« Two important (but unpublished!?!) defendant wins in the Eighth Circuit | Main | After 220 years, should the Second Amendment stay minimalist? »

March 4, 2008

A must-read on the politics of sentencing on a big election day

Just before I head out to vote, I got an e-mail from Stephanos Bibas with this message: "Max Schanzenbach, Emerson Tiller, and I have just completed and submitted for publication the enclosed essay, entitled Policing Politics at Sentencing.  We hope you'll post it to your blog and welcome comments."  Not only will I happily post the essay below, but here is the abstract for ready reader consumption:

ABSTRACT: In the recent Booker, Rita, and Gall cases, the Supreme Court continued to loosen federal sentencing law without exploring the implications of broader trial-court sentencing discretion. Drawing on our previous work in positive political theory, this essay argues that binding sentencing guidelines are necessary to constrain trial-court discretion and permit meaningful appellate review.  The Court has taken too rosy a view of trial-court sentencing discretion, undervaluing appellate review as a check on policy and ideological variations. Moreover, its case law discourages the transparency needed for appellate review and public scrutiny. Finally, this essay considers what guideline sentencing ought to look like if we could build it from scratch.

Download policing_politics_at_sentencing.doc

For a host of reasons, I suspect I may not agree with much of this piece, largely because I fear that the authors may have a far too rosy a view of "appellate review as a check on policy and ideological variations" in the actual operation of the federal sentencing system.  Since the authors have requested comments, I'll here provide a quick two-point take on the basis for my concerns:

1.  Well before Booker, much of the variation in sentencing outcomes resulted from the failure of appellate review to serve as a check on policy and ideological variations.  Congress was forced to enact the Feeney Amendment largely because the (1) federal prosecutors and (2) federal circuits had taken such widely divergent views concerning the application and limits of departure authority when the guidelines were still mandatory.

2.  If appellate review is so obviously a positive good to achieve the sentencing reform goals that Congress seeks and that justice demands, the frequent uses of appeal waivers in plea agreements by the Department of Justice — both before and after Booker — would be extremely suspect and should not be so consistently approved by the very appellate courts that this article champions.  As detailed in this post from 2005, Nancy J. King and Michael O'Neill did some ground-breaking empirical work on appeal waivers in a piece entitled "Appeal Waivers and the Future of Sentencing Policy."  They found that discretionary and disparate use of appeal waivers by prosecutors, and not greater district court discretion, might be the root of many federal sentencing problems.  Disconcertingly, from a quick scan, I do not see any mention of appeal waivers or the King & O'Neill research in this new essay.

I hope to comment further after I read closely more than just the essay's abstract.  In the meantime, I hope others might comment on the piece while I go wait in line in the rain to vote.

March 4, 2008 at 12:45 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference A must-read on the politics of sentencing on a big election day :


Dude, where's the essay?

Posted by: Dude | Mar 4, 2008 12:43:56 PM

I am a "career" federal law clerk, who practiced criminal law in state and federal court from 1992-2001. My experience has been that there is no effective appellate review and that the guidelines had completed gutted trial court sentencing discretion.

Posted by: dg | Mar 4, 2008 1:03:06 PM

Based just on the abstract, I think the authors are mistaken to suggest "[t]he [Supreme" Court has taken too rosy a view of trial-court sentencing discretion, undervaluing appellate review." The Justices have not dictated a "view" on the pros and cons of trial court discretion or appeallate review. Rather, Booker/Rita/Gall have only dictated a "view" on what is necessary to avoid a Sixth Amendment problem.

The justices had two options in Booker's remedy; the remedial opinion chose to remedy the 6A violation by making USSG advisory. Having gone down that road, the policy concerns over advisory USSG and limited appellate review are IRRELEVANT to the Courts. Such concerns are for Congress to correct. And the authors are wrong to suggest that the Court should be faulted for failing to "explor[e] the implications" of what the Sixth Amendment requires.

In other words, it does not matter for Sixth Amendment purposes if mandatory USSG are necessary to "constrain trial-court discretion" or if "meaningful appellate review" is necessary "as a check on policy and ideological variations." Maybe such considerations would have been relevant to what remedial option SCOTUS should have taken in Booker, but, having opted for advisory Guidelines, such considerations become irrelevant.

Finally, I don't think that SCOTUS is entirely to blame for "discourag[ing] the transparency needed for appellate review and public scrutiny." SCOTUS has said that district courts should address a defendant's argument for a non-Guideline sentence. The lower appellate courts, however, have not required district courts to address the substance of a defendant's meritorias non-Guideline arguments.

Posted by: DEJ | Mar 4, 2008 3:23:33 PM

I've practiced criminal law in state court for over 30 years, with no guidleines, with advisory guidelines, and now with mandatory guidelines. I was asked at lunch last week what I though about guidelines, and I said I'd abolish them. We were just starting to get some meaningful appellate review of sentences when advisory guidelines came in and stopped the development of the common law of sentencing cold. Guidelines or not, there will always be aberrational cases and sentences. Perfect justice is unattainable, but I'd rather trust meaningful appellate review to correct the fluke decisions, than try to measure every defendant and every offense by some arbitrary numerical score.

Posted by: Greg Jones | Mar 4, 2008 3:38:31 PM

DEJ has it exactly right. Moreover, it is amazing that the Apprendi 5 get all the blame for the post-Booker mess when the mess was created by the DISSENTERS in that (and every other) case -- plus Ginsburg, inexplicably.

Posted by: | Mar 4, 2008 4:35:49 PM

"Drawing on our previous work in positive political theory, this essay argues that binding sentencing guidelines are necessary to constrain trial-court discretion and permit meaningful appellate review."

I think that the Sentencing Commission has data showing that, prior to the guidelines, the disparity in sentencing was not as bad as we've been led to believe. For some reason that has not been published.

Posted by: David in NY | Mar 4, 2008 4:44:33 PM

1. Doug, I wouldn't say Congress was "forced" to enact the Feeney Amendment because of the failure of appellate review. The amendment was pure conservative politics, aimed at the perceived leniency of judges and some prosecutors. Of course, leniency is in the eye of the beholder, but an awful lot of people thought federal sentences were, if anything, too severe pre-Feeney. Granted, appellate review wasn't very strict between Koon and Feeney, but pre-Koon many observers thought it was much too strict. So if and when appellate review returns to the federal system it may do too little, but it may also do too much - and either scenario is a problem for the thesis of this paper.
2. Discussion of appeal waivers and the King & O'Neill research is not all that's missing in the paper. There's a lot more to the literature on legally-binding versus advisory guidelines than the one article (Pfaff) that was cited. In particular, several other authors have noted that appellate review promotes transparency. These authors have also cited the advantages of using appeals to develop sentencing policy through a common law process; and although appellate review is the most common mechanism for imposing discipline and consistency on trial courts, some authors have noted that several alternate enforcement options can be found in state guidelines systems.
3. This paper builds on one author's previous work relating appeal outcomes to the judges' political affiliations, and proposes that such affiliations be a factor in assigning appeals judges to panels. If that's a good idea in the sentencing context, then why not in lots of other politically salient contexts? The slippery slope problem, not to mention the likely unwillingness of Congress to go on record as admitting that past sentencing decisions were political, suggests to me that this idea is DOA. And if it is, then maybe we should leave the current, limited sentence appeal system as is. It just might be as good as it gets, in the federal system.

Posted by: | Mar 5, 2008 12:58:09 AM

Our system of justice feels broken every step of the way - from deferred prosecution agreements with companies, to being forced to stand trial alongside others, to Thompson memorandum abuses, to the inability to testify in one's own defense (you all know this is true), to finding a true jury of one's peers for technical accounting cases. The most broken part of all are the one size fits all sentencing guidelines that force terrible decision making at sentencing. In order for my 56 year old husband, who is innocent of the charges he was convicted of, avoid a higher security prison facility, he had to MAKE A DEAL to WAIVE ALL RIGHTS TO APPEAL and accept a sentence of 9.5. years just so he could be safe. The judge threatened to sentence him under two sets of guidelines (the set that produced the 9.5 years was the less punitive), and the record for defendants winning on appeal is well known. The odds of an innocent person being able to get their story told in court are just too slim. I appreciate all the discourse on this topic about why it is the way it is, but how does a citizen who has been wronged in this way move forward and try to change it?

Posted by: k | Mar 5, 2008 6:21:55 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB