Saturday, July 03, 2004

Bowman, Stith, Stuntz and The Guidelines

On June 29th, Professors Stith and Stuntz penned an op-ed piece for the New York Times. They suggested that prosecutors were “already at work drafting plea bargains to try to bypass the court's ruling, but no one knows how these bargains will be received.”

United States v. Medas, 2004 U.S. Dist. LEXIS 12135, a case in the Eastern District of New York, offers some early insights into how prosecutors are adjusting to Blakely. In Medas, the prosecutor asked the judge to submit to the jury a 20 page Supplemental Verdict Sheet. The Special Verdict Sheet asked the jury to deliberate, beyond a reasonable doubt, on a long list of what would have been typical enhancements decided by the judge prior to Blakely. The judge refused on the grounds that the prosecutor’s request would violate the defendant’s Sixth Amendment rights because Medas did not have an opportunity during the trial to respond to the enhancements.

As one possible course of action, Stith and Stuntz suggest that Congress transform the guidelines into recommendations. “Congress has the power to untie these legal knots while also restoring a system of checks and balances in federal criminal sentencing. It should amend the Sentencing Reform Act of 1984 (which established the sentencing commission and made its rules binding on judges) to change the commission's many rules into recommendations. Federal district judges would have the legal discretion to fix sentences, within the range now fixed by statutes — the statutes that were largely superseded by the guidelines.”

But is that really necessary? Professor Bowman’s recommendation (available here) to raise the upper limit of the Guidelines, by way of comparison, would preserve the Guidelines pretty much the way we knew them to operate before Blakely. It would not be necessary to convert the Guidelines into “recommendations” because, as Prof. Bowman points out, Harris was undisturbed by Blakely. Harris allows a judge to make a post-conviction factual finding that would raise the minimum sentence, so long as that minimum was itself below the statutory maximum. Stith and Stuntz’s approach could lead to wildly divergent applications of the Guidelines under their new status as “recommendations.” The inconsistencies which plagued sentencing prior the 1984 Sentencing Reform Act would surely resurface.

So, is a return to indeterminate sentencing possible? According to Stith and Stuntz, “Nowhere in Blakely does the court suggest that there is anything unconstitutional in a system of advisory sentencing guidelines. Justice Scalia went out of his way to affirm the constitutionality of the pre-1984 federal system, which allowed judges to give sentences within wide statutory limits.”

We’ve already seen one judge invalidate a portion of the guidelines because of Blakely. Judge Cassell’s thoughtful opinion in US v. Croxford presents three options for sentencing the defendant. Option one is to create a sentencing jury. Option two is to apply the portions of the guidelines that don’t violate the Sixth Amendment. Option three, which he ultimately chose, was to ignore the entire Sentencing Guidelines and sentence the defendant somewhere between the statutory maximum and the minimum.

Sounds like indeterminate sentencing to me. Stith and Stuntz don’t think this is a positive development either: “[T]hat system [indeterminate sentencing] gave judges too much discretion. How much prison time a defendant got often depended on which judge heard his case — not a healthy state of affairs, and not a world anyone should want to return to.”

I wonder what Judge Frankel would have said about all of this.

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