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January 13, 2005

The revenge of Breyer?

The more I think about the Booker outcome, they more amazed I am that Justice Breyer found a way to win the federal sentencing battle despite having lost the Apprendi/Blakely war.  As one reporter put it to me, we might call the outcome "The revenge of Breyer."  To echo again my new favorite song from The Who, the fitting Won't Get Fooled Again, in a lot of cases for a lot of defendants the new federal guidelines boss (created by US Supreme Court Justice Breyer) may look a lot like the old guidelines boss (first created by then-US Sentencing Commissioner Judge Breyer).  For more explanation of this point, see my post The FSG are dead, long live the FSG!! 

That said, in some courtrooms and certain cases, a new advisory sentencing world may look a lot different than the old world.  Only time, and lots of litigation, will reveal the real impact of Justice Breyer's remedial handiwork, which ultimately sets up a remarkable experiment in advisory guideline sentencing and creates the possibility of developing a (long-desired) purpose-driven "common law of sentencing."  (Of course, we also have to wonder how long Congress might let such an experiment operate.) 

Personally ironic for me is that I think Justices Stevens, Scalia and Thomas have a much stronger legal argument on the remedy in Booker, and yet Justice Breyer's opinion for the remedial majority creates by judicial fiat a system of sentencing that looks a lot more like the idealized guideline system that, I believe, early advocates of guideline reform sought.  For more on these point, see generally my early articles about the old mandatory system in A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STANFORD LAW & POLICY REVIEW 93 (1999) and Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 77 NOTRE DAME LAW REVIEW 21 (2000).)

As a last few thoughts for this post, I think it is appropriate and important to still view the federal sentencing story as the minor (headline-grabbing) battle in the broader jurisprudential war taking place on the Supreme Court.  By my read, Booker does not significant change the basic Blakely equation for the states (which is still where over 90% criminal cases are handled), although it does confirm that states cannot evade Blakely through "administrative guidelines" while they apparently can evade Blakely through "advisory guidelines" enforced by judicial review.  Thus, it seems likely states with guideline systems will continue to move toward Blakely-izing their systems to in fact give more effect and substance to the jury trial right.

In addition, it is also important to note that the broader jurisprudential war being waged within the Supreme Court will continue in the terms ahead.  Booker did nothing to clarify many of the critical questions that Blakely left in its wake, question such as the scope and application of the prior conviction exception (background here) or the nature of Blakely admissions (background here).  As I detailed in this post last month, states need more guidance on Blakely ASAP, and the only obvious message that comes from Booker for states is that the Supreme Court remains deeply divided on these issues.

January 13, 2005 at 07:51 AM | Permalink


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Tracked on Jan 13, 2005 11:26:56 AM


Prof. Berman:

Please get some sleep! Postings at 2 a.m....and NPR Morning Edition appearances at 6 a.m.!!

Posted by: Jon Feinberg | Jan 13, 2005 8:50:45 AM

Thanks for your concern, Jon (but even when I went to bed I had a hard time shutting off the Booker brain.)

Posted by: Doug B. | Jan 13, 2005 9:26:05 AM

I know what you mean about not shutting off the Booker brain... I had to talk to (1) my co-clerk (2) the court reporter (3) an accompanist for a choir I participate in (4) and my parents about the decision... and I still feel like I didn't talk enough.

Good NPR interview, Prof. Berman.

Oh, and here's a question completely out of left field... I'm still puzzled about the reasonableness appellate standard. What's the source of that "reasonableness" right? Is it just the remedy majority's default, "replacement" statutory standard, which can (and probably will) be replaced shortly? Or is there some constitutional basis for their reasonableness decision? If a judge's sentence is "unreasonable," is that a due process violation? (It's certainly not a Sixth Amendment violation, is it?)

And, while I'm on replacement remedies, has anyone talked with conlaw scholars about the effect this decision might have on the Court's general ability to declare statutes unconstitutional? I mean, it does seem to be a big departure from the "as applied" method usually used before (and striking only parts of a statute even though the statute cannot work without the parts [i.e. appellate review]) and an usually large emphasis on Congressional intent (contrary to Scalia's attemps to push away from it) to judicially rewrite a statute to get what Congress intended had they known about SCOTUS's ruling. That, to me, makes constitutional challenges to statutes (and proposed remedies by parties) much easier to make. But will SCOTUS limit Booker to its facts, saying that, like say Brown II, the circumstances required an extraordinary remedy?

Posted by: District Clerk Battling Blakely | Jan 13, 2005 9:55:17 AM

I've got a question about the definition of statutory maximum. If Blakely was based upon a judge not being able to increase a defendant's sentence above the statutory maximum based upon facts not found by a jury, and Blakely/Apprendi defined statutory maximum as the highest sentence a judge can impose based upon the guideline determination on the jury's verdict, then can defendant's now challange a judge's verdict if it is within the criminal statute's, I guess, "traditional" definition of the penalty if there are no guideline determinations? I guess a better way of asking this is, are the statutory maximum concerns of Apprendi/Blakely gone now that the guidelines aren't mandatory? And a judge will only enter into constitutional waters if he increases a sentence above the highest level defined by the criminal statute?

Posted by: Richard S. | Jan 13, 2005 11:28:22 AM

I think the statutory maximum concerns of Apprendi/Blakely are still relevant, but only to the maximums set forth in the US Code rather than the Guidelines. Someone convicted of distributing less than 5 grams of crack, for instance, still could only get 20 years (the stat max in the Code) even if the judge later found he sold 5000 grams. The post-Booker world allows the district court to sentence the defendant to anything up to that 20 year max, assuming it's "reasonable."

Posted by: JDB | Jan 13, 2005 11:49:47 AM

Which is pretty ironic, isn't it Richard and JDB. All this worry about increasing defendant's sentences through judicial factfinding, as Washington did, is now basically down the toilet. Now we have increasing in sentences through judicial factfinding, but because the Court excised code sections that, as JPS noted, are completely facially constitutional (mandatory guidelines and de novo review) all of our worries fade away like the popularity of ZCavaricci jeans.

Posted by: District Clerk Battling Blakely | Jan 13, 2005 12:38:16 PM


The intersting thing about Breyer's Revenge is his embrace of Williams v. NY. Remember that the Apprendi-Blakely dissenters have consistently argued that if judicial fact finding in fully discretionary sentencing is valid, then judicial fact finding in determinate sentencing must be too. After all, why should closer legal regulation of sentencing result in greater constitutional regulation as well?

The A-B majority could have said that Wms. is indeed no longer good law, but they never have. I've always read this as an endorsement of a return to discretionary sentencing. Clearly, though, that only describes Ginsburg's position. Apparently, the other members of the A-B majority weren't leaving Wms open for any reason. They were just ignoring the case and the dissenters' argument with it, and proceeding with a plan to force sentencing factors into the jury room, and, preferably, back into offense definitions.

The Breyer severance move relies on Wms., obviously. So instead of questioning it and insisting that it must fall with the rise of Apprendi, the A-B dissenters have used Wms. to stop the A-B majority's apparent plan.

A neat move.


Posted by: Kyron J Huigens | Jan 13, 2005 1:31:49 PM

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