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April 9, 2005

Booker and Blakely stories shifting to warp speed

After a remarkable March — with major sentencing developments coming from state and federal courts and legislatures (summarized in posts linked here and here and here and here and here) — I was hoping the sentencing world might slow down in April.  But, as detailed in my Sunday best? post last weekend, April got off to a flying start.  And this past week it seems Booker and Blakely stories have shifted into hyperdrive.  Here are just some highlights from this week:






April 9, 2005 at 02:47 AM | Permalink


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Ben Oluku 67849-004
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Peoples around the world look to the United States for a model system of governance. A system which has developed over the years to be one that is grounded in the very basic but fundamental notions of ‘Rule of law’ and ‘separation of Powers’. These two concepts assure the orderly conduct of society and the machinery of government. The former, by assuring that no person or entity is above the laws of the land, and the latter, guarantees that powers is not consolidated in any one person or institution, therefore avoiding potential tyranny or oppression.

As a mainstay of the concept of separation of powers, governance is intended to be carried out through three separate branches, a law-making body (as represented by Congress); a judiciary (courts); and an executive branch (elected Government headed by the President). The idea is to restrict each body to its constitutionally assigned function, (except in cases where a function is expressly delegated to another). This idealistic system has worked for centuries until January 12, 2005. In a now widely reviewed decision by the United States Supreme Court on that date, the court, for the first time, took on the function of making, amending and repealing laws, a function constitutionally reserved to Congress.

Until its consolidated ‘Remedial Ruling’ (in ‘United States vs. Booker’ and ‘United States vs. FanFan’), the Court had always exercised its authority to review laws passed by Congress to assure their Constitutionality. When the court found a law (or parts thereof) to be in violation of the Constitution, it would so rule. The resultant effect of such ruling was left to the lower courts (who would thenceforth apply the Supreme Court’s holding to relevant cases before them) and Congress (who may repeal or/and amend such obnoxious law). Unfortunately, the court departed from this well established doctrine and practice by effectively repealing a law passed by Congress without first finding same to be in violation of the Constitution.

While reviewing the constitutionality of the United States Sentencing Guidelines (U.S.S.G,), and in effect, the Sentencing Reform Act (SRA), which created the guidelines, the court found a portion of the guideline to be unconstitutional. However, in an attempt to fix the guideline (which act in itself is ultra-vires) the Court ignored the unconstitutional portion and instead repealed two otherwise constitutional provisions (in order to legalize the former). Section 3553(b)(l) (Supp. 2004) of 18 U.S.C. requires sentencing courts to "impose a sentence of the kind, and within the range." specified by relevant guideline sections, and 18 U.S.C. § 3742(e) sets forth standards of review on appeal.

In its substantive decision in both cases, the court opined that it was unconstitutional for the USSG to authorize a Judge, sitting sans Jury, to make determinations which lead to raising a defendant’s potential sentence beyond the statutory maximum. This rule had been made in previous cases by the court - "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" (Apprendi v. New Jersey, 530 U.S. 466 at 490 (2000)).

However, at issue between the circuit courts since Apprendi was decided, was what constituted statutory maximum? The Supreme Court held in these latest cases that, statutory maximum "is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. "In effect, the statutory maximum was the sentence prescribed by the U.S.S.G. as dictated by the jury’s verdict or admitted by the defendant (since the U.S.S.G. is mandatory by virtue of 18 U.S.C. § 3553(b)(l)). The court reaffirmed its prior decisions that the statutory maximum was not necessarily that stated in the statute which created the offense, but that, which the Judge is bound to limit itself to before making additional findings.

Having made this determination, the Supreme Court proceeded to proscribe 18 U.S.C. § 3553(b)(l) which made it mandatory for courts to use the guidelines, thus giving sentencing courts broad
discretion to sentence defendants within a wide range of options. The United States Supreme Court in repealing this section, thus arrogated to itself powers that do not accrue to it from the Constitution, nor delegated to it by Congress,

When Congress enacts an Act, the Supreme Court is duty bound to either interpret and apply said Act to relevant cases before it. or rule same to be unconstitutional. The court does not have the power to repeal (or excise) an Act of Congress if it has not found that particular act or section to be in violation of the Constitution.

In finding sections of the U.S.S.G. and SRA to be unconstitutional, the Supreme Court had only two options:

(a) Declare only the offending portions unconstitutional
(b) Declare all of the U.S.S.G. or/and SRA unconstitutional.

In order to make a determination as to which option to employ, the court must use the court’s well established ‘severability analysis’, If the U.S.S.G./SRA without the unconstitutional sections can serve Congress’ intents, option (a) is employed, if not, option (b) is applicable. (See e.g. Alaska Airlines, 480 U.S. at 684).
In this case, the Supreme Court held in its remedial ruling that the Guideline and SRA is severable. Unfortunately, it chose not to excise the offending part, but instead severed a perfectly constitutional one. The question raised by this ruling is not so much whether it’s a wise ruling, but whether the court has the power to issue such a ruling.

Sadly, even though the court’s decision has been widely reviewed in different fora around the country, no one has articulated the inherent implication on the principle of ‘separation of Powers’ by the court’s action. Simply put, the Supreme Court does not have the power to amend, excise or repeal a section of an act of Congress without first finding it unconstitutional, or at the least, irreconcilable with another perfectly legal Act of Congress. It’s blatantly unconstitutional.

There is a constitutional responsibility to delineate the obligations and powers of each branch of government, thus "the doctrine of separation of powers wisely counsels the judiciary to act with care when reviewing actions by other branches." See e.g. the court’s ruling in Time Inc. v. Hill, 385 U.S. 374, 397 (1967) and Regan v. Time Inc., 468 U.S. 641, 652 (1984). This act by the Supreme Court must not be allowed to stand, lest it gradually devolve into the concentration of powers into one branch, without the safeguards of ‘checks and balances’ inherent in modern forms of governance, and the more expansive ‘rule of law’ doctrine.

From a practical perspective, it is beyond anybody’s sense of logic how the court’s majority determined that giving back to judges the wide discretionary sentencing powers, deliberately and specifically taken away by Congress through the now excised section of the SRA, better serves Congressional intent. It is commonly agreed that the primary goal of Congress in enacting the SRA was to assure uniformity in sentencing for same offenses, (see 28 U.S.C. § 991(b)(l)(B) ‘provide certainty and fairness ...’).

The Court’s decision takes the country back to the pre-SRA era. Prior to the enactment of the SRA in 1987, the maximum sentence expressed in the statute that created the relevant offense was applicable, just as is now enabled by the Court. However, the court has neglected to provide a critical procedural protection that existed prior to the enactment of the SRA. Parole! The Parole Commission was designed to reduce sentencing disparities and to provide a check for defendants who had received excessive sentences. The court, here, reenacted the discretionary Guidelines System that once existed without providing this crucial safety net.
However, as hitherto stated, this petition isn’t about the wisdom of the court’s decision, but rather, the court’s lack of authority to make it.

It doesn’t take an attorney to figure out that no other court in the land can overrule a Supreme Court’s decision. Only the Supreme Court may overrule itself. Unfortunately, it seems practically impossible to get such a relevant challenge before the court. More so, the court has a discretion to refuse to entertain any case filed with it.

Under this circumstance, it would seem appropriate for Congress to petition the Court for a review of their remedial decision in both cases. After all, it is Congress whose powers is being infringed. It is and must be the aggrieved party. Additionally, to ensure the rule of law, Congress has a duty to see to it that (in the words of the Supreme Court in Butz v. Economou, 438 U.S. 478, 506 (1978):
"No man [or entity] in this country is so high that he is above the law. No officers of the land may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and ara bound to obey it."
Such a Petition can arguably be brought under Article III Section 2 [2] of the Constitution which grants ‘original jurisdiction’ to the Supreme Court under certain conditions. The section also authorizes Congress to regulate the use of this power. The Petition may also be filed in a district court and allowed to work its way up to the Supreme Court. Congress may also, through a resolution, implore the court to exercise its discretion to review its ruling.

As a more permanent solution, it seems imperative for Congress to enact a law providing for an ad-hoc committee which may serve as an ombudsman on ‘separation of Powers’, particularly involving the Supreme Court. Such a committee will be made up of members drawn from the 3 arms of government. Their primary task would be to review allegations such as this, and if found to be true, will have the standing to Petition the Supreme Court on behalf of the nation for a review of the offending ‘ruling’.

Granted, by virtue of Article III Section I of the Constitution, such a body may not have superior judicial powers over the Supreme Court, it would at least serve as the conscience of the court. The country’s laws must be made to keep pace with the needs of evolving governance, and society in general. It must be remembered that it takes only five people in the court to decide the fate of 250 million Americans, at least judicially.

Please act now to stem this abuse.

Respectfully submitted,

Ben Oluku.

March 2005

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