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September 10, 2009

"Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended"

The title of this post is the title of this new article on SSRN from Professor Frank Bowman. I consider everything Frank writes to be a must-read, but this 100-page magnum opus seems especially worthy of attention.  Here is the abstract:

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continued in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure.  First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system.  It failed to recognize that defining, adjudicating and punishing crimes implicates both the Sixth Amendment jury clause and the Fifth and Fourteenth Amendment due process clauses, and it has twisted the jury clause into an insoluble logical knot.  Second, the practical effect of the Court’s constitutional bungling has been to paralyze the generally beneficial structured sentencing movement, with the result that promising avenues toward improved substantive and procedural sentencing justice have been blocked.  Even the most widely-applauded consequence of the Apprendi-Booker line, the transformation of the federal guidelines into an advisory system, proves on close inspection to be a decidely mixed blessing . The Court has made the Constitution not a guide, but an obstacle, to a desirable distribution of authority among the criminal justice system’s institutional actors. The Article provides a comprehensive constitutional analysis of all the opinions in the McMillan-Apprendi-Blakely-Booker-Ice line, as well as an assessment of the practical impact of these cases on both federal and state sentencing systems.  In addition, the article uses its careful dissection of the defects in the Court’s Sixth Amendment sentencing decisions to develop an alternative constitutional analysis that combines Sixth Amendment and due process principles. Finally, the article suggests that the elevation of Judge Sonia Sotomayor to the Supreme Court may provide the occasion for the Court to rethink its sentencing cases and move toward a more intellectually coherent and practically desirable constitutional sentencing jurisprudence.

September 10, 2009 at 08:29 PM | Permalink


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SCOTUS may have have mangled it. But, why should it get all the credit? Congress and the U.S. Sentencing Guidelines Commission clearly screwed it up royally before SCOTUS was forced to come in somehow or another to deal with their mess.

This is the classic political story of one side of a political divide finding a narrow issue, in this case the right to a jury trial, to build bipartisan compromise to secure change. Political compromises are almost always ugly.

Also, why should SCOTUS fix what Congress is in a much better position to repair?

Posted by: ohwilleke | Sep 10, 2009 8:57:51 PM

There are people who are a little bit mad and there there are people who are barking insane. The author of the article is one of them. There is nothing illogical about what the court has done.

"generally beneficial structured sentencing movement"

Say what? It's hard for me to imagine in my fondest daydreams a single beneficial aspects of the structured sentencing movement. To the extent that SCOTUS has paralyzed it, good for them!

"desirable distribution of authority among the criminal justice system’s institutional actors"

Desirable to the pack of mad dogs he runs with maybe. But not desirable to anyone with the least amount of respect for a concept called justice.

Posted by: Daniel | Sep 10, 2009 9:18:07 PM

Oregon v. Ice in particular seemed badly decided and out of line with prior decisions, and the dissent exactly right on the very important issue of consecutive sentences. I've been surprised to find so little commentary on that decision in blawgs. And what about the Sixth Amendment's holy grail, jury nullification? Is the 2nd Circuit's tepid reversal of Judge Weinstein's brilliant decision in U.S. v. Polizzi going to be appealed to the U.S. Supreme Court? If so, what's the status and the prospects? Any pointers to analysis on the web of these two cases would be much appreciated. I haven't been able to find much (other than what's happened in Polizzi up to the 2nd Circuit's decision).

Posted by: John Kindley | Sep 10, 2009 10:07:27 PM

The argument about consecutive sentences seems a bit strange to me. If you accept the idea that a defendant has warning about potential sentences, then that same defendant has in fact been warned that he might be sentenced to consecutive terms at a judge's discretion.

The nullification argument is a bit harder, certainly I don't see the current SCOTUS being particularly friendly to pro-nullification advocacy. Right now, afaik, it is up to individual judges as to whether a nullification argument will be allowed, and the vast majority do not. I fear if SCOTUS were to hear a case even that would be taken away.

Posted by: Soronel Haetir | Sep 10, 2009 11:44:14 PM

The problem, Soronel, about the consecutive sentencing case is that it wasn't -- as you put it -- "at a judge's discretion" to impose a consecutive sentence. In order to do so, the judge had to first make a fact finding. If it truly were merely a judge's discretion to impose consecutive sentences without any additional finding (as it is in the federal system), then your comment is correct. However, in Oregon that is not the situation.

Posted by: DEJ | Sep 11, 2009 12:24:18 AM

A many years ago, Frank Bowman and I worked together on the Attorney General's Advisory Subcommittee on the Sentencing Guidelines, and I can say without reservation that Frank is one of the most thoughtful, fair-minded and non-ideological people I have ever had the good fortune to run across. I seldom look forward to reading a 100 page law review article, but I'll look forward to reading his.

Thank you, Doug, for alerting us to this.

Posted by: Bill Otis | Sep 11, 2009 3:13:49 AM

I continue to maintain that Mr. Bowman misperceives what Apprendi is all about. It is not about sentencing. It is about what is a crime and who convicts people of crimes.

As Justice Scalia said in Ring, "Today's judgment has nothing to do with jury sentencing." 536 US 584 at 612

bruce cunningham

Posted by: bruce cunningham | Sep 11, 2009 7:58:23 AM

Bowman may be a wonderful fellow, but anyone who describes “structured sentencing” as “generally beneficial” has missed the boat, badly.

Posted by: Marc Shepherd | Sep 11, 2009 8:59:29 AM

Daniel and Marc Shepherd have it right. My guess is that they both practice law, including in federal courtrooms. At a minimum, they demonstrate an understanding of the practice of law in federal court.

Posted by: Dean Strang | Sep 11, 2009 11:19:49 AM

I agree with much of the analysis in this article, especially the following points: 1) Blakely was driven by animosity toward the federal guidelines, combined with Scalia's love of originalism and bright-line rules; 2) that case unnecessarily interfered with much better guidelines systems in states like Washington and Minnesota; 3) to "get" the federal guidelines the Court in Blakely had to greatly extend the rationale and scope of Apprendi; and 4) the Court's continuing willingness to exempt totally discretionary sentencing regimes from any constitutional scrutiny leaves the Blakely rule an exercise in formalism that is easily evaded. As I concluded in 6 Criminology and Public Policy 403 (2007):
" ... no core concerns that led to the Apprendi ruling were present in Blakely. No evidence was provided that the Washington legislature was redefining criminal laws or using guidelines rules to remove issues from jury control or reasonable-doubt standards. Washington’s guidelines were designed to operate within the existing criminal code, and neither the elements of crimes nor statutory maxima were changed. Thus, Blakely did not restore jury control and reasonable-doubt standards that were at risk of being undermined by guidelines. Instead, Blakely extended these standards to factual issues that had never before been subject to jury trial and proof beyond a reasonable doubt. [update: the Court seemed to apply this perspective in Oregon v. Ice, noting that juries have not traditionally made findings related to consecutive sentencing.] ...
Another irony of Blakely is that it continues to recognize the exception, allowed in Apprendi, for indeterminate sentencing systems. Washington previously had an indeterminate sentencing system in which judges exercised near-total discretion within broad statutory ranges and juries had no role in sentencing. If Washington had never enacted guidelines, or had chosen to return to indeterminate sentencing, the trial court in Blakely could have imposed exactly the same sentence (or any sentence up to 10 years), for exactly the same reasons (or no reasons), without offending the constitution [citing Reitz, 105 Columbia L. Rev. 1082 (2005)]."

Posted by: Richard Frase | Sep 11, 2009 1:53:52 PM

"If Washington had never enacted guidelines, or had chosen to return to indeterminate sentencing, the trial court in Blakely could have imposed exactly the same sentence (or any sentence up to 10 years), for exactly the same reasons (or no reasons), without offending the constitution [citing Reitz, 105 Columbia L. Rev. 1082 (2005)]."

Exactly. And what is your objection to that reality?

Posted by: Daniel | Sep 11, 2009 4:13:06 PM

Oh, I think I see. "the Court's continuing willingness to exempt totally discretionary sentencing regimes from any constitutional scrutiny leaves the Blakely rule an exercise in formalism that is easily evaded."

That's not an objection at all, merely a frosty upper lip. The law does have a formalist element. The Constitution is a formal document. Even if it is many things besides that it is that too. People don't typically gather in Constitutional conventions to produce informal documents. Sneering at formalism is not an objection.

If your major concern is that it's easily evaded then you've missed the point entirely because there's nothing to evade.

Posted by: Daniel | Sep 11, 2009 4:23:00 PM

Many thanks to Bill Otis and Richard Frase for their generous comments on the substance of the piece (Richard) and its author (Bill). I will look forward to corresponding with both of you about the undoubted imperfections in my argument. I suspect the two of you will have very different views about what those are.

As for the one or two folks above who, it would appear, started frothing as soon as they read the title and abstract, let me gently suggest that perhaps you should read the article before responding to it.

Posted by: Frank Bowman | Sep 11, 2009 5:40:09 PM

When I wrote my comment above, I hadn't realized how easy it was to read articles on SSRN. (Last time I tried it, it seemed there was a significant fee.) I've since read Prof. Bowman's article from the discussion of Oregon v. Ice to the end, and was gratified to see that he found that decision as bizarre as I did. His conclusions are quite persuasive. The states' regression to largely unfettered judicial sentencing discretion as a response to Blakely seems completely contrary to the Sixth Amendment values on which Blakely was premised. Here's a radical idea that would seem to take the Sixth Amendment as seriously as it deserves: why shouldn't the jury determine not only guilt but also the specific sentence imposed (subject to reduction after judicial review for reasonableness), just as the jury determines specific damage awards in civil cases?

Posted by: John Kindley | Sep 11, 2009 7:35:18 PM

John. Why is the fact that one part of the law is contrary to another part of the law a problem? Why is the intellectual coherence that Frank advocates for a worthwhile legal value? What's the purpose of the law anyway? My problem with his work is not in it's rigor or depth, I just don't share his vision of the purpose of "law". So what if they are contradictory? So what if the law is intellectually incoherent. The purpose of the law is not to achieve either of those things. The purpose of the law is to represent the political will of the community. If the community contradicts itself, it's not the place of anyone, especially a law professor, to tell it to shape up or ship out.

Frank wants an intellectually coherent legal system. I don't. I don't think that's a value worth pursing.

Posted by: Daniel | Sep 11, 2009 11:13:47 PM

Daniel, which is it? In an earlier comment you suggested justice was the paramount concern of the law. In your last comment you suggest it is the political will of the community. If by that you mean the political will of the community as expressed by the legislature, then the political will of the community is often at variance with justice. Intellectual coherence is an obvious legal value. Justice demands a reasonable amount of predictability of consequences for actions, and that similarly situated individuals be treated similarly. Plus, SCOTUS contradicting itself is a different problem than the putative "political will of the community" contradicting itself. SCOTUS' very job is to resolve contradictions/conflicts between the circuit courts, so it is certainly also its job to resolve its own contradictions.

Posted by: John Kindley | Sep 12, 2009 2:22:04 AM

Im just a human being who himself has been subject to the guidelines and witness dozens of other in unrelated cases having to deal with the guidelines.

I wonder if the person who wrote this article has ever even read the US Sentencing Guidelines or seen it in action. I encourage you to read it and spend a month at some sentencing hearings.

What I believe most people would be outraged to discover is the following:

1. The Sentencing Guidelines are a formula that appears in every paragraph to ensure that the Maximum amount of jail time be prescribed that can possibly be assest, regardless of any other circumstances.

2. We the tax payer foot the bill, for hundreds of thousands of non-violent offenders for years of incarceration, in spite of any collateral damage caused in society and to the family structure.

3. Special circumstances that we as American's were once told would help you if mentioned in court are prohibited from even being used for a downward departure, such as, adversity to family, adversity to communty, a persons service record, even a persons attempts that may have been made to make up for damages are expressly forbidden from being taken into consideration for a downward departure.

The guidelines are a disgrace to our country, an insult to our judicial system, offer no consideration for human elements, that might as well reduce a judge to a computer. The financial and social costs of these guidelines to our entire country are extrodinary and unecessary. With the technology that we have available today, entire businesses can be made out of home confinment and alternatives to Jail for first time non-violent offenders, yet our country remains the highest number of people in jail in the world.

Go to youtube and watch the film: A Perversion of Justice

If you think that is a an isolated case then you've not spent much time in federal court lately. There are people serving 15 year sentences for first time accounting fraud. I wonder how many years it takes for someone to regret what they did? 1,2? I wonder how many years it takes for a persons wife to leave them while they are in Jail and for peoples kids to grow resentful of a system without any regard to humanity that favors retribution rather than rehabilitation.

You can study all the laws and guidelines and books that you want, but I would rather have human being able to pass judgement on me or anyone else any day rather than be judged by a book written by people that Ive never seen before in my life.

God help the person who wrote this article if they are ever subject to a federal sentencing hearing.

Read the sentencing guidelines and tell me that they are fair and not overtly punative and designed to FORCE jailing of people.

Posted by: Experience | Sep 16, 2009 2:26:48 PM

Consider my experience that the very existence of the Sentencing Guidelines changes the entire fundimental operation of our Judicial System, and causes people to avoid attempting to get a fair trial, specifically, because people who are accused of crimes are forced to contemplate potentially devistating sentences of tens of years that arise out of multiple counts being senselessly and wastefully applied and re-applied by the Guidelines. Forget about the evidence, the Guidelines are the Prosecutors best weapon. In addition, there is no Parol in the Federal System, only a maximum of 15% of time off for good behavior, that's all.

When confronted with the possibility that a conviction on any one count might bring to bare sentencing based on all counts, many people who might otherwise sucessfully defend against many charges, opt instead to enter into a plea agreement, for the sole purpose of reducing their exposure to a lengthy sentence. And even when some-one agrees to plea to a lessor crime, shamefully, rules of hearsay are abandon and the sentencing guidelines still require that sentences be calculated based on all elements of the crime, thus maximizing a potential sentence to the maximum allowed under the plea. It is as though the Guidelines were created from the depths of hell themselves.

How does this help anyone? How is this justice? If you have months worth of discovery time to contemplate the possible sentence based on the guidelines, I can tell you from experience that it is like having a hot iron placed on your feet by the Prosecutor every night forcing you to confess to something. And then you realize that you really don't have any rights and that nothing has changed from the time of the middle ages and now.

You see first hand how much hate really exists in the hearts of Prosecutors, who honestly believe that they are just doing a job that the public at large wants them to do, and in society and in people who love slogans like, "hang-em", "throw them in jail", even though they know nothing of the details of the case or the human beings being sentenced. They are all arm-chair quarterbacks, happy most of all that they can make someone else wrong, suffer in retribution as if to prove how right they themselves are, unless... they themselve become the subject of criminal charge by some accident or folly or temporary breach of integrity they they commit. Only then, does it become a miscarraige of justice. Only then would they consider lending a hand to the family of an inmate.

I've heard it from the mouths of people from all backgrounds & religions, accept from those people who have faced this system of human waste. I often wonder how many people who condon these long sentences are Christians, and I wonder how they reconcile Christs teachings of forgiveness and caring for others. I've watched so many people talk as if they were authorities on every case, with such conviction, that didn't even have enough information about the details of the case or the people involved in order to even form an objective opinion.

From my experience the Sentencing Guidelines represent a depature from humanity that degrades us all and diminishes the most of the basic principals that we are all brought up, mistakenly, to believe in. It reduces us all to brainless robots with no compassion. I believe that when one person is unfairly sentenced then we are all made unfair by accepting it.

I would rather see the some people unfairly sentenced to low terms than what we have now where the majority of people are sentenced to lenghty terms.

Im not advocating releasing people who pose a danger to others, But for non-violent, first time, offenders I whish that there was common respect for the idea that someone could make a mistake and reform themselves. People somehow have the idea that our prison and punishment system is like a luxury hotel. It's not. The US Prison system is so poorly administerd and degrades people to such a low level that it is the subject of study and ridicule by many EU countries who value human life.

People don't realize that collateral damage that occurs to so many first time offenders in the federal system is so destructive that you can foget about a "Second Chance". Many people are damaged beyond repair after just being found guilty of a federal crime. Here are some highlights, Civil Court cases that imposed in addition the Criminal case, loss of rights to vote, buy fire arms, in some cases loss of rights to food stamps and government assistance, in all cases, many job agencies will not even work with people who have any kind of criminal conviction, joblessness, degridation, having your reputation destroyed online and offline. Fines that are impossible to pay, loss of career if your a professional. This is all without jail. With jail you are removed from family, friends, support, thrust in with other criminals. You are essentially condemned, and in many cases forced on top of being Jailed you are to somehow pay fines or go back to jail. How can someone pay a fine when no-one will hire them?

Who actually pays for these long prison terms, tax payers and society.

We have serious problems that result from these ivory tower Guidelines.

I asks simple question, should everyone who commits a crime be thrown into Jail, because according to the guidelines, that's pretty much all that is provided.

Are we too proud to consider that there might be a better way and to try to explore alternatives? Do we hold human life in such low regard that we can't even try? Or are we just too lazy and consumed with making our own way to pay attention?

It seems like there are a lot of law students in these pages, I pray to God that if you ever become elements of the government system that you do more than, just what you consider to be your job, but you go a step further to help change unfair policies in any way that you can. Because today's investigators, prosecutors, law enforcement officers and probation people all seem to think that making substantive changes is someone elses responsibility. They have a voice too if they choose to use it, I wish they would.

Posted by: Experience | Sep 16, 2009 3:33:35 PM

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