Thursday, July 29, 2004

Thoughts on the NACDL/NAFD Amicus Brief

If you haven’t read this brief, you should (get it here). It raises some very good questions about the suitability of Booker and Fanfan as test cases for the guidelines. The brief makes two major points: (1) the questions as they are currently framed are inadequate to resolve the Blakely impasse; (2) US v. Bijou, is substantively and procedurally, a better vehicle than US v. Fafan.

Foe ease of reference, here are the SG’s questions, side-by-side with the questions proposed by NACDL/NAFD:

SG’s First Question

Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.

NACDL/NAFD’s First Question

Whether a district court violates the Fifth and Sixth Amendments by relying upon facts that increase the maximum sentence available under the United States Sentencing Guidelines (other than the fact of a prior conviction) when those facts were not charged in the indictment and either found by the jury on proof beyond a reasonable doubt or admitted by the defendant.

SG’s Second Question

If the answer to the first question is “yes,” the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.

NACDL/NAFD’s Second Question

If the answer to the first question is “yes,” the following question is presented: What role do the Sentencing Reform Act, the Sentencing Guidelines, and Federal Rule of Criminal Procedure 32 continue to play in federal criminal sentencing? 

I won’t summarize the brief; instead, I’ll highlight a few arguments from section one and offer some thoughts.

Point One - The brief makes an interesting point about the SG’s use of the phrase “enhanced sentence” in the first question, suggesting that the term is ambiguous and can have two meanings. The confusion emanates from whether the phrase refers to “upward” adjustments (use of a special skill, for example) or whether it refers to judicial factfinding that determines the base level offense (or allows the judge to go above the top of the guidelines range for the base offense).

Although the brief never cites US v. Harris, this section of the brief, and the reformulated first question, would appear to put Harris’s viability before the court. The proposed question may not compel the Court to confront Harris, but it certainly would allow it to discuss judicial findings of fact which trigger mandatory minimums. This likely a good thing, as distinguishing Harris now that Blakely is the law is difficult (as I crudely noted here; Prof. Barkow has her doubts about Harris, too).

I spoke with Prof. Berman about this point. I asked him if he thought the reformulated question might put Harris before the Court, he said "possibly:" The use of the term "maximum" suggests to me they are not, at least consciously, trying to argue Harris (yet).  But I did notice the more frequent mention of Apprendi, rather than Blakely, in the NACDL petition, which suggests to me they are, in a sly way, trying to suggest that the only "new" rule was Apprendi, not Blakely. (italics are from an email exchange with Prof. Berman)   

If the proposed first question does, in fact, put Harris before the Court, it could help make the Congress’s job much easier. One of Prof. Bowman’s arguments in favor of his proposal to raise the top of the guideline range to the statutory maximum was that making such a change to the guidelines would put Harris before the Court. Prof. Bowman argued that a challenge to his proposal would give the Court an opportunity to overturn or affirm Harris, which would help shape a post-Blakely II legislative response. It appears as though the first question proposed in the brief may accomplish that end without altering the guidelines.

Point Two - The government’s second question refers to a “sentence-enhancing fact.” The amicus brief argues that the question shouldn’t contain a loaded concept like “sentence- enhancing facts.”

This point is particularly salient in the drug quantity context, where prior to Blakely, the courts of appeals were split on whether drug quantity is an element or a sentencing factor under 21 USC 841(b). The brief ties this point together nicely on pages 17 and 18.

It’s unlikely that the Court will answer all of our questions, but the distinction between a sentencing factor, an element and a sentence-enhancing fact is at the center of this debate. Perhaps the latter category is a species of a “super-fact,” as described by King and Klein.

These entitlements turn, it seems to us, on whether facts identified in Blakely and Apprendi are functioning as elements, or whether, as some have argued in the past, they are hybrids, not quite elements, and not sentencing factors, but something in between - superfacts that require some procedural protections but not all.
- King and Klein, Beyond Blakely. 
Finally, and in support of my own publishing interest, the argument raised in this section of the brief may pave the way for resolving the statutory question involving drug quantity (raised on pages 17 and 18). The brief advises the court to steer clear of the statutory issue for now. This is probably good advice. The courts have shown a propensity to conflate statutory interpretation and constitutional rules (as many post-Apprendi drug quantity cases did), which is unfortunate because it has likely added to the blurring of elements and sentencing factors. Leaving the statutory question for another day will allow the Court to focus on the element/sentencing factor/super factor issue.

Please feel free to use the "comments" section to discuss this, or any other relevant issue.

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