Wednesday, July 07, 2004

DOJ - If you can't apply the Guidelines, just give them "due regard"

The final portion of the Government’s Sample Brief walks a fine line between following the Guidelines and giving them their “due regard.” The Government asserts that even if the judge does not strictly follow the Guidelines the judge can still “consider” the Guideline range that would have applied had it not been for Blakely. This is suspect.

The Government argues that indeterminate sentencing is acceptable under Blakely. Fair enough. But kinda using the Guidelines to say, “guide” but not direct the judge’s sentencing decision comes awfully close to crossing the line (if it doesn’t).

Depending on what giving “due regard” means, consider this passage from Blakely which comes right after the Court says that indeterminate sentencing is constitutional:

Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence—and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury.

I think the DOJ may have gotten this correct, but doesn't articulate it as well as it should.

Most judges agree that the federal criminal code should have standard--if not uniform--application across the country. A crime shouldn't earn someone more or less imprisonment just because it's committed in Memphis, TN, instead of San Francisco, CA.

So...the judge will want to sentence a defendant to a term of imprisonment that is similar to those that other defendants have been sentenced to. Researching sentences imposed is a tedious task. However, the judge knows that for the last two decades, all defendants have been sentenced to a range determined by the Guidelines. Thus, the USSG provide a starting point--but not the be-all-and-end-all--of the Court's exercise of its discretion. A judge could easily find that a particular defendant is more or less culpable than other defendants that committed similar crimes and depart accordingly (judges used to say that such cases were "outside the heartland"). In this way, the judge is free to impose whatever sentence he chooses within the statutory limits, but gets to look to something besides his own gut instinct in doing so.
Actually, this strikes me as quite sensible as a reading of Blakely. If the Guidelines are non-binding and actually guidelines rather than having the force of statute then it cannot be said that the sentence "required" judicial fact finding.

Presumably, this runs the risk of allowing too much unfettered discretion, and it leaves open the very real question what kind of standard of review a trial/sentencing judge's decision could be reviewed under by a higher court. Abuse of discretion, presumably, but more of an "eyeball it" test than the pre-Blakely application of the Guidelines...

How do you see Blakely as foreclosing even a non-binding use of the guidelines under it's 6th Amendment analysis?
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