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February 20, 2007

Justice Scalia's Theory of Appellate Review and the Sixth Amendment

[Posted by Ron Wright]

The oral argument transcripts for Rita are now available online. On a quick first read, something interesting jumped out at me. Justice Scalia seems to be constructing an argument that a specialized form of Sixth Amendment violation happens when appellate courts review sentences:

Mr. Cochran, I have this concern: If we accept your submission that the district court should just consider the guidelines together with everything else, give them a presumption of validity, anything else, just something to consider, that would presumably eliminate any Sixth Amendment problem with the district court's findings of fact. 

But the district court's sentence is going to go on appeal. And the appellate court in reviewing it for reasonableness, let's assume in this case the appellate -- the appellate court says oh, no, this person had -- we find as a matter of fact, given the record, military service, you know, which we think should have been taken into account. And, therefore, we set it aside.

Now, the next case that comes up, which doesn't have the element of military service, in all other respects the same as your client's case, it comes up to the court of appeals, and the court of appeals would say, ah, we don't have that different fact here and therefore we affirm the sentence. Isn't -- in other words isn't the finding of a fact necessary for the process of judicial review, even if it is not made necessary for the purposes of the district court's determination? He would not get that sentence but for this fact.

So it appears that Justice Scalia is adding new reasons to believe that the Booker remedy is, in practice, inevitably going to conflict with the requirements of Blakely. Very active questioning also came from Justices Breyer and Ginsburg, with fewer questions from Justices Kennedy, Souter, and Alito, and from Chief Justice Roberts.   

February 20, 2007 at 03:28 PM | Permalink


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Breyer's over-the-top questioning defended the Guidelines and Booker's remedial holding as a parent would a child.

Posted by: | Feb 20, 2007 3:40:06 PM

Scalia's argument is exactly the same one presented in Alito's dissent in Cunningham -- except Alito's dissent reasoned from the premise that all reasonableness review would implicate the sixth amendment if apprendi were taken seriously under the statutory maximums (as defined by the legislature) and the futher premise that booker said reasonableness review was constitutional to the conclusion that, essentially, apprendi could not be applied under a statutory maximum. In other words, Alito argued that Booker overruled Blakely.
I dont think this is Scalia's agenda, but I am troubled to see him reproducing Alito's logic, particularly in questioning the defendant.

Posted by: RW | Feb 20, 2007 4:08:12 PM

I did not sense that it was a good day for Rita at the Supreme Court.

Posted by: Marc Shepherd | Feb 20, 2007 4:37:43 PM

Why do you say that, Mark? I take it this case hinges on Justice Ginsburg's vote; did she say anything to suggest that she's inclined to follow Justice Breyer here as she did in Booker?

Posted by: Brian | Feb 20, 2007 4:40:33 PM

Sorry, I meant "Marc."

Posted by: Brian | Feb 20, 2007 4:41:26 PM

I think Scalia knew exactly what he was doing. Alito, in Cunningham, signalled his view of Rita and Claiborne. I think that Scalia's question was aimed directly at the logical effect of Alito's Cunningham opinion. He's defending the Booker majority merits decision AND the remedial dissent. He doesn't want "reasonableness review" to recreate a mandatory-in-all-but-name set of Guidelines, and his question is aimed at "factfinding" at the appellate stage.

Mistretta-Apprendi-Blakely-Booker: Scalia's been wonderfully insightful about the ROLE of the courts -- district, CoA, and SCOTUS -- in sentencing, and his interpretations of separation of powers and the Sixth Amendment have been (from my perspective) consistent and strong. If the Court (and, specifically, Justice Ginsburg) is willing to back up the Court's Booker merits decision with a good decision in Rita and Claiborne (one that makes the Guidelines advisory in practice as well as in name), it will represent a triumph for Justice Scalia that has taken almost twenty years.


Posted by: Mark | Feb 20, 2007 4:46:04 PM

The arguments in Rita and Claiborne, as I had hoped, were compelling, spirited and ultimately frustrating, as the Justices seemed to be defining nothing so much as the box they placed themselves in through the Booker remedy. By making the guidelines advisory but subject to a "reasonableness" standard on appellate review, Booker planted the seeds of its own destruction. As today's questioning drew out, the precedent built up by the Courts of Appeal over time may well recreate the very 6th Amendment dilemma that was presented by the mandatory guidelines. That is, if the 2d Circuit holds that 12 months in prison for a given crime is unreasonable, but 18 months is reasonable absent additional facts... how is that different than the mandatory guidelines, other than the body creating the limits?

Hmmm. Good question. One thing this illustrated is that a case like this is, as much as anything, a convergence of three groups who have separate conversations. The government side came up with their view of what was important, those on the defense side had a completely separate conversation, and the Court had a third thoroughly distinct dialogue. The arguments this morning revealed that perhaps these three conversations had completely different topics. To the defense side, it was about the parsimony provision of 18 U.S.C. 3553; to the government, it was about proportionality as the basis for reasonableness; and for the Court, it was the role of the 6th Amendment in all of this as circuit court precedent builds up, brick by brick. This morning's argument was perhaps not so much a meeting of two adversaries before a tribunal so much as a meeting of three groups who had looked at different parts of the same elephant.

Also, Justice Breyer gave a fascinating defense to one of his motivations for favoring advisory guidelines over jury findings on sentencing issues: If we turn such things into jury questions, this will give even more discretion to prosecutors, who will control the process through what evidence they put before that jury, and what special issues they seek to have determined. While I have often worried about (and written about) the shift of discretion over the past 25 years from judges to prosecutors, for some reason this aspect of jury findings at sentencing had not been part of my thinking.

As always, a great debate creates more questions than answers.

Posted by: Mark Osler | Feb 20, 2007 4:50:44 PM

I can't wait to read the unanimous opinion in Rita. Good luck with that one, Chief.

Posted by: | Feb 20, 2007 5:24:53 PM

I predict that the majority will hold that the standard of review is the same in all cases, without resort to some special presumption of reasonableness for those sentences within the guidelines. Trial judges will be encouraged to state reasons in all cases to facilitate that deferential review. Just because "sentences that are outside the guidelines range are more likely to be the cause of or a source of unwarranted disparity than a sentence within the range" does not mean that you must have two different standards of review. Yes, those outside the guidelines are more likely to be reversed under any standard of review, but, respectfully,....so what? Why does that mean we need two different standards of review.
Michael McMahon
Ventura, California

Posted by: Michael McMahon | Feb 20, 2007 5:56:19 PM

Uniformity is such a boondoggled red herring on the part of the government. If they cared one bit about uniformity they wouldn't offer 5K1 and turn people into snitches. Meanwhile the vast majority of people are being sentenced in state courts to 55 years, 200 years, 24 years, 78 years, all over the place, for non-violent and violent crimes alike. Here in Texas we have pure judge and jury sentencing, no guidelines at all. Every noncapital felony by a first offender is eligible for probation to life. Needless to say, there is huge disparity. Some people charged with murder DO get probation (usually a battered wife who couldn't take it anymore case). Some people charged with selling heroin get life. The US government has never investigated Texas courts, nor ever complained about "disparity." There will always be sentencing disparity, and I'm saddened to see the government trying to use this as a justification for de facto mandatory guidelines, and I'm saddened to see the Court falling into this trap and actually worrying about it. No two criminals have equal situations, so "sentencing disparity" is irrelevant other than in the rare situation where there is some evidence that race, religion, etc. played a part, all else being fairly equal.

Posted by: Bruce | Feb 20, 2007 6:04:46 PM

Mark Osler,

Huh? The prosecutor retains discretion even under a pre-Booker/pre-Apprendi system. The only difference is that the prosecutor decides what issues to present to the judge, as opposed to the jury. It's not like the judge can go on a factual fishing expedition without some assistance from the prosecutor. To the extent a prosecutor is prohibited from "swallowing the gun" by an executive order, I think that prohibition would apply regardless of whether the judge or jury is the relevant factfinder.

In the long run, defendants are clearly better off having their fates decided by a jury using a higher standard of proof. Period. There is far less a risk of bias and abused discretion.

Posted by: Aaron Katz | Feb 20, 2007 6:11:57 PM

I think you are probably right, but I am troubled to see Scalia develop this line of inquiry as a series of questions posed to the defendant.
I think that the way the judges engage this question will probably determine the outcome. Alito, Kennedy, Breyer, and possibly Roberts will all agree that such precedent-made guidelines are indistinguishable from the mandatory guidelines before Booker. Scalia and Thomas will see such precedent-made guidelines as indistinguishable from the pre-Booker Guidelines, and will see that as a reason to refrain from endorsing or enforcing the Booker remedy, like he promised to do in Dickerson. The center, then, will find a way to distinguish these two sets of Guidelines -- the question is whether they will agree that the presence or absence of a presumption of reasonableness for the Guidelines is the key to this distinction. I don't see the defendants picking up Ginsburg.
In any case, looks like another 100 page super splintacular opinion.

Posted by: | Feb 20, 2007 6:45:23 PM

I think it must be pointed out that much of the concern about sentencing disparity comes not from race or religion, but is based on the fact that in a wholly discretionary sentencing system, which judge a defendant happens to be sentenced by can make a large difference in the sentence, given identical facts.

Posted by: Jacob Berlove | Feb 20, 2007 7:28:55 PM

I have had a full day (and two meals) to think about, digest and talk with others about what I saw this morning. All told it did not feel like the defense had a good day, especially in the Rita case.
The Sixty four thousand dollar question was really asked of the Deputy Solicitor General
at the end of the Rita argument by Souter and Scalia, that being "does the Constitution (actually the sixth amendment)deny the appellate courts from ever setting a standard for reasonableness?
Both the Solicitor and Scalia said under the merits part of Booker, it does in fact.
If that is so, doesn't that truly mean that the Congressional "goal" of sentence uniformity is also unconstitutional?
If the Congressional priority is actually uniformity, then isn't that best achieved by only permitting sentencing on what a jury finds or a defendant admits, and a sentencing scheme with very narrow minimums and maximums increased only by history of criminality?
That is what I walked away with ultimately.

Posted by: That Lawyer Dude | Feb 20, 2007 11:00:57 PM

The Texas style system allows for too much disparity, and does so by preserving unfettered discretion. This opens the door to too much liklihood of abuse(s) of that discretion.

The discretion must be bounded by some rules aka guidelines that are objectively reasonable and barring the "objective"(ness), at least reasonable to a reviewing court. Defendants, and the public held accountable to the laws, must know to a reasonable certainty what they are facing when they take a case to trial, vis a vis taking the plea. This mechanism/aim achieves the "uniformity" sought (which is impossible to achieve but a thing to seek after nevertheless). Obviously too much uniformity is something that needs to be avoided equally as much as too much discretion.

[so now I can go read the transcripts]

Posted by: "Major" Mori | Feb 24, 2007 5:00:31 AM

I would just add, after reviewing transcripts, that a presumption of reasonableness would not be the best way to handle this. De novo reasonableness review enables the courts to preserve the desired discretion, and avoids giving the appearance that district decisions would be presumptively upheld.

Also, that avoids the incongruous conclusion that the district court's findings of facts are given a presumption, where those findings were actually in the nature of "legal" conclusions derived from interpreting the guidelines. That is really what must be left up to reviewing courts to decide, de novo, of course as a matter of law.

Posted by: "Major" Mori | Feb 24, 2007 6:22:59 AM

I found your blog today. I am a 58 year old semi retired attorney living on a sailboat in New Bern NC after 32 years of practice of law in St. Louis, MO --state and fed cts with a wide range of civil rights cases. Not many criminal cases. Doing appeals and consultant work i.e. second chairing jury trials--working hard with no overhead or client calls. While your blog is about sentencing I see a wide reach of "the Due Process Clause of the Fifth Amdt taken together with the notice and jury trial provisions of the Sixth Amdt." Like eliminating Rule 404B evidence in a criminal trial. Or limiting the evidence adduced at trial to crimes and items charged in an Indictment.

Posted by: Pete Bastian | Feb 26, 2007 5:40:33 AM

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