« US Sentencing Commission releases fourth quarter of FY 2011 federal sentencing data | Main | "Innocence Commissions and the Future of Post-Conviction Review" »

December 5, 2011

Blagojevich sentencing and the failings (and limits?) of the federal sentencing guidelines

Though I mentioned this point in this post with links to the latest sentencing filings in US v. Blagojevich, on the eve of the high profile sentencing of former Gov. Rod Blagojevich, I want to highlight again the profound failings of the federal sentencing guidelines in this matter.  While much has and will be said about just what might be a fair and effective sentence for Rod Blagojevich, my point in this post is to highlight the abject failure (and perhaps the inevitable failure) of the federal sentencing guidelines to really help resolve this issues.

As all readers of this blog likely know, the primary reason and goal of modern federal guideline sentencing reform was to develop a set of detailed sentencing rules that would facilitate greater certainty and consistency in federal sentencing.  This legal reform project has been controversial and contested for decades now, and the Supreme Court's landmark ruling in Booker only added to the controversial and contested nature of modern debates over federal sentencing processes and outcomes.  The focal point of much of this debate has been the soundness of the substantive sentencing rules set forth in the guidelines and the authority of both federal prosecutors and federal judges to decide whether and when sentences would be imposed outside the guideline rules.

But in the Blagojevich case, a case in which all significant facts have been (thoroughly?) developed in the course of two trials and through an extraordinarily extensive and high-profile investigation, we are presented in full relief the inability of just the guidelines themselves to effectively narrow the legally viable sentencing possibilities.  When the federal prosecutors "run the numbers" under the guidelines, they believe the law calls for a (now advisory) guideline range of 30 years to life; when defense attorneys run the same legal numbers, the come to the view that the law advises a guideline range of 41 to 51 monthsin prison. The Probation Office prepared a presentence report that has yet a different calculation between these extremes, and it is possible (perhaps probable) that the sentencing judge at tomorrow's sentencing will arrivae at yet another distinct understanding of what the applicable guideline law formally advises as a sentencing range.

All legal rules, especially in hotly contested cases like US v. Blagojevich, will have some variation in their application based on partisan perspectives. But when the sides can and do run the numbers in such extremely disparate ways (from a recommendation of just over three years to life in prison!), and when neutral adjudicators are seeing the law in still other different ways, seeking greater certainty and consistency from "sentencing law" is really shown to be just a pipe dream. And though one might assert that "better" sentencing guideline could and would produce more  certainty and consistency, I want to suggest here that there may be limits on what sentencing law can every reasonably expect to achieve in these sorts of settings.

My point here is not to assail the entire reform project of sentencing guidelines, but rather to highlight that the Blago sentencing showcases that the current federal guidelines are problematic regardless of whether they are "mandatory" or "advisory."  In this case, and perhaps in far too many others, the legal rules themselves fail to really provide real guidance (let alone true wisdom) concerning what a  fair and effective sentence might actually be.

Some recent and older related posts on the Blagojevich case:

December 5, 2011 at 05:51 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Blagojevich sentencing and the failings (and limits?) of the federal sentencing guidelines:


Professor: This post smacks of over-reaction. The calculation of the sentencing guideline range is completed by the court at sentencing after hearing from the parties. The range is determined after a series of assessments and interpretations of the facts to the applicable guidelines.

Each party will assess the case in a theory most favorable to their side. The fact that the calculations are disparate at this time only means that each side is advocating zealously for their position.

Posted by: mjs | Dec 5, 2011 6:51:28 PM

I would add to what mjs has said by noting that a single case, particularly a widely publicized, hot-button one like this, where the parties are dug in and possibly taking it personally by this point, is a poor candidate upon which to ground the thesis that the guidelines are a failure as a general matter.

In addition, it should be asked: Failure as compared to what? The pre-existing system made neither the pretense nor the effort to produce even rough consistency, and, not surprisingly, there wasn't any.

I agree that the present state of affairs is a half-baked compromise and, even worse, something of a fraud, because it sort of pretends to have sort of rules, while, in fact, luck-of-the-draw has returned as the order (or entropy) of the day. Still, some restraint on lottery sentenceing is, I suppose, better than none.

Posted by: Bill Otis | Dec 5, 2011 7:21:00 PM

I think Bill is right that both sides are dug in and taking it personally, and that is what is perhaps what is so sickening. The prosecutors' job is NOT to take the case so personally that he/she/they fail to do justice. Perhaps in this case they believe the guideline range achieves that, perhaps not. But the recognition that sides get "dug in" and take things personally screams out for a neutral arbiter to make a dispassionate decision. I know firsthand what it's like to have a prosecutor who seeks to make an example out of someone for not playing ball. The idea that a judge's decision to ignore a "dug in" prosecutor's recommendation could become proof of wayward judging is a "head you win, tails I lose" game.

Posted by: Thinkaboutit | Dec 5, 2011 10:50:53 PM

I hope Blagojevich's sentence falls towards a merciful standard. The fact a life sentence can even be considered I think is ridiculous.

Posted by: Robert | Dec 6, 2011 3:06:17 AM

I agree that the intensity of this dispute is aggravating the disparity in how the guideline law is being interpreted here. But my point is that the law itself has failed if/when there can be such extreme variations in how the law can be reasonably interpreted.

Imagine a tax equivalent in which a taxpayer making 100k reasonably claims he only owes 5k in federal taxes and the Feds claim he owes 85k applying the same law. I think we would view this law as failing to provide certainty and consistency, even if we trusted that a judge would likely split the difference and see that about 40k was owed.

Moreover, though the advocates here are zealous and "dug in," I have no reason to believe they are not doing their jobs well as should be done in every criminal case. Thus, saying this case is an outlier because of the strong positions of the parties only implies that in too many other lower profile cases, the parties may be just mailing it in.

Again, I do not mean to assert that the entire project of guideline reform is misguided. Rather, I mean to show that the oft-heard debates over discretion and disparity based on sentencing outside guideline ranges missed the arguably more critical and common problem of disparity based on differing interpretation of poorly constructed guidelines.

Posted by: Doug B. | Dec 6, 2011 8:32:13 AM


And who is to say that both sides are actually making good faith efforts at properly applying the guideline ranges?

Taking another case of political corruption, that of Pennsylvania's Fumo I would certainly make the argument that the defense there did not make any such effort. That the district court went along with that mendacity does not speak so much of the worth of the guidelines as it does of the people involved. Even if the guidelines were fully binding if the judge is willing to ignore how to properly calculate the sentencing range to begin with you will get lottery sentencing and there isn't a lot that can be done about it, short of will at Congress that is always quite lacking.

Posted by: Soronel Haetir | Dec 6, 2011 9:28:17 AM

Who do you think is acting in bad faith in the Blago case, Soronel? The prosecutors who say the guidelines recommend 360 to life or the defense attorneys who say they recommend 41 to 51 month? And without really know the true goals of the diktats that make up the guideline rules, how does one make a judgment about bad faith without reflecting a personal substantive bias about what one "really" thinks the right sentence should be.

You assert the defense in Fumo was not acting in good faith, but I suspect that conclusion is driven by your belief that a longer sentence was justified based on non-guideline factors. And how can you confidently assert that a guideline calculation recommendation was made in bad faith after it was adopted by the sentencing judge (though, of course, reversed on appeal by a third circuit panel)?

I am sure that in some of the 80K+ sentencing cases nationwide, there are some bad faith arguments made about the guidelines. But, especially when dealing with the suspect "loss" guidelines, I am disinclined to call any non-frivolous claim about how to calculate loss to be "bad faith." And, reinforcing a point above, the defense would seem to have an obligation to its client to make every non-frivolous claim for a lower guideline calculation.

Your broader point may even further support my expressed concern about the federal guidelines here: to the extent they can be so readily "manipulated" by the parties (or even by judges) to serve a particular set of substantive commitments, they no longer serve as guidelines providing any meaningful guidance. Instead, the guideline law here become merely a (cumbersome and very costly and often rusty) tool for fostering a certain kind of (formalistic) sentencing advocacy. And, critically, this "rusty tool" becomes sharper and even more worrisome if/when judges have an obligation to "follow" the guidelines rather than just treat them as advice. And that is my broader point hear that drives my support for "merely advisory" federal guidelines: if the guidelines often operate as mere legal cover for other substantive arguments about fair and effective sentences (as they seem to be doing in the Blago case), I think it is MUCH better for the justice system that they be treated only as advice rather than as mandates.

Posted by: Doug B. | Dec 6, 2011 9:54:57 AM

The Anglo-American system is hopeless in trying to assess guilt and imposecsentene based on the beyond-a-reasonable-doubt standard. After all, in the Blago trial, the government said Blago was guilty on all counts. The defense said he was innocent on all counts. And the jury convicted on some and acquitted on others. This shows that the standard is faulty.

See the error in D Berman's logic?

Posted by: Let's take this nonsense one step further | Dec 6, 2011 11:43:40 AM

Prof B,

I think you know by now that a life sentence is far closer to what I believe to be justice in such cases.

Setting that aside, and addressing only Fumo, because there we actually have two sentencing procedures to go by, I say that Buckwalter was not applying the guidelines in good faith because he did get reversed on that very point once and I don't see his remedial efforts as curing the failings of his first attempt.

I don't fault defense attorneys at all for such behavior, it's their job and I'm glad they pursue it with as much zeal as they do. However a federal judge is not supposed to be a party for either side and is supposed to be bound by every constitutional law that Congress passes. And so far the part of the law that requires that the proper guideline range be calculated before it is ignored has not been found lacking that imprimatur.

Posted by: Soronel Haetir | Dec 6, 2011 12:05:12 PM

No, Let's take this..., the jury verdict shows that the jury was, based on the FACTS presented, convinced BRD of Blago's guilt on some counts and not convinced BRD of Blago's guilt on other counts. Key differences concerns the important reality that the jury has a clear/crisp role as fact-finder with a clear standard of proof and a clear instruction (from a law-giving judge) concerning what to do based on the facts it finds. (And if the applicable criminal law is too unclear to clarify whether a person is guilty once the facts are established, that law can/should/will be deemed unconstitutional as void for vagueness.)

A better analogy to sentencing would be jury verdicts in tort cases involving PUNITIVE DAMAGES --- and I suspect that people who specialize in such cases/verdicts would complain that applicable law often fails to provide guidance to juries about how to assess how much in PUNITIVE DAMAGES to award. (Indeed, the lack of viable law in that setting has been filled (slightly) by some constitutional substantive due process jurisprudence.) Would you think the law of punitive damages was working well if, absent any distinct/critical factual disputes, the tortfeasor who has been found guilty of an intentional tort could reasonably claim that the law suggests it should pay only $1,000 in punitive damages while the tort victim can point to the same law and also reasonably argue to the jury that the law suggests he should receive $100,000,000 in punitive damages?

Perhaps there are a few key factual issues/disputes that are driving the disparate guideline calculations in Blago's case. But my sense is that the huge spread in guideline recommendations is based in disparate interpretations of the guidelines law. And when a law intended to improve certainty and consistency is subject to such disparate interpretation --- which hinge not on big factual disputes, but only mostly on different legal arguments --- then I think we can and should consider the law a failure.

One can respond by asserting that the federal guidelines are not really about improving certainty and consistency in sentencing decision-making: e.g., I suspect commentor SC would say the federal guidelines exist just to make more work/money for lawyers. And, to get back to your jury example, I trust we all would say that requiring the govt to prove criminal guilt BRD to a jury seeks to achieve a lot of values other than certainty and consistency. (Indeed, that is one reason we adopt the BRD standard: we formally want to protect the innocent more than convict the guilty.)

I think my main point is still sound: if the primary goal of the guidelines was to improve sentencing certainty and consistency, the disparate calculations offered up by the parties in the Blago case showcase that this goal is not being met BECAUSE OF THE GUIDELINES THEMSELVES (and not because they are advisory rather than mandatory).

Posted by: Doug B. | Dec 6, 2011 12:09:25 PM

i'm with doug sorry i think if ANYONE looks at the what any individual has been charged and CONVICTED of and say

of mr x was convicted of

X so gets 2 years for that
y so gets 1 year for that
b get's 3 years for that

for a total of 6 years

all this other shit and yes i said SHIT is just blowing smoke up peoples asses so they think both sides are actually doing some REAL WORK!

Posted by: rodsmith | Dec 6, 2011 12:40:27 PM


The issue is that you are treating what should be range as a single value. Yes, there is some validity to the point you make that a guideline really isn't a guideline if it can mean anything at all. But at the same time a guideline isn't a guideline if it means just one thing, either; that would make it a straitjacket. A guideline is by definition a place where reasonable people can and do disagree.

I don't share your sense that the law is a failure. I think we'd just disagree on just how much 'looseness' (for lack of a better word) that the system should tolerate. Variability isn't a bad thing; it really isn't.

Posted by: Daniel | Dec 6, 2011 12:44:07 PM

But the guidelines themselves suggest a range, Daniel, and I think it is sound that the do (though the range is sometimes too broad for my taste). But here the dispute is not a top/bottom of range varaibility -- e.g. 41 vs. 51 months. Rather the variability runs essentially the full nearly gamut of all legally available sentences. That means, functionally, that the guidelines are not really guiding at all.

Posted by: Doug B. | Dec 6, 2011 2:05:40 PM

"Rather the variability runs essentially the full nearly gamut of all legally available sentences. "

But it is not my sense that this is the typical occurrence so I find it quite the leap to say that this one case is evidence that the law itself is a failure. There will always be outliers which serve to illustrate the rule. Perhaps you have some data that suggests otherwise.

Posted by: Daniel | Dec 6, 2011 2:21:07 PM

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