state seal).

In the unpublished People v. Herod, 2004 WL 2163532 (Cal. App. 2 Dist. Sept. 28, 2004), the court finds that Blakely applies to California determinate sentencing law, and then concludes that "facts relied on by the court to impose the upper term, while proper bases for an upper term, were not found true by the jury, nor were they admitted by appellant. Under Blakely, use of these facts to impose the upper term does not comply with the Sixth Amendment, resulting in an invalid sentence." But thereafter the court goes on to explain:

We reach a different conclusion as to the imposition of consecutive rather than concurrent sentences for the robbery counts, which involved separate crimes on separate occasions against separate victims.... The decision to impose a consecutive rather than concurrent sentence involves the cumulation of penalties for multiple crimes. The trial court is not required to make factual findings to support a decision to impose consecutive terms.

In the published People v. Butler, 2004 WL 2153559 (Cal. App. 1st Dist. Sept. 27, 2004), the court makes a finding of no waiver and then says the sentencing court "violated Blakely because four of the aggravating factors that it articulated ... did not relate to a prior conviction and ... were additional findings made by the court rather than by a jury." But then the court concludes that reversal was not required because appellant did not challenge the one prior-conviction-based aggravating factor and thus the same sentence was likely to be imposed. And in so doing, the Butler court also said: "We recognize that, in some cases, extrinsic facts relating to a recidivist aggravating circumstance may implicate Apprendi."

Helpfully, the fine folks at the First District Appellate Project have this terrific page which is tracking all the California happenings quite effectively.

UPDATE: Before the "ink" was even dry on this post, out comes People v. Armstrong, 2004 WL 2180926 (Cal. App. 2 Dist. Sept. 29, 2004), which concludes "Blakely requires reversal of defendants' upper term sentences and resentencing on those counts" and People v. Magdaleno, 2004 WL 2181412 (Cal. App. 2 Dist. Sept. 29, 2004), which holds that "neither Blakely nor Apprendi create the right to a jury trial on the determination as to whether to impose consecutive sentences."

Fascinating (non-Blakely!!) Ohio decision

Today Ohio continued its recent trend (noted here and here) of being a very interesting sentencing state when the Ohio Supreme Court handed down its decision in State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888 (Sept. 29, 2004) (available here). The case involves the sentencing of a defendant who pled guilty to "two counts of nonsupport ...., a fifth-degree felony." And the decision's opening paragraph, written by (Ohio State College of Law alum) Chief Justice Thomas Moyer, gives you the essentials:

Appellant, Sean Talty, challenges the imposition of a condition of community control that ordered him to make "all reasonable efforts to avoid conceiving another child" during his five-year probationary period. Because we hold that the antiprocreation order is overbroad, we vacate that portion of the trial court’s sentencing order.

Significantly, the majority of the Ohio Supreme Court in Talty, while recognizing that an antiprocreation order raises serious constitutional issues, decides the cases on state law/statutory grounds:

[W]e hold that the antiprocreation order is overbroad under Jones, 49 Ohio St.3d at 52, 550 N.E.2d 469, and vacate that portion of the trial court’s sentencing order. Given our disposition, we need not address Talty’s constitutional and remaining nonconstitutional challenges to the antiprocreation condition.

Notably, two of the seven Justices of the Ohio Supreme Court dissented. Justice Paul Pfeifer (also an Ohio State College of Law alum) has this to say:

Talty was ordered to "make all reasonable efforts" to avoid fathering another child. I consider this sanction appropriate, or reasonable, and proportionate, under the egregious circumstances of this case because the sanction relates directly to the crime of which Talty was convicted and is tailored to prevent even more instances of felony nonsupport. Given Talty's propensity to sire children, the antiprocreation condition must also be considered in the nature of punishment.

Hoosier handling of Blakely issues

A few Hoosier FOBs ("friends of blog") sent me news of interesting developments from Indiana which reveal ways in which state courts are adapting procedurally and substantively to the "Blakely earthquake."

One Hoosier reported that the Indiana "state judges had a recent conference during which Blakely was discussed [and a] 'Blakely Procedure' memo is apparently the result in Howard County." That memo, which can be downloaded below, seems to provide for jury trials to have a "second sentencing phase" and also says a "court shall not accept a plea of guilty without first determining that the defendant has been informed that by pleading guilty, the defendant waives the right to have a jury determine the aggravating circumstances."
Download indiana_blakely_procedure.pdf

In addition, yesterday the Indiana Court of Appeals handed down Bledsoe v. State, No. 49A05-0311-CR-586 (Ind. App. Ct. Sept. 28, 2004) (available here). In Bledsoe, the court gives the "prior conviction" exception a broad reading to avoid having to reverse an "enhanced sentence:"

Bledsoe asks this court to find — pursuant to Blakely — that his sentence violated his Sixth Amendment right to have the facts supporting the enhancement of his sentence tried to a jury.... In this instance, Bledsoe acknowledges that the trial court sentenced him to twelve years — two years beyond the presumptive — for committing the offense of burglary as a class B felony. In so doing, the trial court relied upon Bledsoe's prior criminal history, noted that his rehabilitation could only occur in a penal institution, that he was on probation at the time of the offense, and that the trial court believed that Bledsoe would continue to engage in criminal activities. [P]rior convictions shown by a defendant's criminal history are exempt from the Apprendi rule as clarified by Blakely [and] the remaining aggravating circumstances in Bledsoe's case merely derive from his criminal history. Thus, the Blakely analysis is not implicated. Finally, there is no indication that Bledsoe objected to the contents of the pre-sentence investigation report.

In any event, it has been determined that a single aggravating circumstance will justify a sentence enhancement. That said, even if our supreme court were to find that Indiana's sentencing scheme runs afoul of the Sixth Amendment for the reasons that were articulated in Blakely, such a determination would have no effect on Bledsoe's sentence.

A judicious judicial "amicus"

I know I am biased, but it seems that judges who used to be law professors do the most amazing sentencing work these days. (Realize that many authors of some of the most interesting and important Blakely decisions — including Judges Cassell, Easterbrook, Gertner, Posner, Sutton, Wilkinson (and, of course, Justices Scalia and Breyer) — once did or still do teach at a law school. And this list likely overlooks some other great judges/professors who have written on Blakely.)

Continuing this trend, former Columbia Law Professor Gerard Lynch, who was a an intellectual leader in the field of sentencing even before becoming a judge, has followed up his work in US v. Emmenegger (available here with commentary here), with what is another humdinger in US v. Jackson, 2004 U.S. Dist. LEXIS 19219 (Sept. 22, 2004).

Judge Lynch's analysis and commentary in Jackson is too sophisticated and nuanced to briefly summarize here. But through the quotes below, readers should get a sense of why Jackson is a must read. Indeed, as suggested by the title of this post and revealed in the following snippets, Jackson really serves as yet another "amicus brief" for the Supreme Court as it tries to sort through all the issues it faces in Booker and Fanfan:

This case presents sentencing issues that demonstrate the occasional complexity of the federal Sentencing Guidelines. Although the intricacies of the guideline application here are interesting and significant in themselves, the case also illustrates aspects of the Guidelines that are of crucial relevance to both the constitutional questions currently under consideration by the Supreme Court, and to questions of sentencing policy that should be of concern to the Commission and the Congress....

The guideline calculation in this case illustrates both the complexity of the system that follows from its excessive detail and the constitutional awkwardness of at least certain provisions of the Guidelines that require sentencing judges in effect to declare defendants guilty of crimes of which they have not been convicted by a jury. At the same time, the case illustrates why simplistic analysis of "the constitutionality of the Guidelines in light of Blakely," which purports to find the entire system unconstitutional, radically oversimplifies a complicated and diverse sentencing system which in many of its aspects presents no constitutional difficulties at all.

Jackson is noteworthy in part because, as Judge Lynch explains, the applicable guideline "apparently requires the Court to consider whether he is guilty of the far more serious offense of attempted first-degree murder, an offense with which he has never been charged, let alone convicted by a jury." It is also noteworthy because it highlights the operation and availability of upward departures in a way which shows that such departures may be a key mechanism for avoiding "sentencing windfalls" (as suggested here).

Another FSR Blakely issue heading to press

I am pleased to report that I have now finalized the final edits on the second Federal Sentencing Reporter issue covering Blakely. (Details on the first FSR Blakely issue can be found here). This FSR issue is entitled "Considering the Post-Blakely World," and you can here download the cover (which reflects exact page numbers for articles which have heretofore only been "forthcoming"):
Download fsr_blakely_171_cover.pdf

At this link you can order a subscription to, or individual issues of, the Federal Sentencing Reporter. And though much prettier on the dowloadable cover, here is a handy list of the contents of the "Considering the Post-Blakely World:"

EDITOR'S OBSERVATIONS
Frank O. Bowman, III, Function Over Formalism: A Provisional Theory of the Constitutional Law of Crime and Punishment

ARTICLES
Albert W. Alschuler, To Sever or not to Sever? Why Blakely Requires Action by Congress
Steven L. Chanenson, Hoist with their Own Petard?
Larry Kupers, Proposal for a Viable Federal Sentencing Scheme in the Wake ofBlakely v. Washington
Jane L. McClellan & Jon M. Sands, The Hedgehog, The Fox, and the Guidelines: Blakely's Possible Implications for the "Safety Valve"
Aaron Rappaport, What the Supreme Court Should Do: Save Sentencing Reform, Gut the Guidelines
Ian Weinstein & Nathaniel Z. Marmur, Federal Sentencing During the Interregnum: Defense Practice as the Blakely Dust Settles

PRIMARY MATERIALS
Jon Wool & Don Stemen, Aggravated Sentencing: Blakely v. Washington -- Practical Implications for State Sentencing Systems (Aug. 2004)
Rory K. Little & Teresa Chen, The Lost History of Apprendi and the Blakely Petition for Rehearing
Minnesota Sentencing Guidelines Commission, The Impact of Blakely v. Washington on Sentencing in Minnesota (Short-term report Aug. 2004)

Debate Club and more resources

The fine folks at Legal Affairs were kind enough to invite me to participate in their Debate Club this week. As you can see here, the focus this week is on the question "Can the Court clean up its Blakely mess?" I have the great pleasure of sharing the virtual podium with my good friend Professor Stephanos Bibas, whose Yale Law Journal article on Apprendi was a topic of grand debate between Justice Scalia and Breyer in Blakely.

Though I realize that the Rules of Fight Club twice mandate that "You do not talk about Fight Club," I am pretty sure that the Rules of Debate Club are all about talking. And Stephanos and I are already talking up a storm. I have an entry expanding upon points I made here linking Blakely and theories of punishment, and I am sure lots of other ideas (both old and new) will find their way into the debate throughout the week.

Also, for the truly hard-core Blakely junkies, I have created (with the help of the fine tech folks at The Ohio State Univesity Moritz College of Law) a separate Blakely Basics resource page here. Among other items of interest, you can find on the page here a list of recent blog posts of note.

Who will be getting "sentencing windfalls"?

In late July, I lamented here the failure of the US Sentencing Commission to take a leading role in the post-Blakely policy conversation about the future of federal sentencing. And, as detailed here, I was discouraged to see from the Acting Solicitor General's reply brief that the USSC is providing critical information about how many federal cases involve Blakely factors to DOJ and the SG without making that information publically available.

Rather than continue to bemoan these realities, I now want to focus my attention on the single data issue that seems most important to me on the issue of severability — namely, who would be getting "sentencing windfalls" if the guidelines are deemed severable? Of course, I have explained here and here that I am more concerned about lowered sentences if the guidelines are made wholly advisory than if they are severable. Part of what drives that instinct is my sense that the vast majority of federal offenses involve drug crimes or immigration offenses — offenses which (1) most federal judges believe are sentenced much too harshly under the existing guidelines and (2) involve offenders with many mitigating personal circumstances that the existing guidelines now declare irrelevant.

Let's look briefly at some of the numbers. According to publically available USSC data here, roughly 60% of the federal criminal case load involves drug offenses or immigration offenses. And this chart shows that, in roughly 70% of all drug cases and about half of all immigration cases, the defendant was sentenced at the absolute bottom of the applicable guideline range. Though this data could be interpreted in many ways, it does not seem unreasonable to speculate that in many of these cases sentencing judges freed from guideline constraints would be eager to go below (perhaps well below) the sentences now mandated by the guidelines. Indeed, the Ninth Circuit case discussed here provides a good example of how much more lenient a sentencing judge wanted to be in an immigration case if the guidelines had not served as a legal limit on leniency.

Of course, despite the fact that the federal criminal justice system is mostly about drug offenders and immigration offenses, my sense is that the SG and DOJ have their focus on a different (much smaller) class of federal offenders. Specifically, in comments to this post, "a government lawyer" says "there are defendants who swindled grandma & her friends out of $5 million who are looking at 6 month maximums." As this comment reveals, it seems that the government's true concern about "sentencing windfalls" comes in the context of fraud cases.

But, as Professor Frank Bowman highlighted here in USSC testimony last year, there is "a predominance of low-level, low-loss cases in the federal system." Most federal defendants are sentenced in fraud cases for losses caused of less than $40,000. I am sure there are a few cases of defendants "who swindled grandma & her friends out of $5 million," but is there really likely to be more than a handful of these cases in the pipeline? And is it worthwhile to jettison the entire guideline structure, and to allow thousands of drug and immigration offenders a chance at much lower sentences, simply to "save" that handful of cases (especially when, as I suggested here, upward departures might be available to avoid true sentencing windfalls in these cases)?

Of course, all my low-rent data analysis might be washed up here. But that is why I want to see, and have publically available, the more sophisticated work that the experts at the US Sentencing Commission must be doing.

Gearing up for SCOTUS oral argument

Yesterday the Supreme Court issued this intriguing order concerning oral argument time in Booker and Fanfan:

The motion of respondents for divided argument is granted. Each counsel must be prepared to discuss both questions presented. The motion of Ad Hoc Group of Former Judges for leave to participate in oral argument as amici curiae and for divided argument is denied.

Thus, Judge Martin will not have a chance to expound upon his strange claim (discussed here) that the federal guidelines are "more analogous to the traditional indeterminate scheme" than to the guidelines system at issue in Blakely.

Meanwhile, Tony Mauro has a very interesting preview article (available here with subscription) at law.com entitled "Sentencing Tops High Court's New Term." The article includes a robust debate between legal ethics Professors Monroe Freedman and Steven Lubet about whether Justice Breyer ought to recuse himself because he helped to draft the federal sentencing guidelines as a member of the original US Sentencing Commission.

In addition, showing what a good reporter he is, Tony was able to "force" me and former SG Kenneth Starr to make these predictions about the likely outcome in Booker and Fanfan:

"The five justices in the Blakely majority really believe in it," says Berman. "It would be a stunning about-face if any of them said it does not apply to the federal guidelines."...

But former Solicitor General Kenneth Starr thinks the Court will recoil at the prospect of the turmoil such an outcome would trigger, with issues such as retroactivity likely to result in hundreds or thousands of sentencing appeals.

"This Court tends not to like disruptive movements," says Starr, now dean of Pepperdine University School of Law. Starr predicts a majority of the Court will find a way to uphold the federal guidelines.

Though I am not inclined to question the informed insights of a former SG, I cannot help but have two reactions to Ken Starr's comments: (1) how do we explain the Blakely decision itself if the Court does not like "disruptive movements"? and (2) does he and others realize, as I explained here, that the SG's proposed argument for upholding the federal guidelines could actually be a more disruptive and tumultuous ruling because of its impact on the retroactive application of Blakely in the states.

Re-stating the state of the states

As we continue to gear up for all the federal fun in Booker and Fanfan, the states keep chugging along with Blakely. For example, Marcia Oddi at the Indiana Law Blog reported here yesterday that the Indiana Supreme Court has now docketed two Blakely cases and provided for consolidated oral argument on November 10th. The two cases are Heath v. State and Smylie v. State; a great Indiana correspondent reports that "Heath is pretty run-of-the-mill, to the extent that anything can be in current situation. Smylie will raise the issue of Blakely and consecutive sentences."

Meanwhile, my wonderful research assistant — who previously created here downloadable copies of all the text of this blog (through Sept. 15) — has now produced a distinct document which assembles just the posts I have done on Blakely's impact and application in the states. Of great help, the Word document includes imbedded links and a Table of Contents to make it easier to see which states have been most Blakely active:
Download blog_posts_on_blakely_in_the_states.doc

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?

Please, please share your data USSC

I have a lot to say about the reply brief filed today by the Acting Solicitor General in Booker and Fanfan, and I hope to comment at length about the substance of the brief in future posts. But I have to note one fascinating, and disconcerting, representation in the SG's reply brief concerning the number of cases that involve Blakely factors.

As highlighted here, I have long been wondering about exactly how many federal cases involve Blakely factors; this seems like a very important fact for many reasons. Critically, last week, the Wall Street Journal reported (as noted here) that, "according to a U.S. Sentencing Commission internal memo," "[m]ore than 44% of all cases in 2002" involved Blakely factors. But we hear a quite different story on page 19 of the SG's reply brief:

The Sentencing Commission advises that, based on staff analysis of 2002 statistics, approximately 65% of federal criminal cases are projected to involve the application of sentence-enhancing Guidelines factors.

And two months ago a US Sentencing Commissioner was quoted (as noted here) saying that only 20% of all federal cases involve Blakely factors.

Whatever the reality, I really wish the USSC would share the data it has assembled in its "internal memo" with the rest of the world ASAP. I suppose I am glad to hear that the press, and not just DOJ, gets access to US Sentencing Commission data analysis, but how about the rest of us? Needless to say, the work of the defense lawyers who filed briefs last week might have been enhanced, to everyone's benefit, if all counsel in Booker and Fanfan had access to this information.

Especially since the number of Blakely-impacted cases is a very important issue, and one that the Wall Street Journal and the Acting Solicitor General apparently assess quite differently, it would be helpful if the USSC would at this critical time make its work public. I trust the USSC has nothing to hide and that many benefits would flow from having this information publically available.

Downward departures, Koon and Blakely

The West merits some sort of award for being the most interesting arena for sentencing developments these days. (Consider news here and here from California alone, and then throw in Judge Cassell's work in Utah and Blakely happenings in Oregon and Colorado). And, of course, thoughtful readers of the blog perhaps now realize that I think the Ninth Circuit in Ameline (details here) has been the closest to getting Blakely "right" for the federal system.

Today, the Ninth Circuit today issued this order and amended opinion in US v. Rivas-Gonzalez, an interesting case (from Montana) in which the district court downward departed "by eight levels (from seventeen to nine), which even exceeded by three levels the degree of departure that Rivas had requested" based on "cultural assimilation." The Ninth Circuit reversed this downward departure in a pre-Blakely decision, and today's action only slightly amended the decision and reported on the circuit's decision not to go en banc.

The case is interesting on the facts, especially in light of my recent posts here and here about sentencing windfalls and the possibility that purely advisory guidelines might create lower overall sentences. In addition, the dissents by Judges Pregerson and Wardlow contain interesting discussions of the Supreme Court's decision in Koon v. US, 518 U.S. 1 (1996), and departure decision-making, and Judge Pregerson's dissent for three judges also has a very interesting footnote about the possible impact of Booker and Fanfan.

The SG's Reply Brief

Now just, in the SG's reply brief in Booker and Fanfan. Commentary to follow (probably in the wee hours of the night).

Happy reading:
Download doj_reply_brief.pdf

The Eighth Circuit and Judge Cassell at work

With many thanks to many friends of the blog, I have received two interesting orders this afternoon. The first comes from the Eighth Circuit, and its "Administrative Order Regarding Blakely Cases" provides more evidence of the on-going waiting game as Booker and Fanfan get briefed for the Supreme Court. (Details about the waiting game can be found here and here and here.)

The Eighth Circuit, which in late July and early August was the setting for Blakely fireworks as detailed here and here and here and here, has now made official through this order that it will not set a date for the rehearings en banc in Mooney and Pirani (links above) "until after the Supreme Court issues its decisions in Booker and Fanfan." The order, which can be downloaded here, also creates administrative procedures "[i]n order to assure consistency and timeliness in the processing of direct criminal appeals involving cases that may have issues potentially impacted by Blakely during the period of time until the Supreme Court of the United States issues its opinions in Booker and Fanfan."
Download 8th_cir_blakely_order.pdf

In addition, I also received today a copy of an order issued late last week by Judge Cassell in the Angelos mandatory minimums case (discussed here and here). In the order, which can be downloaded below, Judge Cassell provides some preliminary analysis on parole eligibility issues in federal law, and he asks for additional briefing from the government this week if the government disagrees with any of his analysis.
Download angelos_briefing_order.pdf

Justice at Stake?

When trying to justify to others all the time I spend obsessing over Blakely, I often contend that the issues implicated by the case — and by sentencing reform more generally — transcend the criminal justice system. I am pleased to discover that the group Justice at Stake — a nonpartisan partnership of more than 40 legal and civic groups, including the ABA, the American Judicature Society, the National Center for State Courts & the Constitution Project — agrees with me about the broader importance of all these issues.

The folks at Justice at Stake have informed me that, as part of their efforts to "help keep courts fair and impartial, and to protect the independence of the judiciary," they been following Blakely and the policy debates it has triggered. To that end, they have just released a brief report entitled "Courts…or Calculators? The Role of Courts in Criminal Sentencing" (available here) that reviews the revived political debates surrounding sentencing and the courts in the wake of Blakely. As explained to me, the goal of the report is "not so much trying to add to the tall stack of legal analysis about Blakely, [but] trying to make sure that the judge's role in sentencing is not overlooked in the growing debate."

The report is a great (and quick) read, which adroitly state the pragmatic concerns that have led many to express concerns about the prospect of Blakely being extended to the federal guidelines:

If the Supreme Court strikes down the federal guidelines, and Congress has to rewrite the federal sentencing system, many people fear that the political addiction to mandatory minimums and other tough-sounding measures will carry the day — and the role of the courts in picking punishments that fit the crime will be further eviscerated.

Though I am moved greatly by these sorts of pragmatic concerns about what could happen after Booker and Fanfan, I am moved even more by this passage in Professor Alschuler's pragmatism coda in his forthcoming FSR piece (available here):

The answer to the question, "Does the Constitution entitle defendants to have the facts that make them eligible for increased sentences determined by juries beyond a reasonable doubt?," cannot be, "Yes, if wise leaders in Congress are likely to respond by approving guided discretionary sentencing or the submission of some sentencing issues to juries, and no if those yahoos are likely to enact new mandatory minimum sentences."

Taking stock and looking ahead

With another big Blakely week in the books, and yet another one coming, now is a good time to take stock and look ahead.

On the federal front: The government is due to file today its reply brief in Booker and Fanfan, and in posts this weekend I suggested the SG has its work cut out for it. Specifically, in a post here about the state of the briefing before the Supreme Court, as well as in subsequent posts about sentencing chaos and sentencing windfalls, I explain why I think the respondents have had the better of the arguments to date. I am very eager to see the SG's reply brief, and I will post the brief as soon as I get it.

On the state front: I did another post this weekend on California's Three Strikes law, as well as posts on Blakely in the states here and here. Later this week, the Minnesota Sentencing Guidelines Commission is due to follow up the short-term recommendations it made to Minnesota Governor Tim Pawlenty in response to Blakely (available here with commentary here and here). The Minnesota SG Commission's website reports that the Commission will submit its long-term recommendations to the Governor by Sept. 30.

On the academic front: I spent part of the weekend reviewing proofs from the second special Federal Sentencing Reporter issue on Blakely. Watch this space for more details soon about the whole issue, which includes articles by Professors Albert Alschuler and Steven Chanenson that were cited in a number of the briefs filed last week. Details about the first FSR Blakely issue, and about ordering the journal, can be found here.

In addition, Professor Robert Weisberg sent me the finalized agenda for the exciting Blakely event taking place at Stanford Law School Oct. 8-9 (discussed here). The event is entitled "The Future of American Sentencing: A National Roundtable on Blakely," and a finished version of the program can be accessed here:
Download final_stanford_blakely_agenda.doc

Carefully thinking through "sentencing windfalls"

I previously speculated here that an excessive concern that some defendants "could receive a sentencing windfall," SG brief at 68, perhaps led the Solicitor General to advocate a position on severability that could create many more problems/questions than it solves. In addition, I speculated here that many federal sentences may be even lower if the guidelines are deemed wholly inapplicable in all cases. Now I want to explain why I am not excessively concerned about "sentencing windfalls" that might result from the safeguarding of defendants' Sixth Amendment rights:

1. Some defendants now get sentencing windfalls from prosecutorial deal-making. This op-ed from today's Chicago Sun-Times provides an example of a federal prosecutor giving sentencing windfalls in order to obtain testimony. Similarly, PBS a few years ago did this great Frontline series documenting how "federal mandatory minimum sentencing and conspiracy provisions [have] bred a culture of snitching that is in many cases rewarding the guiltiest and punishing the less guilty." Another recent windfall example comes from the Johns case discussed here; the defendant in Johns, despite having "numerous prior convictions" and playing a role in a drug distribution scheme involving a "substanal quantity" of crack and a firearm, had his sentence "capped" at four years because a prosecutor allowed Johns to plead to an offense with a four-year maximum sentence.

2. If prosecutors seek an enhancement for a distinct crime, a distinct charge can be brought and proven. In a case like Koch (discussed here), prosecutors sought and obtained a sentencing enhancement for a killing that was never charged nor considered by a jury. In Booker and Fanfan, the government seeks a longer sentence based on distinct drug offenses never charged or proven to a jury. After Blakely, I would think the government could still seek to punish Koch for the killing and could still seek to punish Booker and Fanfan for the distinct drug offenses; prosecutors would just have to allege and prove the killing or the drug offenses in a traditional adversarial proceeding rather than slip the facts into through the back door of guideline sentencing. In other words, it seem that a true windfall will come to pass in many cases only if prosecutors decide not to fully prosecute.

3. In some cases, sentencing judges might be able to upward depart to avoid a truly unjust "sentencing windfall." A sentencing judge might still have authority after Blakely in particular cases to "upward depart" from the federal guidelines to address any true "under-punishment" problems. Such an upward departure might, in particular cases, be based (1) on the facts proven at trial or admitted by the defendant, or (2) on prior convictions, or even (3) on the legal conclusion that the reduced guidelines sentence is not sufficient to serve the purposes of punishment as required by 18 USC 3553(a). (This last ground for upward departure might be shaky after Blakely, but Justice Scalia's opinion in Ring seems to suggest a distinction between fact-finding by juries and legal determinations by judges at sentencing.) Of course, a sentencing judge would have to justify an upward departure on the record and this decision would be subject to appellate review. But the authority to upward depart provides an existing mechanism — and in my view a quite sensible and orderly mechanism — for judges on a case-by-case basis to address any truly problematic "sentencing windfalls."

4. Reduced sentences may not be "windfalls," just a more sensible punishment scale. Even if they prevail in the Supreme Court, Booker faces 22 years' imprisonment and Fanfan faces 6.5 years' imprisonment for what appear to be non-violent drug transactions. Only a society with an unhealthy addiction to over-punishment and mass incarceration (as Marc Mauer suggests here) would think it is a "windfall" for non-violent drug offenders to get such long terms. Moreover, both Booker and Fanfan will be in prison much longer than the aforementioned Johns. It is discouraging that DOJ and the SG are apparently very concerned about "windfalls" that might flow from the recognition of constitutional rights, but apparently not very troubled by "windfalls" handed out by its own prosecutors.

I could go on, but I have already worn myself out today. In this prior lengthy post, I explained why I am concerned about the post-Blakely federal sentencing world that the government is advocating. My goal in this post has been to explain why I am not too concerned about the post-Blakely federal sentencing world that the government is opposing.

Carefully thinking through "sentencing chaos"

There is no question that, as noted here and here, sentencing in the federal system has been chaotic in the wake of Blakely. However, the amicus brief filed by the NAFD makes (at p. 2) this provocative (and I think accurate) statement about the chaos:

For those who practice criminal law in the federal courts every day, the only chaos has been caused not by applying Blakely to federal criminal cases, but rather by those trying to avoid its application or to force its reconsideration.

The whole NAFD brief seeks to document how the "requirements of Blakely are assimilated readily into the federal sentencing scheme, with little or no change to current statutes or rules." Id. And district court decisions such as O'Daniel (discussed here and here) and Johns (discussed here), as well as the on-going cases detailed in the NAFD brief, certainly seem to back up the NAFD's assertions.

As a thought experiment, it is fascinating to imagine what the last three post-Blakely months might have looked like if DOJ and the US Sentencing Commission had tried to make lemonade from what they thought was a Blakely lemon. Surely the multi-directional circuit splits noted here and the wild variations in district court practices would not have been as diverse and dramatic if DOJ was not pressing arguments that seem to fly in the face of Blakely's holding and express language. (Of course, the decision by DOJ to "Blakely-ize" indictments highlights it did have the good sense to "preserve" on-going federal cases even while arguing Blakely's inapplicability.)

Though allocating blame for the last three months is certainly fun, I am more concerned now with the future than the past. And my review of the respondents' briefs in Booker and Fanfan have me convinced that chaos will continue to reign supreme if the SG prevails on its severability claims. I have highlighted before here and here and here various questions and concerns about the SG's severability claims, and the respondents' briefs only deepen these worries. I am hopeful, but not all that optimistic, that these questions and concerns will be addressed in the SG's reply brief.

Most pressing now, in my mind, is some account by the SG of how advisory guideline sentencing is supposed to work. The Fanfan brief astutely notes that the SG "devotes some 23 pages to attacking jury factfinding [but] begins and ends its discussion of advisory Guidelines in just over one page." Fanfan Brief at pp. 48-49. Even putting aside the initial critical questions of whether all or some cases get "advisory" treatment and what comes of all the Blakely-ized indictments, I am very curious as a matter of substance and procedure how advisory guideline sentencing is supposed to operate.

Here are just a few of the many questions I have about the operations of a guideline-advisory world:

1. What should a probation officer put in presentence report (PSR)? For the guidelines to truly be advisory, PSRs would still need to include guideline calculations (still based, I would assume, on both charged and uncharged facts that compell guideline enhancements). But, to aid a court exercising its (now unfettered) sentencing discretion, shouldn't a PSR also cover a broad range of "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing? Recall that the SG asserts that still operative is 18 USC 3553(a), which mandates that a judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act. It seems that a lot of mitigating "offender" facts — which have been deemed "not relevant" or "not ordinarily relevant" by the Commission in its binding guidelines — would become very relevant if the guidelines became merely advisory.

2. What should prosecutors and defense counsel put in sentencing memoranda to the court? Would prosecutors and defense attorneys be able to contest, either factually or legally, aspects of the PSR's advisory guideline determinations? Especially because these calculations might prove to be legally significant for Due Process/Ex Post Facto reasons, I would suspect that even advisory calculations might need to be heavily litigated (and perhaps subject to appeal, see point 4 below). And, in addition to raising issues about the shadow calculations, would prosecutors and defense attorneys then have separate sections in sentencing memoranda with arguments and recommendations concerning various "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent because binding guidelines declare them largely off limits?

3. What decision-making process must a sentencing court employ? Would a district judge have to resolve on the record factual disputes over advisory guideline calculation? Would departures still play a role at this stage — i.e., if a court would have departed (up or down) if the guidelines were binding, would that (possibly important but still hypothetical) decision need to be explained and justified on the record? When turning to the application of its discretion, would the court need to give a hearing to defendants interested in presenting evidence concerning various "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth? Again, recall that these offender issues arguably become legally significant to the extent a sentencing judge is required, pursuant to 18 USC 3553(a), to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act.

4. What happens to and during appellate review? The SRA's appellate review provision, 18 USC 3742, does provide for "plainly unreasonable" review when "there is no sentencing guideline." What will that mean in a world with advisory guidelines, and how might Due Process and Ex Post Facto claims fit into this strange new world of appeals from advisory guidelines? Would a defendant be able to raise claims about a PSR's or a district judge's "advisory" guideline calculations? Will a defendant be able to argue simply that an imposed sentence, no matter how low as compared to the advisory guidelines, was still "greater than necessary" to comply with the purposes specified in the Sentencing Reform Act?

Because I am in the ivory tower and not "on the ground" with the courts and lawyers handing out 65,000 federal sentences per year, perhaps I am mistaken that the SG's arguments raise all these challenging questions. (Indeed, I hope folks who are "on the ground" might use the comments to help me work through these issues.) But everything I have read is pointing me to the view that the SG's arguments on severability will actually create more, not less, sentencing chaos. Of course, there is that ever-present worry that some defendants might get a "sentencing windfall," SG brief at 68, but I will try to explain further tonight why even that concern may be something of a red herring.

An unfair SCOTUS fight?

I have now finally finished reading the respondents' briefs in Booker and Fanfan (available here), and I my first reaction is to feel sympathy for the lawyers in the Department of Justice and the Office of the Solicitor General. They have to finish the Government's reply brief by tomorrow, and there are so many of their arguments which are now in desperate need of a rigorous defense.

Indeed, the SCOTUS fight now almost seems unfair: the SG is stuck with the weaker arguments on the merits — at least that's my view as suggested here and here and here — and now it faces a double-barreled assault on its arguments from two effective and distinctive briefs filed on behalf of defendants Booker and Fanfan. And the Governments' lawyers also have to work through, and decided whether to respond to, some of the interesting and diverse points made in the interesting and diverse amicus briefs filled in support of the respondents. (These amicus briefs are available here and I have discussed them collectively here and here. In addition, Jason Hernandez at the Blakely Blog has started his ambitious plan for discussing these briefs, as he now has a full CliffsNotes version of the FAMM brief here.)

I have already written at length about the SG's arguments that the federal guidelines should be exempt from the Sixth Amendment because of their administrative nature (see generally posts here); I do not think much more needs to be said about the claim that the Fanfan brief states cleanly in its first heading: "Blakely applies to the federal sentencing guidelines." I will just note that both the Booker and Fanfan briefs, like all the amicus briefs, effectively debunk the fictions discussed here that seem essential to the SG's efforts to keep Blakely from applying to the federal guidelines.

Far more interesting, and worthy of a series of coming posts, are the arguments that the Booker and Fanfan briefs make concerning the issue of severability. Though I will be discussing "chaos" and "sentencing windfalls" in subsequent posts, I will here highlight that the briefs' severability discussion has confirmed some points made here and here and here about these issues. And, perhaps even more importantly, the severability discussion in the briefs now have me convinced that the SG's proposed "advisory guidelines" remedy would actually be more disastrous for courts (and even prosecutors) than for defendants.

A Fall Classic?: More on 3 Strikes

Perhaps it is fitting as we head into baseball's playoff season that the baseball-metaphor criminal justice policy known as Three Strikes is getting a second look in California. (As a baseball aside, this article highlights that California is a particularly interesting baseball state these days.)

I detailed last week here some of the on-going debate over Proposition 66, the initiative on the November ballot to amend California's Three Strikes law, and a newly released report should make a real impact on the debate and will likely help ensure that the fate of Proposition 66 is not clear until the late innnings of the election.

The new report is from the Justice Policy Institute and is entitled "3 Strikes & You're Out: An examination of 3-Strike Laws 10 years after their Enactment" (available here). The report marshals a terrific amount of data about the scope and impact of Three Strikes laws in California and other states. The report details that the rate of serious crime over the past 10 years has dropped roughly equivalent amounts in states with and states without Three Strikes laws. The report also highlights that California has incarcerated about four times as many convicts under its Three Strikes law as all 22 other states with such laws combined. Though chock-full of interesting data, I found these statistics particularly noteworthy concerning the scope of California's Three Strikes law:

Expressed as a rate per 100,000 residents, California's Three Strikes rate (119.3) is 18 times as great as the average for the other Three Strikes states (6.7).

The 42,322 people incarcerated under California's Three Strikes law exceed the entire prison population of each of the other Three Strikes states, except Florida and Georgia.

This press release from JPI provides some more statistical highlights from the report, and this AP article details that different conclusions can be drawn from the report's reports. Also, at this link, you can access a well-done NPR story talking more generally about California's Three Strikes law and the debate over its possible amendment.