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January 24, 2007

A fine overview of the sentencing scrambles

070123_juris_courtstn Emily Bazelon, who way back when wrote this great Boston Globe story focused on Justice Breyer's central place in federal sentencing reforms, now has this new Slate commentary discussing Cunningham and the Supreme Court's modern sentencing jurisprudence.  The piece is entitled "Diagramming Sentences: The Supreme Court's war on sentencing guidelines," and it has many fine insights and flourishes as it takes stock of the Supreme Court's work in the Apprendi line of cases.  Here are just a few of my favorite passages:

The California case is the latest battle in a strange war that has turned natural judicial enemies into allies, set Congress against the courts, and given law professors a new life's work.  Some of the justices probably have had their eye on easing the sentencing load on defendants, more and more of whom have been getting locked up for longer and longer periods.  But the court can't make pro-defendant reform its explicit aim — that sort of policy decision is the legislature's job, after all, and in any case the cobbled-together majority behind the recent decisions would never hold together. So, for now, at least, the court's war on sentencing has enraged the lower courts and left the law in a shambles.  These cases showcase destruction — this is what it looks like when the Supreme Court lays waste.

Is it a good idea to toss out sentencing schemes like California's and the federal guidelines?  That's a hard question....  On the margins, at least, the Apprendi cases have helped loosen sentencing straitjackets.... On the other hand, as federal appeals judge Michael McConnell argued last year in a law-review article, the Supreme Court's new approach may have derailed a push for broader sentencing changes....

Cunningham is only the court's first word on the subject this term. In two cases to be argued next month, the court will fill in more detail about how much discretion federal judges actually now have. Doug Berman, law professor and sentencing blogger extraordinaire, thinks that both cases look like vehicles for additional change and leniency. In one, the defendant is a military veteran whose perjury crime looks more like a misunderstanding than a deliberate lie. In the second, an appeals court supplied the facts it relied on to reverse the sentencing break given by a trial judge. Get ready for more destruction.

January 24, 2007 at 12:59 AM | Permalink


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Aren't the policy arguments beside the point? A defendant has a right to a jury trial here in the US. That is the categorical imperative, is it not? The problem, it seems to me, is that we could never have a statute such as this: "Any robbery committed with a firearm shall be punishable by no more than 5 years imprisonment, unless, upon conviction, a judge determines that a death was the proximate cause thereof, in which case the punishment shall be life imprisonment." But how does one draw a principled distinction between that formulation and the facts in Apprendi? If the hypothetical offends the jury right, which is an absolute where it engages, then how can Apprendi not do so? And on what basis can the judiciary say that Apprendi doesn't go too far, but my formulation does.

Thus, as disruptive as Apprendi and its descendants have been, it seems to me a necessary evil.

Posted by: federalist | Jan 24, 2007 1:51:07 AM

So, federalist, you're with Scalia, Roberts, and Thomas. I think Ms. Bazelon is surprised that she, along with Souter, Ginsberg, and Stevens, are as well. I'm not so sure, though, that she's right that the latter justices voted to reaffirm jury trial rights at sentencing for policy reasons.

Posted by: rothmatisseko | Jan 24, 2007 5:02:28 AM

When people are surprised to see Scalia and Ginsburg on the same side of an issue, it is merely because they have overly restrictive definitions of the words "liberal" and "conservative."

Posted by: Marc Shepherd | Jan 24, 2007 8:15:24 AM

Now that I've had a chance to read it, several comments in the article seem particularly silly:

"The 2000 case that got the court started, Apprendi v. New Jersey, seemed to unveil a new constitutional right."

Justices Scalia and Thomas are about the last guys on earth that would unveil a new right. In their minds, they were reviving a right that had always been there. (I'm not suggesting that the other Apprendi justices thought they were inventing a new right, either; only that it's a particularly absurd charge against S & T.)

"Some of the justices probably have had their eye on easing the sentencing load on defendants, more and more of whom have been getting locked up for longer and longer periods."

This presumes that Justices first decide which policy outcome they want, and then fabricate a legal analysis that will produce it. Why is it so difficult to believe that Justices are actually sincere in what they write about the law?

It's true that some of the Justices have complained publicly about excessive sentences. The loudest complainer has been Justice Kennedy, and he has consistently dissented in the Apprendi line. Surely if any Justice would be inclined to join Apprendi for "results driven" reasons, it would be Kennedy.

Posted by: Marc Shepherd | Jan 24, 2007 8:26:21 AM

I agree with the first 2 commenters. Of journalists who cover the judiciary, Bazelon is one of the worst for treating judges like closeted legislators playing a game. I've never seen her quite as blatantly explicit as this before, but it's really annoying.

Some of the justices probably have had their eye on easing the sentencing load on defendants, more and more of whom have been getting locked up for longer and longer periods. But the court can't make pro-defendant reform its explicit aim — that sort of policy decision is the legislature's job, after all, and in any case the cobbled-together majority behind the recent decisions would never hold together.

If she thinks the justices are this dishonest, she should explain why. As I read the Apprendi line of cases, the proponents of Apprendi read the rule as an inevitable consequence of the "beyond a reasonable doubt" requirement. Ms. Bazelon's suggestion that the Apprendi majority is an unwitting alliance between pro-defendant justices and pro-prosecution justices who all happen to believe that Apprendi will give them the results they want... well, it's another sad example of the disservice the media often does to the public in the way it covers the courts.

Posted by: | Jan 24, 2007 10:08:42 AM

For once in my life, I agree with federalist. Apprendi and its progeny are all rightly decided (except Recuenco, which is based on Neder, and both of those are wrong). "Necessary evil" is as good a description as I've seen. The cases are only "disruptive" becuase the system - judges, prosecutors, defense attorneys - had gotten fat and happy on the old system.

The Apprendi line could be the death of sentencing guidelines, as the piece predicts. But only if state legislatures and Congress are cowardly and use the cases as an excuse to further ratchet up sentences. The best solution is to combine pre-Blakely guidelines with Blakely's requirments. Kansas shows that adding a jury-trial right on agg. factors doesn't result in increasing jury trials or decreasing sentences or plea bargains.

Posted by: Anon | Jan 24, 2007 12:25:16 PM

Yes Bazelon’s results-driven theory is probably unfair to at least some justices in the majority, and doesn’t explain Kennedy’s vote. (Tho’ the justices do probably tend to focus excessively on federal sentencing, and some would argue that the end result of Booker I and II is right, even if the reasoning is wrong.)
My objection to Bazelon’s comments, and several of those posted above, is that they lump together Apprendi and its “descendants,” “progeny,” or “line.” Surely Apprendi was right – no one should be found guilty of one crime, then sentenced for a more serious one. The New Jersey law was a clear evasion of jury trial, reasonable doubt, and other core trial guarantees. But just as surely, this was not what was going on in Blakely; the Washington guidelines operated within existing criminal laws and reduced rather than expanded judicial sentencing power. Thus, the Blakely decision didn’t restore jury control and reasonable doubt standards that were at risk of being undermined by guidelines; that decision extended these standards to factual issues which had never, in modern times, been subject to jury trial and proof beyond a reasonable doubt. The Blakely-Booker-Cunningham majority’s answer to this seems to be – we need an overbroad, bright-line rule keyed to any “facts” which increase the potential sentence, rather than being keyed to the “statutory maximum” and/or assessments of legislative intent to evade trial rights. Perhaps that’s true. But this approach suffers from the defects and controversy of any very overbroad rule, especially one that favors defendants – like Miranda. A further irony of Blakely is that Scalia accepts an overbroad, pro-defendant bright-line here, yet he’s barking mad about Miranda and its re-affirmation in Dickerson. He’d probably say, “my vote here is based on original meaning.” But in that case, he’d also have to strike down broad indeterminate sentencing laws which, to an even greater extent, conflict with the jury’s role in the founding era.
Fortunately, as the last post above notes, Apprendi-Blakely-Booker-Cunningham is not the death of all guidelines; besides the Kansas example cited, Minnesota, Washington, North Carolina, and several other states are preserving the most important features of their systems (including the ability to predict and manage growing prison populations) while providing jury trials when needed to comply with the Court’s rulings.

Posted by: Richard Frase | Jan 24, 2007 1:57:14 PM

Scalia was completely right in Dickerson. It's one of his best dissents.

As for Apprendi and the jury trial right, the jury trial right is an absolute when it engages, but that absolutism cuts both ways, when it does not engage, it's hard to argue that a certain policy derogates it. Thus, indeterminate sentencing laws should be untouched, even though as a policy matter, we may not like them.

Posted by: federalist | Jan 24, 2007 2:25:02 PM

There's no need to reague Blakely here. But what Mr. Frase argues for is a difference only in wording and phrasing. State law called for sentence X for Apprendi if the jury found him guilty and X + 10 if the judge made an additional finding. State law called for sentence Y for Blakely and Y + 10 if the judge made an additional finding.

If Apprendi's sentence was imposed in an unconstitutional manner, then Blakely's was too. Any other result is just word-play.

Posted by: Anon | Jan 24, 2007 3:42:44 PM

Have anyone of you actually SEEN (i.e., in person, sitting in the courtroom) a federal judge give a defendant a harsher sentence because the judge finds, for example, that "the defendant also committed another crime that the jury did not convict him of"?

I have, and I can't recall seeing a more nauseating sight. "Conviction by judge" is so inherently offensive that it is no wonder the Framers made sure that the original Constitution AND the Bill of Rights mandated a right to jury trial. Apprendi, Blakely, and now Cunningham are three steps toward what I hope (and think) will be the ultimate end-point -- trial judges will no longer be able to justify their sentences by resorting to judge-found facts (other than perhaps the defendant's prior convictions).

Posted by: Aaron Katz | Jan 24, 2007 4:58:36 PM

Most upward departures in guidelines states are based on facts that do Not constitute “another crime that the jury did not convict him of" (Washington law specifically prohibited courts from departing upward based on facts that would constitute the elements of another (uncharged) crime). Again, that’s the difference between enhancements like those in Jones and Apprendi, versus upward departures under state guidelines. Those who refuse to recognize any distinctions or missed stopping points in the Court’s cases should also be careful what they wish for; the “ultimate endpoint” of Apprendi, Blakely, and Cunningham may not be fully trial-type sentencing hearings (assuming that is desirable), but rather a return to the far more lawless approach of indeterminate sentencing.
So yes, we DO have to “re-argue Blakely.” If that decision was correct, then so is Cunningham. If Blakely was wrong, then the Court ought to be looking for ways to limit further expansion. I do believe Blakely was wrong, for the reasons cited in my post (the above comments don’t really address those reasons, or even concede that it would have been possible to decide Blakely the other way). I therefore think its unfortunate that the language of Cunningham, as well as its six-justice majority, suggest an intent to further expand Blakely.
Finally, this is about more than “just word-play;” Blakely matters both practically and jurisprudentially. Practically, it has caused several states to downgrade their guidelines to be merely advisory, and may discourage other states from adopting any kind of guidelines. (I believe legally binding guidelines have been a good thing in the states that have adopted them; others may disagree, but going back to Bazelon’s comments -- legal doctrine should not be results-driven.) Jurisprudentially, it’s important to recognize when the Court has choices, and picks one over the other(s). If you read Apprendi, the case that foreshadowned it one year earlier (Jones v. U.S.), and the 2002 minimum-sentence case (Harris v. U.S.), you will see lots of language about sentencing within versus above the statutory maximum; you’ll also see repeated and clearly- expressed concerns that legislatures might undercut jury and reasonable-doubt standards by re-defining elements as mere sentencing factors. Blakely could have been decided the other way on either of those narrower grounds, and I think that it should have been.

Posted by: Richard Frase | Jan 24, 2007 6:13:28 PM

But that's cowardly - don't decide a case a certain way, court, because if you do the legislatures will screw all the defendants even worse than they do now! That's no way to run a legal system.

Sure, the Wash legislature never intended the aggravating factors it came up with to be elements. But the New Jersey legislature never intended the hate-crime enhancer to be an element either. Both are because they're facts that increase the sentence beyond what the jury's verdict authorizes. Any other standard is just a squishy "tail that wags the dog of the substantive offense" thing, which gives no guidance to legislatures and, more importantly, no protection to defendants.

Maybe Apprendi is wrong as a matter of constitutional law. If Apprendi is wrong they're all wrong. But if Apprendi is right, they're all right.

Posted by: Anon | Jan 24, 2007 10:54:38 PM

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