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June 19, 2013

Guest post with more thoughtful perspectives on Peugh

I am very pleased to have received and to now have time to post the following "quick thoughts" of Professor Todd Haugh concerning last week's SCOTUS Puegh decision (basics here):

First, Justice Sotomayor is really establishing herself as the Court's current sentencing scholar, particularly as to Guidelines issues.   By my quick tally, since taking her seat in 2009, she has drafted or significantly contributed to seven or eight important sentencing cases, while others are at two or three.  I imagine her status as the Court's only member to have regularly sentenced defendants as a trial court judge has something to do with this -- she often seems to be the voice expressing the practicalities of sentencing (both from the defendants' and judges' standpoints), which has carried the day in Peugh and some of her other recent opinions (Pepper and Southern Union come to mind, as does the Alleyne concurrence).  Scalia's and Breyer's overall impact may prove to be greater, but Sotomayor appears to be asserting herself in this area (and willing to spar with Alito).

Second, following that thought and in line with some of the comments [to this prior Peugh post ], the Peugh opinion is about the actual practice of federal sentencing versus how the system operates in theory.  The dissent was sunk by its first argument -- that the Guidelines do not constrain district court discretion.  While in theory, based on the language and structure of 3553(a) and the Court's reasonableness review jurisprudence, that may be true (and every defense attorney argues in the hopes of making it true), the realities of in-the-trenches sentencing demonstrate that increased Guideline ranges equal increased sentences (and thus risk of increased punishment under ex post facto analysis). This fact is well-documented by the Commission's recent Booker report, it's yearly data, it's survey of judges; and a host of academic articles concerning the psychological process of judges when sentencing (i.e., anchoring and adjustment, etc. -- see footnote 1 in Judge Calabresi's concurrence in Ingram [discussed here]).  It's why DOJ advocates to members of Congress and the Commission for additional sentencing enhancements -- increased risk to defendants of higher punishments means more bargaining power for prosecutors.  Query whether the majority's argument weakens if variance rates climb both in number and, most importantly, length.

Third, while I don't think this opinion is going to have huge practical effects on federal sentencing because the Seventh Circuit was an outlier (and there is likely harmless error in many of those cases), the opinion may have a lot of rhetorical value.  Defendants basically got a win-win here -- assurance that they will be sentenced under the most favorable Guidelines per the majority and lots of juicy language to quote when they argue for a variance per the dissent.  I would expect to see Peugh cited in a lot of future federal sentencing memos.

Judges, however, may have gotten the short end of the stick because they now face even more complexity when they determine sentences (a trend that has continued since Booker).  Before Puegh, they had to calculate the Guidelines, then decide on departures, then consider a 3553(a) variance (seven factors; four purposes of punishment). Now, Peugh suggests courts should also consider how the evolution of the Guideline at issue (pre- and post-offense) weighs on the sentence.  That could mean at least two more Guideline calculations (1987 version if Doug Berman is your defense counsel and the current, harsher version of the Guidelines if you are facing a prosecutor who reads this blog), but it could mean even more (what about Guideline ranges before and after major changes by the Commission, e.g., before and after SOX or Dodd-Frank, to demonstrate that evolution?).

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The basic problem with Peugh is that it continues the Court's giving mixed signals on how much the Guidelines should count with district judges in sentencing. The Court wiggles one way in this case and wiggles differently in the next.

Now I had thought that the Court meant what it said in Booker (and Gall and Kimbrough, etc.) that "advisory" means "advisory," and thus that the Guidelines had little or no force for the BOTTOM LINE of where the sentence winds up. Sure, they're where you start, but big deal. Neil Armstrong started on earth and wound up on the moon.

So I would have voted with the dissent.

But prosecutors should hardly be downcast about the decision; indeed, if I were back in the USAO, I would be more happy than sad, even while thinking the Court got it wrong. What prosecutors will be signaling to judges from now on is that, while the Guidelines may be "advisory" in haec verba, SCOTUS seems to feel that they're "advisory-plus," so maybe, judge, you should think twice before granting this departure.

The Court's inability and/or refusal to say exactly how much force the Guidelines have is unsatisfactory. Law is rules, and wiggling here followed by wiggling there is the opposite of rules.

This decision makes me more convinced than before that we ought to scrap the present system altogether (since no one can tell what it really, truly means). We should go back to mandatory Guidelines with the government required to prove any Apprendi/Blakely aggravators BRD.

Law cannot provide complete certainty, but it should be able to do better than the additions to the guessing game that Peugh has given us.

P.S. Again, if I were back in the USAO, I would remind district judges that all the language that's being quoted to them about how they can do whatever they want comes from the DISSENT.

Posted by: Bill Otis | Jun 19, 2013 10:25:33 AM

"We should go back to mandatory Guidelines with the government required to prove any Apprendi/Blakely aggravators BRD."

And on that, Bill and I agree. There must be a blue moon.

Posted by: Anon | Jun 19, 2013 1:44:15 PM

Complexity violates due process by its hiding clear notice of consequences. I have never been able to calculate aguiline sentence correctly. Being an ordinary cuitizen I failed to receive notice.

Posted by: Supremacy Claus | Jun 19, 2013 2:00:29 PM

"First, Justice Sotomayor is really establishing herself as the Court's current sentencing scholar, particularly as to Guidelines issues."

Good grief. Well, I guess the author could have gone whole hog and called Justice Kagan a patriot. Sonia Sotomayor, a federal judge for years, couldn't figure out that Justice Ginsburg's dissent would not have affirmed the Second Circuit's decision in Ricci, and now, because she pens a few opinions on sentencing, she's a scholar? Wlll this obsequious flattery ever cease?

Justice Sotomayor wasn't even a very good appeals court judge. She's a middling talent and an example of identity politics.

Posted by: federalist | Jun 19, 2013 9:47:25 PM


That wasn't "obsequious flattery." Justice Sotomayor is assigned to draft these opinions by the senior justice in the majority, so her peers on the Court have recognized that she has some talent/interest/expertise (likely all three) in this area. I think it's fair to call her a scholar under those circumstances, regardless of your views on the outcome of the decisions.

Posted by: TJH | Jun 20, 2013 10:30:43 AM

TJH --

When a pro-defense writer (Todd Haugh) is evaluating a pro-defense (for the moment) opinion, it's not a big surprise that the opinion's author gets blown a kiss as a "scholar." It's pretty much SOP in pieces of this type. Academic writers inevitably tend to regard judges who agree with them as "scholars."

Posted by: Bill Otis | Jun 20, 2013 12:20:22 PM

Or, more likely TJH, the Justices regard this as a non-sexy area.

This, it seems to me, another example of academics falling all over themselves to show the rest of us how enthralled they are with the brilliance of liberal judges. Sotomayor isn't anywhere close to being a scholar. As I noted above, Sotomayor was a federal judge for well over 15 years when, in prepared testimony, she stated that Ginsburg's dissent would have affirmed her decision in Ricci. And then there was her ridiculous response to Senator Kohl on term limits. As a judge, she opined that murderers should get the franchise. On the bench, she has been no better. One obvious gaffe--during oral argument (Salinas v. Texas), she noted how bizarre it was that silence in the face of an accusation was probative with respect to guilt. (Note: probativeness and admissibility are two different things). That wasn't even a rookie mistake--that's just plain dumb. Perhaps one could chalk that up to a brain cramp--but it's not like she's setting the world on fire.

So yeah, flattery. I note TJH that you don't dare engage on the merits of Sotomayor's talent. Rather, you defend the pathetic sycophancy of the liberal commentariat. I'd say that the Empress has no clothes, but, of course, I'd like to keep my dinner down.

A parting thought--Sotomayor referred to herself as a "wise Latina." (No one can seriously argue that she wasn't talking about herself.) Um, Sonia, when ya gotta call yourself smart, ya probably ain't.

Posted by: federalist | Jun 20, 2013 9:50:53 PM

Elena Kagan:
bewildered, confounded, cites Heller as ultimate authority;

more coherent, but does not acknowledge philosophical basis of natural rights.

JUSTICE KAGAN: "Senator Coburn, to be honest with you, I don't have a view of what are natural rights,
independent of the Constitution
SENATOR COBURN: So you wouldn't embrace what the Declaration of Independence says, that we have
certain God-given inalienable rights that aren't given in the Constitution, that are ours, ours alone, and
that the government doesn't give those to us?

JUSTICE KAGAN: "Senator Coburn, I believe that the Constitution is an extraordinary document..."
SENATOR COBURN: Well I understand that...what do you believe? Are there inalienable rights for us?
Do you believe that?

JUSTICE KAGAN: "Senator Coburn, I think that the question of what I believe as to what people's rights
are outside the Constitution and the laws--that you should not want me to act in any way on the basis
of such a belief if I had one, or .. [interrupted]
SENATOR COBURN: "I would want you to ALWAYS act on the basis of a belief in what our Declaration of Independence says."

Posted by: Adamakis | Jun 21, 2013 9:22:50 AM

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