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November 28, 2016

Many SCOTUS Justices seems disinclined to find vagueness problems with sentencing guidelines given backdrop of unguided sentencing discretion

I have only just gotten started reading the transcript of the oral argument in Beckles v. United States (which is available here), and the first set of big questions suggests some Justices are not drawn to a basic sentencing vagueness claim.  Consider these passages from early in the transcript, which I have tweaked stylistically for improved exposition:

JUSTICE ALITO: Let me ask you a more fundamental question. And I don't want to unduly shock the attorneys who are here from the Sentencing Commission, but imagine there were no sentencing guidelines.  So you have a criminal provision that says that a person who's convicted of this offense may be imprisoned for not more than 20 years.  That's all it says.  Now, is that unconstitutionally vague?

MS. BERGMANN: No, Your Honor.

JUSTICE ALITO: Well, that seems to be a lot vaguer than what we have here. So how do you -- how do you reconcile those two propositions?

MS. BERGMANN: Well, Your Honor, we submit that arbitrary determinant sentencing such as with a vague guideline is not the same as an indeterminate sentencing scheme such as the Court described.  Our position is that the use of a vague guideline, in fact, is worse than indeterminate sentencing because it systematically injects arbitrariness into the entire sentencing process.

JUSTICE BREYER: And there is more arbitrariness because of this guideline than there was before the Guidelines were passed? Is there any evidence of that? I have a lot of evidence it wasn't.

MS. BERGMANN: Well, I think, Your Honor, it's especially so here because --

JUSTICE BREYER:  Especially so.  Is it so at all? There was a system before the Guidelines exactly as Justice Alito said.  Moreover, that system is existing today side by side with the Guidelines in any case in which the judge decides not to use the Guidelines.  So I don't get it. I really don't. And you can be brief here, because it's really the government that has to answer this question for me.  I don't understand where they're coming from on this, and you don't have to answer more than briefly, but I do have exactly the same question that Justice Alito had....

CHIEF JUSTICE ROBERTS: Well, if the indeterminate sentencing is all right, it would seem to me that even the vaguest guideline would be an improvement and so difficult to argue that it's too vague to be applied....

JUSTICE KENNEDY: Well, but your argument applies to State systems as well, and you're telling us that the more specific a legislature or an agency tries to make guidance for the judge, the more chance there is for vagueness....  Your argument is sweeping.  And you're saying the more specific guidance you give, the more dangers there is of unconstitutionality.  That's very difficult to accept.

These statements notwithstanding, the extraordinary presentation by Deputy Solicitor General Michael Dreeben (who has long been my all-time favorite SCOTUS advocate) may have helped move at least some of the Justices to better appreciate how the career offender guidelines could be deemed unconstitutionally vague in the wake of the Johnson ACCA ruling back in summer 2015.

November 28, 2016 at 02:08 PM | Permalink


The justices seem to be confused on the difference between the concepts expressed in the words indeterminate and arbitrary. Justice Roberts comment in this regard is especially puzzling. As I see it the difference between indeterminate and arbitrary punishments lies in who is making the decision. With an indeterminate sentencing regime as outlined in Alto's question while there is a lot of leeway Congress is still the ultimate judge. With a vagueness claim the argument is that Congress hasn't spoken clearly at all and that this allows a judge to substitute his or her judgment for Congress. So the question doesn't turn on whether there is more less arbitrariness in the system, it turns on the nature of the decision maker.

Posted by: Daniel | Nov 28, 2016 2:51:18 PM

The court appointed amicus eviscerated Dreeben's arguments.

Posted by: John | Nov 28, 2016 3:29:54 PM

Daniel makes an excellent point. Judicial discretion is built in to our constitutional structure, so ipso facto, a legislature can say "up to 20 years." And vagueness really isn't the issue there---there's nothing vague about it--commit the crime and the judge can sentence you to anything up to 20 years.

With respect to guidelines--they are designed to have some bite (judges can depart, so the bite isn't as bitey as it could be). Since judges are supposed to listen to those guidelines--they have to have some standards, no?

What I think Alito and Kennedy are getting at is that the whole vagueness jurisprudence doesn't really fit with the sentencing guidelines issue--where the question is the definition of a crime, then people have a substantive right to be informed of what conduct will get them into trouble. That interest seems attenuated big time in the context of semi-guided sentencing--and to what extent is there a substantive right? Apprendi and its progeny seem to have answered that question?

Restated, what level of detail is constitutionally required of Apprendi-compliant sentencing guidelines? I think the answer is: "not much."

Posted by: federalist | Nov 28, 2016 7:03:04 PM

Astute points here, though I think it important also to keep in mind that federal sentencing guidelines directly and indirectly impact the work of so many criminal justice actors other than the sentencing judge. And that reality can make vague guidelines more of a due process problem than no guidelines at all (and recall vagueness doctrine comes from due process concerns).

Critically, prosecutors and defense attorneys look to the guidelines to assess the ballpark punishment when thinking about whether/how to offer or structure a plea. And probation officers use the guidelines to put together sentencing recommendations in a PSR. And then prosecutors and defense attorneys again use the guidelines to structure their sentencing arguments to the sentencing judge. And appellate judges use the guidelines as a benchmark for reasonableness review. Without any guidelines, all these actors will make their best "guess" as to the best sentence between whatever max/min set out by the legislature. But with vague guidelines, these actors all have their sentencing work hinging on something hard to decipher.

A hypo based in a plausible vague guideline can amplify this point. Suppose the Trump Admin gets in place a new sentencing guideline that says "a defendant should get an additional 10 years imprisonment for using a gun in conjunction with a crime whenever there is a basis to believe the gun was acquired illegally and serious gun crimes have recently increased significantly in the region of the crime." With such a gun-enhancement guideline in place, prosecutors and defense attorneys would in every case of a bank robbery or drug deal need to not only assess whether a gun was involved but also if there was "a basis to believe the gun was acquired illegally and serious gun crimes have recently increased significantly in the region of the crime." This vague standard, with 10 years imprisonment at stake, would lead to all sorts of litigation over what it means to acquire a gun illegally (e.g., stolen? bought from the black market? borrowed without permission?) AND over whether/when serious gun crimes have recently increased significantly in the region (e.g., is a drug deal/robbery with a gun a serious gun crime? black market sales? and how recent and how significant does the crime increase need to be).

Of course, without guidelines, the parties and the judges will consciously and/or unconsciously be thinking about weapon use in a crime and local crime realities. And the parties and the judges know that these sentencing factors can be discussed or stressed or ignored as part of a general discretionary sentencing process. But due process would seem more offended if these concerns are not just one of lots of sentencing considerations, but instead is subject to a severe (though vague) guideline urging the parties and the judges to add 10 years imprisonment based on the application of a vague standard certain to be interpreted in disparate ways by disparate parties.

Posted by: Doug B. | Nov 29, 2016 6:48:17 AM

But Doug, how do your points translate into substantive rights for a convicted criminal? Saying "oh this is bad" and incanting due process (which is very malleable--remember the question "what process is due?") doesn't really get it done. Yes, the Guidelines matter--but it's hard to argue that means that they have to have, as a due process matter, the precision you seem to want---yes the word "use" is susceptible to different meanings--but so what? Your comment, to be honest, seems like a generalized whine, rather than cogent legal analysis.

Posted by: federalist | Nov 29, 2016 9:50:21 AM


Your concern for the practical realties of sentencing is duly noted but then what is your substantive response to Breyer's point? As I take it Breyer's point about randomness in the system is that it is ok if the guidelines are a little bit vague because as a real matter there is whole lot less arbitrariness in the system now than there was before. What does it matter if prosecutors and defense attorney's grope around in ambiguity if the ultimate outcomes (the actual sentences) are within the constitutionally permissible range? What do you say to that?

Posted by: Daniel | Nov 29, 2016 11:19:12 AM


How Appealing links to a case where the defendant was give a sentence which was 3X the max guideline range and which the court found reasonable! Justice Breyer, reasonable or arbitrary? And how does one decide?!

Posted by: Daniel | Nov 29, 2016 3:41:34 PM

Daniel, do you really think that John Doe received an unconstitutional sentence? Seems to me the courts well explained why this particular asshole got so much time. In my view, he should have gotten the absolute max possible sentence. And the prosecutors should have explored creative ways to charge him with as many crimes as possible. This guy is evil scum, and he should NEVER be a free man inside the US again.

Posted by: federalist | Nov 29, 2016 4:08:37 PM


I think it is constitutionally problematic. The difficulty with Breyer's comment (and here I am answering my own question to Doug) is how does one measure randomness in a legal system? Breyer argues that the way one does that is to compare the results of a indeterminate sentencing system with the results of a advisory sentencing system and since the advisory system produces less arbitrary results in sentencing it wins. So from that perspective the question of whether a sentence is constitutionally permissible is not based upon a evaluation of an individual's acts nor his background and characteristics but rather the relationship of his sentence to all other sentences imposed for the same crime throughout the country. If that is true, then the question becomes how many other sentences around the country for the crime of ID theft have resulted in a sentence of 3X the guidelines range? If the answer to that inquiry is "none" then the sentence is unconstitutional because it introduces too much arbitrariness into the system as a whole, regardless of how it might look on an individualized basis.

So as I see it Breyer is offering the following deal: courts won't demand too much detail from the facial language of the statute on vagueness principles so long as the lower courts don't come up with crazy results the create even more arbitrariness in the system than there was before the guidelines were created. That makes a sentences which are 3X the guideline range inherently problematic. At least, I believe it would make such sentences problematic for Breyer. Whether anyone else on the court shares his view about the randomness of legal results I don't know.

Posted by: Daniel | Nov 29, 2016 5:41:09 PM


Sorry, but I believe Federalist is asking about what makes an unconstitutional sentence in an unconstrained sense (other than the statutory range). Imagine going back to that indeterminate regime in which the only guidance is "not more than 20 years", we live with the fiction that everyone knows every criminal statute and thus is warned that committing the offense runs the risk of a 20 year sentence.

I just don't see how an entirely advisory guideline system that merely informs the sentencing court has any substantive bite. Unlike the mandatory guidelines we are back to a system where the offender runs that same 20 year risk.

As I see the guidelines at this point they are more or less "Congress has endorsed these ranges as being reasonable but, hey Judge, do just about whatever you want so long it is within the statutory range."

Posted by: Soronel Haetir | Nov 30, 2016 2:29:22 AM

Daniel and Soronel et al: there is a limit, both constitutionally and practically, to saying that if the randomness/arbitrariness of sentencing with no legal guidance is okay ("not more than 20") than so too must be sentencing with poor/bad legal guidance.

The limits may be most obvious if we imagine sentence guidelines (even advisory ones) that obviously violate other constitutional provisions: e.g., it would be unconstitutional, I think, for (even advisory) sentencing guidelines to say all white men or all Latino women should get an extra three years imprisonment for any or every crime; it would similarly seem constitutionally problematic if (even advisory) sentencing guidelines called for a defendant to get an extra five years imprisonment if she hired paid counsel rather than defended herself or if he was a regular church-goer.

So the issue in Beckles, as I see it, is not whether vague sentencing guidelines are in some global sense "worse" than no sentencing guidelines. (After all, arguably a guideline that called for a fixed extra prison term for all white men would be "better" because all white men would be on notice that the system is designed to punish them harsher and they would know exactly how much harsher.) Rather, the issue in Beckles is whether vague sentencing guidelines, considered on their own merits, are constitutionally problematic as a matter of due process.

If a guideline is in fact hopelessly vague, then the guideline seems to me like a coin flip, and thus I imagine a guideline that functionally tells a judge: after you figure out the basic prison term using other guidelines/tools, now flip a coin; if it comes up heads, use your initial calculation as the benchmark, if it comes up tails, double the prison term and use that as your benchmark. In my view, such a sentencing guideline should be considered unconstitutional as a violation of due process of law --- e.g., there is a kind of formal sentencing process, but it is not "due" and not really a process of "law."

Critically, I think very, very, very few existing guidelines are functionally like coin-flips: most of the provisions in the USSG Manual can be reasonably interpreted and applied. But those provisions that are functional coin flips ought to be struck down (as should be any provision that expressly relies on race or religion et al).

Posted by: Doug B. | Nov 30, 2016 7:16:54 AM

Doug, with all due respect, you are peddling nonsense. Putting aside the straw-man quality of the race-based and other hypos, separate constitutional guarantees protect all but the coin flip. The coin flip hypo just goes to show how little the the Due Process Clause actually regulates judges' sentencing.

The functional coin-flip stuff is just ridiculous---the Constitution contemplates judicial discretion in sentencing, whether "guided" or not. It's a human process, and different humans perceive crimes and circumstances differently. Calling that a "functional coin-flip"is silly. And yes I know that you'll say, well, we have to accept the differences between people on the bench, but we cannot accept guidelines that in hard cases are 50-50 propositions---but why not? What rule of law (other than Doug doesn't like it) deriving from the Constitution requires a computerlike precision of the application of the guidelines? Different judges see things differently. If I were on the bench I would hammer alien criminals. So what?

"That makes a sentences which are 3X the guideline range inherently problematic." That doesn't answer the question, nor does it really tie the conclusion to the Constitution.

Posted by: federalist | Nov 30, 2016 8:21:12 AM


"So the issue in Beckles, as I see it, is not whether vague sentencing guidelines are in some global sense "worse" than no sentencing guidelines. "

Well sure but my point is that clearly Breyer doesn't see it the way you see it. And at the end of the day Breyer has the vote and you don't. So if a lawyer wants Breyer's vote it might be a good idea to ponder what it takes to get his vote. And that's crucially important because Breyer is, in effect from his time in the executive branch, the granddaddy of the entire sentencing regime.

I've long believed that one of the main reasons the sentencing guidelines continue to exist at all is because the other justices don't want to kill it while Breyer is still on the court. He is by far the strongest advocate. And if you can't even win over the strongest advocate for your position, you can't possibly hope to win over anyone else.

Posted by: Daniel | Nov 30, 2016 2:23:03 PM

federalist: as you surely know, there is a huge gap between "computerlike precision" and a coin flip. I am not asserting the Constitution requires "computerlike precision" sentencing. But I am asserting that the Constitution precludes coin flip sentencing. And it hardly is a defense of coin-flip sentencing to say that Judge federalist would always try to flip the coin a certain way. If a guideline is hopelessly vague --- i.e., a functional coin flip --- this is worse than no guideline at all.

Can you clarify your view, federalist: do you think the Constitution permits coin flip sentencing? I do not think it would be appropriate/permissible for a judge to flip a coin on the bench and have 5 years imprisonment to depend on outcome. Do you think this would be constitutionally sound?

Daniel: Breyer, because of his pro-guideline biases, always think the sentencing world is better with his guidelines. But he lost in Appredni/Blakely/Booker, and he should lose in Beckles. I am not predicting he will, because the late Justice Scalia was the best at demonstrating how wrong/dumb Breyer can be in this arena. Without Scalia around, I have limited confidence that enough Justices care enough to get sentencing law right.

Posted by: Doug B. | Nov 30, 2016 9:08:41 PM

Breyer isn't the only one on the Court not a big fan of that line of cases. Kennedy wasn't & don't think Alito is either. It's the most personal for Breyer, but wouldn't just put it on him either.

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