Sentencing Law and Policy: A loud deafening silence from the Sentencing Commission

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January 26, 2006

A loud deafening silence from the Sentencing Commission

In our Legal Affairs debate last week, Frank Bowman lamented that the Sentencing Commission has been disconcertingly passive in its response to Booker:

One of the most puzzling features of the post-Booker landscape is the absence of the Commission as anything other than a gatherer of data. The Commission has the time, the expertise, the data, and (one would think) the motivation to take a leading role in molding thinking about where we should go from here. But the silence from the second floor of the Thurgood Marshall Building has been deafening.

This deafening post-Booker silence has now been broken by a loud rendition of the same old song. Just released on the USSC's webpage is a "reader-friendly" version of the USSC's Proposed 2006 Guideline Amendments, which provides a compilation of the "unofficial text of proposed amendments to the sentencing guidelines ... for the convenience of the user in the preparation of public comment."

The USSC's 88-page document with proposed amendments, which I've only had a chance to skim, is a remarkable testament to the USSC's remarkable disengagement with post-Booker federal sentencing realities. Stunningly, the 88-page discussion of new proposed amendments does not even once mention the Booker ruling(!), let alone speak to how guideline sentencing could or should develop in Booker's wake. Critical post-Booker "hot spots" like the crack guidelines or acquitted conduct or fast-track disparities are not addressed in any way. Moreover, continuing the disconcerting severity patterns of the past, it appears that nearly every significant new amendment put forth by the USSC proposes an increase in applicable guideline ranges. Aaaarrrrggggghhhhh!

Let me start the public comment period with this simple recommendation: The Sentencing Commission should acknowledge the Booker decision somewhere in the Guidelines Manual!

Perhaps the new amendments are not as Booker oblivious as they seem, and I suppose I should understand why the USSC continues to run scared and apparently believes that avoiding any discussion of Booker is the best course of action. But for the USSC to proceed with "business as usual" guideline amendment without even mentioning Booker strike me as almost a dereliction in duty. Moreover, seeing the USSC try to stage our modern guidelines Hamlet without the Booker Prince makes me extremely pessimistic about the future script for the federal sentencing system.

January 26, 2006 at 11:03 AM | Permalink

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A proposed amendment to the U.S. Sentencing Guidelines as recommended by the entire Supreme Court is the removal of the word shall from the Guidelines manual and replace all mandatory language with the word may, for they are advisory guidelines. Another provision of the Guidelines which violates the Sixth Amendment is the Relevant Conduct provision of § 1B1.3. Elimination of relevant conduct as a required finding post-verdict by the sentencing judge would restore some measure of integrity to the “ostriches” on the U.S. Sentencing Commission. The “deliberate ignorance” of the Commission to the Supreme Court’s constitutional interpretation relegates the “junior varsity congress” to the practice squad. In United States v. Booker, 543 U.S. 220, 160 L.Ed.2d 621, 125 S.Ct. 731 (2005), the Supreme Court held that; when a sentencing judge, bound by mandatory guidelines, increases the sentencing range under the guidelines, based on facts not found by the jury, or admitted by the defendant, the sentence violates the defendant’s Sixth Amendment right to a jury trial.
That right, that the “Trial of all Crimes… shall be by jury,” Art. III §2, U.S. Constitution, was of such import that it was repeated in the most sacred “Bill of Rights” as the Sixth Amendment, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…”. The jury trial right was intended to protect the accused from oppression by the Government. See III Farrand, “Records of the Federal Convention,” 101 (James Wilson), 221-222 (Luther Martin) (1911).
The Supreme Court confronted this issue in Singer v. United States, 380 U.S. 24, 13 L.Ed.2d 630, 85 S.Ct. 783 (1965):
“In no known federal criminal case in the period immediately following the adoption of the constitution did a defendant claim that he had the right to insist upon a trial without a jury…
Mr. Justice Story, while sitting on circuit indicated his view that the Constitution made trial by jury the only permissible method of trial. United States v. Gilbert, 25 Fed Cas 1287 (C.C.D. Mass. 1834)…
In Thompson v. Utah, 170 U.S. 343, 42 L.Ed. 1061, 18 S.Ct. 620, the Supreme Curt ‘expressed a view that the Constitution made jury trial the exclusive method of determining guilt in all federal criminal cases’. Id. Singer @ 32.”

Previously, the Supreme Court in Patton v. United States, 281 U.S. 276, 74 L.Ed. 854, 50 S.Ct. 253, 70 ALR 263, in answering the Eighth Circuit on a certified question stated, “that the government had agreed with the defendant that his trial should proceed with 11 jurors.” Id. Singer @ 33.
The Supreme Court, “believed that trial before 11 jurors was as foreign to the common law as was trial before a judge alone”. Id. Singer @ 33, and in “carefully chosen language” held:
“Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance, and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant….” Id. Singer @ 34.

The Booker court recognized that fact finding was not taking place in the manner required by the Constitution. There were no facts found by a judge in a jury trial, or additional fact-finding by a judge at sentencing, in our Constitutional system of justice, prior to the institution of the mandatory United States Sentencing Guidelines recently ruled unconstitutional.
The Constitution’s Due Process Clause establishes civilized procedures that limit waivers no matter what a defendant or a court may be willing to accept.
“No doubt there are limits to waiver; if the parties stipulated to trial by 12 orangutans the defendant’s conviction would be invalid notwithstanding his consent because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept.” Id. Mezzanatto, @ 706, quoting United States v. Josefik, 753 F.2d 585, 588 (CA7 1975).

The defendant could not demand that the jury be less than 12; or even waive a right to a jury of less than 11, or waive his right to a unanimous verdict of guilt, or waive his right to a finding to proof beyond a reasonable doubt in a jury trial.
The court, or a commission established by Congress, likewise cannot waive a defendant’s rights and impose a system where the judge replaces the jury; the prosecutor replaces the judge, the Probation officer steps in as prosecutor, the indictment is superseded with a Presentence Investigation Report, the beyond a reasonable doubt standard is replaced with a preponderance of the evidence, relative conduct and hearsay are included in determining the punishment beyond the jury verdict, and the statutory punishment on multiple counts can run consecutively to insure that the total punishment is imposed, circumventing the statutory maximum.
And if the previously noted 12 orangutans were the only alternative to the latter, swapping places and roles according to the Guidelines, then bring in the monkeys. At least with 12 impartial orangutans out of the wild, there is a better chance of justice than replacing the orangutans with a “lone employee of the state” paid and trained by the government. Id. Infra.
“A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury.” Id. Singer @ 36. And the “[t]rial by jury has been established by the Constitution as the ‘normal and … preferable mode of disposing of issues of fact in criminal cases.’” Id. Patton @ 312.
Justice Scalia said it well in the majority opinion in Blakely v. Washington, 542 U.S. 296, 159 L.Ed.2d 403, 124 S.Ct. 2531 (2004):
“The Framers would not have thought it too much to demand that, before depriving a man of his liberty, the States should suffer the modest inconvenience of submitting its accusation to the ‘unanimous suffrage of twelve of his equals and neighbors,’ 4 Blackstone, Commentaries, at 343, rather than a lone employee of the State.” Id.

Posted by: Barry Ward | Jan 26, 2006 12:40:46 PM

You're much closer to this issue than I am, and this may be a dumb question, but is it not reasonable for the USSC to essentially take a "wait and see" approach for meantime, while Booker is less than a year old, and the dust is still settling?

Although Judge Bowman laments the Commission's reluctance to do much other than gather data, I think that a large part of its expertise probably comes from that data. On that basis, it seems perfectly reasonable to me for the Commission to step back and see what the world of advisory Guidelines looks like before it begins making recommendations.

Though I will certainly agree that an 88-page publication on sentencing that doesn't mention Booker is really really odd.

(Per your request, I'm a 2005 law school grad/current clerk who read your blog much more frequently during my sentencing seminar last fall (the one between Blakely and Booker)

Posted by: B. Burgess | Jan 26, 2006 2:04:24 PM

B. Burgess: I largely share your "wait and see" philosophy, but these amendments from the USSC reflect a judgment that it can/should now change the guidelines in various ways despite all the post-Booker uncertainty. I'm not especially troubled by the substance of some of the amendments, but I am quite disappointed by the USSC's apparent unwillingness to engage, at least a little bit, with post-Booker realities.

Posted by: Doug B. | Jan 26, 2006 2:54:15 PM

Posted by: richard | Jun 26, 2007 1:51:49 PM

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January 26, 2006

A loud deafening silence from the Sentencing Commission

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