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January 13, 2005

Booker and provocation of Congress

Obviously, the Justices are not involved in a chess match with Congress. They have not anticipated (and cannot anticipate) three moves ahead. But it also seems likely that the Justices gave some thought to the likely congressional reaction to their ruling. Which of the two remedies the Court debated make a quick congressional response more likely?

At first blush, I would guess that the Stevens/Scalia remedy -- keep the binding guidelines, but add jury factfinding or waiver where necessary -- had the best chance to create a stable outcome that Congress would accept, at least in the short run. DOJ had already learned to maneuver in this type of system, and treated this as a fall-back position in their arguments to the court.

On the other hand, the Breyer remedy -- advisory guidelines that still must be consulted in each case -- may itself produce only incremental change. In the short run, all the courtroom actors know what to do under this system. Perhaps judges will change sentencing patterns slowly enough, and in small enough increments, that they will not provoke a reaction from Congress.

On the third hand, there may be members of Congress who are anxious to amend the federal sentencing laws, and it does not matter to them which of the different remedies the Court chose. Whatever the opinions say, they create an opening for change.

Any thoughts from readers on which of the available remedies was the most or least likely to provoke a major and immediate congressional restructuring of the sentencing laws?

Ron and the first 17 comments raise many good points, but on this front I particularly want to spotlight that the development of federal sentencing law and policy is more like chinese checkers than chess, because we have multiple players, not just the courts and Congress.  And the player who truly has the biggest marbles is the Justice Department, a fact which was demonstrated by DOJ's ability to get the Feeney Amendment enacted (and which has been astutely stressed by Professors Frank Bowman and Marc Miller in their post-Feeney commentary on the state of the federal system).

What this all means is that, were the Court being truly pragmatic in Booker, it would also be concerned about what remedy would be likely to provoke DOJ.  And, on this front, I think we can identify a clear difference in the Stevens and Breyer remedies.  DOJ had indicated post-Blakely, both through its litigation strategies and various official statements, that it would not be happy with the Stevens' approach of "Blakely-izing" the guidelines.  But I have a feeling that DOJ may be content, at least in the short-term, with Breyer's remedy (especially if DOJ can get some quick appellate rulings that following the guidelines is per se reasonable).

Here, then, is one of the many great ironies of Breyer's opinion for the Court in Booker.  Breyer claims, quite expressly at p. 14 of his opinion for the Court, that the Stevens remedy would give prosecutors more power than his remedy.  But if this was really true, why would DOJ resist so greatly the Stevens remedy and essentially seek the remedy that Breyer created for the Court?

(Tellingly, in Part IV of his opinion for the Court, Justice Breyer recognizes that his remedy "coincides significantly" with DOJ's proposed remedy and that he is rejecting the defenses' remedies which accord with Justice Stevens' approach.  But, echoing the debate between Justices Scalia and Breyer in Blakely, Breyer apparently continues to believe that prosecutors gain power when defendants have more rights at sentencing, even though the litigation strategies of both DOJ and the defense bar suggests otherwise.)

January 13, 2005 at 03:45 PM | Permalink


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There are probably many motivations underlying Breyer's incredibly dishonest (remedy) majority opinion, but I think that the primary one is the one you've pointed out: That by adopting a solution that is clearly the least favored by Congress (i.e., an entirely discretionary sentencing scheme), he's loudly signally to Congress that it needs to enter the breach. There's just no way that Congress will let this solution stand. I too agree that were the Stevens / Scalia remedy (of essentially Blakely-izing the Guidelines by submitting enhancing facts to a jury) adopted, there would be less impetus for a political solution, since some courts (e.g. all those in the 9th Circuit) have already been doing this, and without much difficulty. And it's much harder to criticize, politically, a system that prioritizes the jury, rather than one that gives unelected judges essentially unfettered discretion.

Posted by: ycl; defense attorney | Jan 13, 2005 3:59:42 PM

I think without question the second majority's remedy (rendering USSG "advisory") could easily provoke the most serious response from Congress.

A natural reading of the "remedy" as well as the "reasonableness" standard of review is that district court judges now have essentially unfettered discretion to sentence anywhere within the statutory range after "consulting" the (Blakely-ized?) Guidelines. In addition, the courts of appeal now have newly unfettered discretion to review sentencing based on a completely nebulous standard. On top of that is the fact that the relevant portions of the PROTECT Act have been rendered moot by this decision.

Congress expressed clear antipathy towards judicial discretion in sentencing. The Booker "remedy" invites an immediate (and likely ferocious) response.

Matthew Siroka (Defense Attorney)

Posted by: Matthew Siroka | Jan 13, 2005 4:05:00 PM

I have to imagine that the Stevens dissent remedy would have provoked a congressional reaction, given that it would have strengthened the hands of defendants. Whether Breyer's remedy provokes a reaction depends on how it is interpreted and applied. If courts interpret it to give judges unbridled discretion, it will certainly provoke a reaction--see the Feeney Amendment. If, on the other hand, courts interpret it to make the guidelines mandatory enough to apply in most cases, but not so mandatory as to prevent judicial factfinding that raises sentences, Congress may see that as the best (ie, most anti-defendant) solution they can hope for in a post-Apprendi world.

Posted by: AF-law student | Jan 13, 2005 4:09:03 PM

I don't think it's a debatable point:

imposing a remedy that returns the system to the one that Congress attempted to throw out is most likely to provoke Congressional action. I think that's why Justice Ginsburg joined Breyer's opinion (not because she agreed with it, but because it would provoke an immediate Congressional response).

I agree that what Breyer did was nothing short of a naked exercise of raw legislative power. As a lawyer, it bothers me. As a defense attorney, I can't say I'm upset at my clients' chances under the newly severed regime . . . .

(Defense Attorney).

Posted by: Steve Sanders | Jan 13, 2005 4:32:39 PM

A lot of legislation is prompted by extreme cases. Therefore, even if 95% of sentences fall within the pre-Booker guideline ranges, the 5% that don't will be the ones Congress focuses on. All it will take is a handful of cases in which a judge metes out a sentence *way* below the original guidelines. Since there are thousands of sentencings per year, it won't take long for this to happen.

Posted by: Marc Shepherd | Jan 13, 2005 4:32:41 PM

My guess is that at least some members of congress will begin looking at expanding the number of mandatory minimums included in the United States Code. No messy Appreni/Blakely/Booker problems and you remain "tough" on crime.

Posted by: Geoff | Jan 13, 2005 4:44:48 PM

From a defense attorney: Prediction One. I agree that judges will hew close to the USSG. When AUSAs and defense attorneys can strike bargains (thus avoiding any chance of an appeal), they'll go out on a limb and give a defendant less time than s/he'd get under the USSG. Every once in a while, to promote the ends of justice, they'll go out on a limb for a defendant on their own. These forays will be collected by the anti-judicialists (expect to see examples from Clinton-appointees in Massachusetts and California) so it will be made to seem as if the judiciary has gone wild and departed from the guidelines in unfettered and extravagant fashion. Then Congress will respond to this "crisis" by slamming us with a slew of mandatory minimum sentences. Prediction Two. The mandatory minimum bill is already written by DOJ, polished over the past 6 months, and ready for passage by Congress and signature by the President.

Posted by: Jeff | Jan 13, 2005 5:14:53 PM

I agree that some in Congress will hate this ruling (no doubt in part because judges will love it). But let's not forget that the Feeney Amendment didn't stem from a huge congressional push to tighten sentencing law. Rather, it was shoehorned at the eleventh hour into the Amber Alert bill, which no politician hoping to win reelection could vote against. The outrage in the legal community--including the conservative legal community (see the comments of Justices Kennedy and Rehnquist)--was so loud and swift that I doubt Congress will do something so reactionary and irrational again. And the pre-Feeney evidence that judges were "illegally" departing from the guidelines was, on second glance, incredibly thin--and I'm sure congressional moderates like Arlen Specter know this. So I don't agree that Congress is sure to react quickly, or at all. The key variable is what judges do with their new power over the next several months: if they exercise restraint, and take great pains to justify any "departures" from the recommended guidelines, perhaps Congress won't feel forced to do anything. For this to happen, though, it's crucial for the courts of appeals to muscularly use their review power to require rationality and ensure that judges don't take advantage of the new system.
(student at Yale law school)

Posted by: Andrew Goldstein | Jan 13, 2005 5:18:26 PM

I wonder if Congress will be as quick to act as some of the commentators have suggested. Despite its dishonesty, it seems to me the remedy is sensible, preserves the guidelines as just that --guidelines -- and probably will not change the status quo for the majority of cases. I am not sure that there will be a huge public outcry calling for legislative action. Indeed, as much us law geeks are interested in these issues, I wonder how much the average citizen really cares. I may be naive, but perhaps with all of the well-publicized problems with rigidity in the guidelines, enough members actually believe that a change makes good sense and will not seek to do anything because they don't really have to do anything. Indeed, I thought some of the comments from (Republican) members during the Gonzalez hearing seemed to reflect an understanding that the sentencing system needs more flexiblity. Of course, the real problems are as much about mandatory minimums as the guidelines, but I think changes there will be difficult because it would require positive action that could be twisted to hurt members politically.

(big firm lawyer)

Posted by: Mike | Jan 13, 2005 5:36:28 PM

I am as confused as everyone else on this blog. I wanted to focus on enhancements. Breyer's opinon says that district judges have to consult the guidelines range and other factors in the guidelines.
What do you do if the parties challenge every enhancement -- whether the defendant was brandishing the gun, how many grams of cocaine base he had, etc.

What standard should the judge have to use (if he chooses to look at these factors)? Is it still preponderance or can he basically invent it out of thin air?

Any ideas?

Confused Lawyer (law firm dude)

Posted by: Confused Lawyer (CL) | Jan 13, 2005 7:14:11 PM

I am a supervisor of a guideline presentence unit. I have worked with the federal guidelines for almost 15 years now. I think many judges will give the advisory guidelines alot of attention/importance in the near future. They are used to sentencing under them and it gives them a good reference point easy to be justified. However, there will be some judges that don't at all, mostly because they think the guidelines were to harsh in the first place. At least where I work for now, probation officers will apply the guidelines as we always have, relevant conduct, enhancements etc..., preponderance standard. Existing case law still good with regard to these applications. However, I think over time these advisory guidelines could loose importance to judges and their teeth will be gone. It all depends on what gets appealed and how the circuits manage this. If I were a judge I would look at this as a second chance to show that we can impose sentences in most cases like apparently Congress and thus the majority of the public wants. Once, and if, they start to scatter sentences all over the place things will change and judges will again loose their sentencing power because Congress will step in and act. Maybe this is totally wrong and Congress does not want to even give the judiciary this second chance. Who knows. With many judges I also dont see this Booker case as being that beneficial to the defense. I dont know how may times I have heard a judge say if I could give this defendant more time I would, especially white collar cases where the guidelines came out somewhat low when compared to other crimes like drugs etc... Overall those defendant that try to get a new sentence will be mostly unsuccessful, even if they can legally attempt this. Most judges will say that the sentence I imposed before Booker was the same sentence I would have imposed now. Also, there is some history with regard to advisory policy statements/guidelines. Most circuits and judges did whatever they wanted under Chapter 7 if the court said a few magic words. That Chapter deals with the revocation of supervision and the Sentencing Commission has published advisory instructions/policy statements with regard to that. We will see how and if these previous rulings regarding revocation carry over to actual sentencing. People blame these guidelines for being so harsh, but the reality is that most harsh sentences were not because of the guidelines but because of mandatory sentences set out in statute (statute always overrides the guidelines). For instance 18 years old no prior record and you rob three places with a gun that's 5+20+20, all consecutive by statute (total = 45 years) and a judge can do nothing about it. Those are the type of things that are all in the hands of a prosecutor. In my experience those are primarily the cases the public hears about through the media that causes many to blame the guidelines when the guidelines didn't even cause it. More of this could be coming our way too.

Posted by: steve | Jan 13, 2005 8:26:23 PM

Just one other thought, those of you that come in here and post well in my case the judge relied on all this info. to increase the guidelines not proven up to the standard of you want that was provided by snitches etc...that type of judge who would rely on this is going to hammer you anyway now that the guidelines are advisory (maybe worse).

Posted by: steve | Jan 13, 2005 9:01:06 PM

Will the judges who refused to handle drug cases return to criminal court now that they need not impose sentences they feel too harsh, and in doing so move the average sentence well below the guidelines range in some districts?

Posted by: John F. Carr | Jan 13, 2005 9:24:34 PM

There has not been a judge in my district who refused to hear a criminal case that I am aware of. Therefore, can't try to answer your question.

Posted by: steve | Jan 13, 2005 9:39:07 PM

wow... what a mess... can somebody smarter than me answer this question?

1. If "advisory" guidelines are constitutional to Breyer, does that mean federal judges CAN find new facts (not considered by a jury) to extend a sentence? ... i.e., it's ok if a judge violates Blakely, as long as Congress isn't forcing him / her? ...that can't be right, can it?



Posted by: Hank Kingsley | Jan 13, 2005 9:42:19 PM

As a criminal defense lawyer, I practiced under advisory guidelines for about 15 years in Michigan, before they were replaced with mandatory guidelines the judge has had to consult, and has had to follow. Under the old advisory guidelines, departures were "encouraged." Defendants got burned at both ends. If the guidelines called for a three-year minimum, the judge could give a 10-year minimum, saying the guidelines were inadequate, and that departure was encouraged. A defendant whose guidelines called for a three-year minimum, but who could have been kept out of prison with good creative lawyering, got the three years. The judge justified this on the grounds that this is what the guidelines called for. The situation might be different in the federal system, with judges appointed for life, but state judges, who have to run for re-election every few years dare not look soft on crime. So far, I see Booker as the worst of all possible outcomes.

Posted by: Greg Jones | Jan 13, 2005 9:45:42 PM

At 9:30 this morning, in the Southern District of New York, I thought I'd have a chance to make the history books as one of the first sentencings in a post-B/F world. Alas, after about an hour of illuminating discussion, the judge decided to adjourn for one week to reflect a bit more on the procedure he has now tentatively decided to follow, so I won't win that sweepstakes.

He asked me to identify all the "traditional" bases for downward departures (here, extraordinary rehabilitative efforts) and said he will calculate the guidelines and then the resulting range after any departures. Only then will he consider the traditional 3553 factors (in this case, serious medical condition, history of personal achievements and other socially redeeming qualities prohibited from consideration under the guidelines).

At first, I resisted the idea of using the guidelines as a jumping off point and of applying a "traditional" departure analysis. The judge quickly convinced me, however, that any departures that are authorized under the guidelines would most likely be upheld on appeal as "reasonable" (or "not unreasonable"). The larger the deviation from the guidelines, he reasoned, the greater the risk of an appellate finding of "unreasonableness." So, if the initial guidelines range is lowered by use of a virtually unassailable traditional downward departure, the ultimate deviation will be smaller and, therefore, less likely to be considered "unreasonable."

As a philosophical matter, I don't like the idea of giving the guidelines that much weight over other 3553/parsimony factors, although I recognize the inertia of the past 17 years makes this type of approach all but inevitable. As a matter of pragmatism, however, I think the judge is probably right but I wonder if this is a slippery slope, which will end up helping the guidelines reclaim their former glory.

Posted by: Alex E. | Jan 13, 2005 11:34:10 PM

To answer your question, professor, this prosecutor prefers Justice Breyer's remedy (as a practical matter, legal analysis aside) because (a) the guideline range will be applied by most judges in most cases, (b) we will still be able to prove enhancements by a preponderance, instead of beyond a reasonable doubt, (c) it doesn't make sense to prove many of the guidelines enhancements to a jury, (d) we won't have to play games with sentencing factors on indictments, and (e) additional evidence discovered before sentencnig can be considered at sentencing (such as, for example, if a defendant lies to probation). The system will work much more easily under the Breyer approach.

Posted by: A prosecutor | Jan 14, 2005 10:12:34 AM

I just wonder with all this going on.what is the chance that we could see the federal system reduce inmates time from 85% back to 65%
No I'm not crazy. just wondering,maybe with all that is going on this week i'm wishing big

Posted by: sharon | Jan 14, 2005 6:08:19 PM

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