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March 6, 2017

Formalism (and floodgate/functionality fears?) prevail over functional analysis in Beckles

I was involved in preparing an amicus brief in the Beckles case decided by the Supreme Court this morning (basics here, full opinion here), and that brief argued (unsuccessfully) that the advisory federal sentencing guidelines should be subject to vagueness challenges.  The argument was, in its essence, a functional one highlighting the significant impact that guideline calculations still have on sentencing outcomes even though they are advisory.  Justice Sotomayor's separate opinion in Beckles, though concurring on narrow grounds, wholly embraced this functional argument to make the case that the guidelines should be subject to vagueness challenges.  Here are some passages from her extended decision that capture her functional perspective (with cites omitted, but key emphasis from original):

In most cases, it is the range set by the Guidelines, not the minimum or maximum term of imprisonment set by statute, that specifies the number of years a defendant will spend in prison. District courts impose a sentence within the Guidelines (or below the Guidelines based on a Government motion) over 80% of the time.  And when Guidelines ranges change — because the Guidelines themselves change, or because the court is informed of an error it made in applying them — sentences change, too. It is therefore no exaggeration to say that the Guidelines are, in a real sense, the basis for the sentence imposed by the district court....

As set out above, although the Guidelines do not bind a district court as a formal matter, as a functional matter they anchor both the district court’s discretion and the appellate review process....

Absent that Guideline, Beckles would have been sentenced to between 33 and 98 fewer months in prison. The District Court admitted as much, explaining that had the Guideline not applied, she “would not have imprisoned Beckles to 360 months” in prison. Years of Beckles’ life thus turned solely on whether the career-offender Guideline applied. There is no meaningful way in which the Guideline exerted less effect on Beckles’ sentence than did the statute setting his minimum and maximum terms of imprisonment; indeed, it was the Guidelines, not just the statute, that fixed Beckles’ sentence in every meaningful way. Nothing of substance, in other words, distinguishes the Guidelines from the kind of laws we held susceptible to vagueness challenges in Johnson; both law and Guideline alike operate to extend the time a person spends in prison. The Due Process Clause should apply equally to each.

Notably, as Justice Sotomayor highlights in various ways in her opinion, this kind of functional concern with the continued importance of advisory guideline calculations drove the majority opinions in prior recent cases like Peugh dealing with application of the Ex Post Facto clause and Molina-Martinez dealing with plain error review. But this time around, a more formalistic approach carried the day.

As my post title here suggests, I think the formalistic approach to application of the vagueness doctrine at sentencing prevail because a number of key Justices, particularly perhaps the Chief and Justice Kennedy, may have been especially concerned about what a "vagueness at sentencing" doctrine could end up looking like and how often it might arise. Notably, Justice Kennedy authored an intriguing little concurrence in Beckles that suggests he is concerned about arbitrary sentencing, but was here even more concerned about application of traditional vagueness doctrine to sentencing. Here is what Justice Kennedy had to say:

As sentencing laws and standards continue to evolve, cases may arise in which the formulation of a sentencing provision leads to a sentence, or a pattern of sentencing, challenged as so arbitrary that it implicates constitutional concerns. In that instance, a litigant might use the word vague in a general sense — that is to say, imprecise or unclear — in trying to establish that the sentencing decision was flawed. That something is vague as a general matter, however, does not necessarily mean that it is vague within the well-established legal meaning of that term. And it seems most unlikely that the definitional structure used to explain vagueness in the context of fair warning to a transgressor, or of preventing arbitrary enforcement, is, by automatic transference, applicable to the subject of sentencing where judicial discretion is involved as distinct from a statutory command. See Johnson v. United States, 576 U. S. ___ (2015).

The existing principles for defining vagueness cannot be transported uncritically to the realm of judicial discretion in sentencing. Some other explication of the constitutional limitations likely would be required.

Though I find intriguing the suggestion by Justice Kennedy that there could and sould be "some other explication of the constitutional limitations" on the realm of judicial discretion in sentencing, the ruling in Beckles may itself ensure that such an explication never gets developed in the context of the Due Process Clause.  (Whether Justice Kennedy and others might explicate such limits in non-capital sentencing as they have in capital sentencing through the Eighth Amendment might still be ripe with possibilities.)

March 6, 2017 at 11:01 AM | Permalink



"The existing principles for defining vagueness cannot be transported uncritically to the real of judicial discretion in sentencing."

As you know, I tend to see Apprendi/Blakely issues under every rock. (because there are Apprendi/Blakely under every rock!) So, what if the same phrase can be used as either an element of a crime or a sentencing factor? In the state context, an aggravating factor which increases potential punishment above the Blakely max is an element of a new crime. Alleyne. But, if there is a second offender characteristic aggravator, then the first aggravator is a part of sentencing, not part of a trial of a crime.

I believe that the same aggravator can sometimes be subject to vagueness concepts and sometimes not.


Posted by: bruce cunningham | Mar 6, 2017 11:10:11 PM

Can Beckles be boiled down to this: because there need be no process (and for a critique of that, see, M. Frankel), a vague one is OK too? And yet here's what C.J. Roberts said in Paroline:

It is true that district courts exercise substantial discretion in awarding restitution and imposing sentences in general. But they do not do so by mere instinct. Courts are instead guided by statutory standards: in the restitution context, a fair determination of the losses caused by the individual defendant under section 3664(e); in sentencing more generally, the detailed factors in section 3553(a). A contrary approach—one that asks district judges to impose restitution or other criminal punishment guided solely by their own intuitions regarding comparative fault—would undermine the requirement that every criminal defendant receive due process of law.

Paroline v. United States, 134 S.Ct. 1710, 1730, 1734 (2014) (Roberts, C.J., dissenting).

Bruce--your comment reminded me of this great article: Carissa Byrne Hessick & F. Andrew Hessick, Procedural Rights at Sentencing, 90 Notre Dame L. Rev. 187 (2014).

Posted by: A.P.D. | Mar 7, 2017 6:33:07 AM

APD, thanks, I've read it. I am a big fan of Carissa Byrne. bruce

take a look at Betterman v Montana. I think sentencing requires due process but the process which is due is diminished from that required of trials

Posted by: bruce cunningham | Mar 7, 2017 6:48:18 AM

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