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October 2, 2007

First-cut reactions to the Gall transcript

As I hinted here, I am finding the transcript in Gall more frustrating than enlightening.  My frustration primarily stems from the fact that the advocates failed to explore how the explicit text of 3553(a) can and should give content to reasonableness review.  Particularly disappointing was the failure of Gall's lawyer to stress that the government has never effectively shown --- or even really argued --- that Brian Gall's below-Guideline sentence was insufficient to achieve the sentencing purposes Congress set forth in 3553(a)(2).

Though 3553(a) is has lots of vague language, a number of valuable sentencing principles can and should be derived from the text that Congress enacted (and that Booker made central to the application of an advisory guideline scheme).  Rather than try to concoct an array of legal definitions for reasonableness review, I believe the Supreme Court should simply encourage circuit courts to determine and explain, on a case-by-case basis, whether and how a particular sentencing outcome serves the purposes that Congress set out in the statutory text of the Sentencing Reform Act.  As the last section of Rita suggests, the process should be more important than any specific outcome.  If the process is thoughtful, reasoned, and respectful of congressional broad goals as expressly stated in 3553(a), significant appellate deference should be the norm.  But, if the process is not thoughtful or poorly reasoned, or is plainly disrespectful of the text of 3553(a), then more searching appellate review seems justified.

Venting aside, the competing voices of the Justices in Gall is really intriguing.  Particularly notable is the way in which Justice Scalia seems to be channeling the late Justice Brennan, such as when he suggest it could not possibly be unreasonable for a sentencing judge to say he "thought only in a rare case should there be jail time."

October 2, 2007 at 05:29 PM | Permalink


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Scalia meant that only for white collar cases though, Prof.

Posted by: dweedle | Oct 2, 2007 5:34:53 PM

Dweedle, Most advances in civil rights will be made via white-collar defendants. The only hope for our Republic is that doctrines developed for "us" can be exported to "them."

Posted by: S.cotus | Oct 2, 2007 6:07:55 PM

This may not be on point, but my favorite line so far is this from Breyer:

"What we want -- I think what we want -- is to interpret that word "reasonable" so that we get back to a situation where judges do depart when they have something unusual and maybe occasionally when they think the guideline wasn't considered properly, and then the iterative process takes over, going back to the commission. Now, how do we get there?"

Is there a way to read that other than "what I really want is a return to mandatory guidelines?"

Posted by: JP Davis | Oct 2, 2007 6:37:17 PM

S.cotus: Scalia was talking specifically about what is "normal" and historical punishment for "certain" offenses. He was agitated that the USSC followed Congress' mandate to make fraud and antitrust punishments equitable and just because it makes it much harder for him to get together a golf foursome on the weekends.

When it comes to crack I think he's, shall we say, less concerned since he said repeatedly "Congress said 100 to 1, so it's 100 to 1."

I don't think even I could misread that.

Hope for the Republic? My hope is for the Republic of Texas! Hang 'em high, taxes low, BBQ for everyone!

Posted by: dweedle | Oct 3, 2007 10:05:46 AM

JP: Breyer has always been the most aware they've boxed themselves in. Everyone likes to say it's only because he wants to save his baby, but now it's dawning on the Court that they've really made a huge mistake and they are grasping for a way out that doesn't mean unfair disparity or mandatory GL's (or quasi-mandatory-reasonableness)... but there isn't one.

Posted by: dweedle | Oct 3, 2007 10:13:41 AM

Professor Berman: I was somewhat amazed that no one advanced the argument that the term "exceptional circustances" is a thinly veiled return to "de-novo review" that was rejected in the Booker decion.
The term Exception circumstances" is like the chancellors foot, incapable of definition. Each apellate panel would have it' own definition. Bob Truitt
Asst federal defender for the Federal Community Defenders for the Northern District of Indiana, South Bend division

Posted by: robert d truitt | Oct 3, 2007 10:58:26 AM

Harping on the supposed deficiencies of the advocates on either side as if there were some intuitively obvious "correct" or even logically coherent position they might have taken in these cases is really quite silly. It's not these advocates' fault that this Court has written itself and all the rest of us into a doctrinal box canyon. The justices continue to smash their noses against the far wall while everyone else mills around in confusion. But there is no way forward here. Because the nature of lower courts is that they have to resolve cases, the federal system will somehow muddle along with whatever the Supreme Court says in Gall and Kimbrough. But, so long as the Court refuses to admit that it has made a colossal mistake, overturns Blakely, and goes back to the beginning and reconceives Sixth Amendment jury trial doctrine in a coherent way, the rest of us will be like parishioners not possessed by the Spirit watching the pastor speak in tongues. We can try to impose rational interpretations on the noises we hear, but the rationality will be ours and will owe little to the sounds or the speaker.

Posted by: Frank Bowman | Oct 3, 2007 11:15:44 AM

Hear, hear, Monsieur Bowman! Well put.

Posted by: dweedle | Oct 3, 2007 12:12:44 PM

Can someone please comment on the requirements that uncharged, dismissed and acquitted alleged offenses be used in calculating the guideline range to dramatically increase sentences, at the same rate as if a charge had been brought and conviction obtained.
Whats a good challenge (for defendant)to this?

(Email me please)

Posted by: Rita | Oct 3, 2007 3:46:54 PM

As Professor Bowman makes clear, no one wants to talk about what Apprendi, Blakely and Booker are really all about: the defense bar coopting the judiciary to use the Constitution to lash out sentencing statutes and rules they think are too harsh. It's the old story: "don't like what the political process produces? Go to court and have it declared unconstitutional."

Defendants don't give a damn about jury trials on sentence-enhancing facts; they care about escaping the punishment that Congress and the Commission say is appropriate in their circumstances. Nice going, SCOTUS!

Posted by: Da Man | Oct 3, 2007 4:27:07 PM

I agree, that comment by Justice Breyer really leapt off the page. I cannot recall ever hearing a judge (much less a Justice) admit so openly that his analytical method was first to decide the desired result, then to seek a rationale to get there.

Posted by: Def. Atty. | Oct 3, 2007 5:32:32 PM

Justice Breyer's comment confirms my view that the Booker II remedy and all that follows are nothing more than judicial legislation, directed at achieving a policy preference rather than a straightforward interpretation of the SRA (as circumscribed by the Constitution).

Justice Scalia is right: Congress enacted a mandatory Guidelines regime. (Justice O'Connor understood this at the Booker oral argument, but then voted otherwise.) If that mandatory regime is unconstitutional, it is up to Congress, not the Supreme Court, to fix it.

In the meantime, mandatory Guidelines with jury findings for enhancement facts would (a) respect both the statute and the Constitution, and (b) spur Congress to act if such a regime was not to its liking. Because the Court has taken on the burden of fixing the SRA instead, Congress has been able to stand passively by.

Of course, it looks a little late for that now. But with due respect to Professor Bowman, the decision that needs revisiting is not Blakely (or Apprendi), but Booker II.

Posted by: Def. Atty. | Oct 3, 2007 5:41:37 PM

Def. Atty: Breyer was very upfront in many ways. Another passage I noted was on page 22:

"what I want to figure out here by the end of today is what are the words that should be written in your opinion by this Court that will lead to considerable discretion on part of the district judge but not totally, not to the point where the uniformity goal is easily destroyed."

Now I may be reading tea leaves here, but given the history of Claiborne, and how a ruling there must have been already more or less decided when Claiborne died, I read this as Breyer saying "Okay, here's what the majority opinion will be, give me a way to join it." But again, that may be reading too much in.

Booker II is a remedy written by the people who didn't think there was a problem in the first place (and Justice Ginsburg, who I simply do not understand). Is it any wonder it's such a mess? What surprises me is how unwilling discretion advocates are to stand up and say what Scalia is saying: the Congressional goal of rigid uniformity is simply incompatible with the Constitution under the current sentencing regime. There are ways to make sentences more uniform, but direct curtailing of discretion from above (Congress or appellate courts) simply does not work.

Posted by: JP Davis | Oct 3, 2007 7:17:37 PM

Prof. Bowman,

I am confused as to how reversing _Blakely_ would possibly result in an intellectually coherent sentencing scheme. The result in Blakely was essentially mandated by Apprendi, there are no two ways about it. To establish a different jurisprudence, you would have to go back to Apprendi itself and overturn the fundamental rules expressed therein. The real issue here is not Blakely, it's Booker II. The true intellectual and pragmatic schism is reconciling the result in Booker I with Booker II's absurd attempt to duct-tape the broken Guidelines back together.

Posted by: JP Davis | Oct 3, 2007 7:25:46 PM

JP Davis:

Reversing Blakely would not, in itself, produce intellectual coherence. But it would remove the primary barrier to intellectual coherence. Apprendi, though it contains dicta that spawned the Blakely/Booker mess, is actually a very narrow holding that did little more than reinforce the traditional understanding of the proper spheres of authority of the legislature, juries, and judges in defining and punishing crime. If you'd like my take on what an intellectually coherent scheme would look like, see "Function Over Formalism: A Provisional Theory of the Constitutional Law of Crime and Punishment," 17 FEDERAL SENTENCING REPORTER 1 (October 2004).

Posted by: Frank Bowman | Oct 4, 2007 10:39:50 AM

Prof. Bowman,

I'm afraid that I have to respectfully disagree that your proposal is intellectually coherent with the principals enshrined in the Sixth Amendment, but that's a debate for another time. What I would like to note is that the Apprendi-to-Booker-I jurisprudence is actually remarkably intellectually coherent. The problem is that, as you yourself acknowledge, it throws out everything Congress has built based on the Guidelines. My response is simply, "so what?"

There is no theory of laches applied to the Constitution. Just because Congress has been allowed to create an elaborate system with an unconstitutional base doesn't mean we should shy from abolishing that system when the defect becomes apparent. Intermittent chaos will result to some extent, but Booker and Blakely went part of the way down that road and yet from where I sit the sky hasn't fallen. The lack of intellectual coherence in the current jurisprudence is due to the Booker II majority's unwillingness to own up to the task before them and commit to either accepting the Guidelines as a subset of criminal code requiring jury findings or make them truly advisory and honestly non-binding. Whether you like the outcome or not, either choice is intellectually coherent and accords with the Sixth Amendment.

Gall could remedy Booker II's wrong to some extent by holding that substantive review is dramatically limited (to make a 100% coherent scheme, I think we have to go with Justice Scalia's vision, but that seems unlikely given Stevens and Ginsburg's stances in Rita). Now whether the Court will own up to that remains to be seen.

Posted by: JP Davis | Oct 4, 2007 5:02:42 PM

JP Davis:

The problem with the Apprendi-Blakely-Booker line is not that it emasculates the Federal Sentencing Guidelines, but that, as Scalia belatedly recognizes in his Rita concurrence, it permits of no logical intermediate position between a system in which juries determine every fact relevant to sentence outcomes leaving judges no discretion at all and one in which, within the absolute limits set by jury finding or defendant plea, trial judges have absolute and unreviewable discretion. In short, the Court finds itself wedded to a doctrine that, if faithfully applied, prohibits application of law in any form to discretionary sentencing choices of district judges. Scalia gets half-credit for dogged adherence to the logical consequences of his ill-conceived premises, but no credit at all for either common sense or fidelity to the Sixth Amendment. Indeed, his Rita concurrence may be the only time I've ever seen a judge embrace the reductio ad absurdum refutation of his own position as a sensible and desirable interpretation of the Constitution.

Like so many mesmerized by the supposed clarity of the Blakely-Cunningham "bright line rule," you are distressed that in Booker and again in Rita the Court seems to be backing away from the implications of that rule. I'd suggest that, with the exception of Justice Breyer, they are doing so, not because of any love for the Guidelines per se, but because they have finally started to figure out the logical and practical absurdity of the original Blakely rule.

You, like the Supreme Court itself, seem to be focused on the effect of these cases on the Federal Sentencing Guidelines. Indeed, it seems quite clear that the fundamental error behind this entire line of cases is that the Court views the sentencing world through the lense of its, and the federal judiciary's, experience with a federal system that is an outlier in American criminal law. In its obsession with the peculiarities and deficiencies of the federal system, the Court has distorted a body of constituional law the primary application of which is to state systems, virtually none of which have the problems that most concern the court.

The result is wierdly distorted Sixth Amendment doctrine that has had little beneficial effect on the defective federal system that was its target, has warped state systems that were working just fine, and has made real sentencing reform nearly impossible inasmuch as would-be reformers can't be sure of the constitutional foundation upon which their efforts would have to rest.

Posted by: | Oct 5, 2007 12:53:30 PM

Anon. (Prof Bowman?),

You say: "The problem with the Apprendi-Blakely-Booker line is not that it emasculates the Federal Sentencing Guidelines, but that, as Scalia belatedly recognizes in his Rita concurrence, it permits of no logical intermediate position between a system in which juries determine every fact relevant to sentence outcomes leaving judges no discretion at all and one in which, within the absolute limits set by jury finding or defendant plea, trial judges have absolute and unreviewable discretion."

Nonsense. Justice Scalia's statement in his Rita concurrence encapsulates the middle ground perfectly: Congress can, as they have done, set the rules by which Judges consider. If Congress says "Thou shalt not consider a defendant's hairstyle in determing a sentence," then the judge who says "He gets the max due to his ridiculous pompadour" will be reversed. Procedural reasonableness review remains intact, and probably extends far enough to capture the substantive concerns raised by Stevens in his Rita concurrence. Thus, Congress has said "You shall consider the Guidelines," and any sentence imposed today, no matter how objectively reasonable it may be, is subject to reversal if the judge skips the Guidelines calculation phase. There is nothing unconstitutional about that. The only limits on what Congress can tell a judge to consider or not consider is that Congress can't say "You MUST raise the sentence based on facts not found by the jury."

In reality, the system which you propose as the diabolical end result of the current jurisprudence already exists: within the Guidelines range. I have never seen a sentence reversed on the grounds that it was within the appropriate Guidelines range, but in the wrong area of it. This is an area in which judges have absolute, unfettered discretion to choose what sentence the defendant gets based on anything, anything at all, that they want. And so Justice Alito's three identical Gall cases with three different outcomes could very well exist today, with one case landing at the top of the Guidelines range, one in the middle, and the other at the bottom, and no one would lift a finger to stop it. The intellectual concerns you voice have no less weight here, it's just that we say that (looking at level 39 category I, for instance) the difference between 21 years and 28 years is so small we don't care.

In terms of the Court "backing off," I'm not sure it has done so yet, with the exception of Ginsburg in Booker II... I don't think Rita is a backing off at all, but that the result must be read in conjunction with the forthcoming Gall to be understood correctly.

I will admit, the most basic problem I have with the anti-Booker position is a fundamental one. In context of the origins of the jury system, how can the Sixth Amendment have any meaning whatsoever if we allow people to have their punishments increased by legislative fiat based on facts that were never tried before a jury with a reasonable doubt standard? Why then do we have juries at all?

Posted by: JP Davis | Oct 5, 2007 3:30:40 PM

I'm a bit late coming to this discussion since I have been in trial, but would like to make a comment that I think Mr. Bowman has missed the motivating force behind Apprendi. I believe that the driving force was (as Justice Stevens acknowledged in his Recuenco dissent) that before deciding whether to plead guilty or not guilty to a criminal charge, a citizen should be on notice of what it is that the state alleges he did wrong and what level of punishment he is exposed to upon a conviction. Before Apprendi/Blakely that was not possible.

I've been a defense lawyer for 34 years and when I started if my client was charged with felonious larceny I could tell him that , based on what the state accused him of doing , he was looking at a certain maximum possible sentence if he pleaded not guilty and went to trial.

After North Carolina enacted the "Structured Sentencing Law" it became impossible for me to tell a client what was the worst thing he was facing if he went to trial. Because of things called "nonstatutory aggravating factors" prosecutors could ask a judge to find facts (or judges could simply find these facts themselves) which increased the defendant's possible punishment by several years above the maximum allowed for the crime the defendant was indicted for.

I vividly remember a trial ten years ago in which the prosecutor told me he didn't see any statutory aggravating factors in the case. We went to trial and after a jury verdict of guilty but before sentencing, the DA leaned over to me and said, "I wonder what nonstatutory aggravating factor that neither one of has thought about the judge is going to find to increase the sentence?"

To me notice of what the state alleges you did wrong is the "grandaddy" of all constitutional rights. What good is the confrontation clause if you don't know what you are being confronted with? What good is a lawyer if he or she doesn't know what crime they are defending against?

Mr. Bowman, it strikes me that your view of Apprendi is divorced from the real world in the courtroom and the importance of a defendant knowing , in Justice Scalia's words , what crime "the state actually seeks to punish." Blakely.

Bruce Cunningham

Posted by: | Oct 5, 2007 11:24:25 PM

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