Thursday, July 15, 2004

Why the Bowman proposal is unconstitutional

Yesterday, I had a very pleasant email exchange with Rachel Barkow, a professor of law at NYU and one of the panelists at Tuesday's Senate hearing. (She even admitted to reading this blog, imagine that!) Although I have posted her official testimony, for which she was only given 4 minutes to explain, I'd like to highlight an important aspect of her testimony.

Based on news stories, and rumors, it appears as though the Senate is looking for a quick fix to the current sentencing "situation." Among the possible reform ideas being kicked around, some have suggested that Prof. Bowman's (available here) is in the lead. Here's the gist of the proposal from the memo - I believe that the Guidelines structure can be preserved essentially unchanged with a simple modification – amend the sentencing ranges on the Chapter 5 Sentencing Table to increase the top of each guideline range to the statutory maximum of the offense(s) of conviction.

Below, I've pasted a segment of Prof. Barkow's testimony which addresses the constitutionality of the Bowman proposal. (For ease, I've omitted footnotes, if you want to read the footnotes, this portion of Prof. Barkow's testimony appears on pages 9-11.) I think this merits further discussion.


Prof. Barkow:

Congress should flatly reject this proposal as unconstitutional. As I have expressed elsewhere, I believe that Members of Congress take seriously their oath to uphold the Constitution. In this instance, obeying the oath requires rejection of Professor Bowman’s proposal because it unconstitutionally interferes with the jury guarantee. Apprendi made clear that “it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” A range is increased either by raising its upper limit or its lower one. In both instances, “[t]he degree of criminal culpability the legislature chooses to associate with particular, factually distinct conduct has significant implications both for a defendant’s very liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment.”

That is why five Justices – a majority of the Court – stated in Harris that Apprendi’s logic applies to factors that increase a minimum sentence just as it does to factors that increase a maximum sentence. Congress cannot ignore the logic of Apprendi without defying its independent obligation to uphold the Constitution.

Moreover, it is far from clear that the same five Justices that approved of the mandatory minimum law in Harris would uphold this proposal. One of the votes upholding the defendant’s sentence in Harris was Justice Breyer’s. As noted, Justice Breyer stated that Apprendi’s logic applied, but he was not yet prepared to accept the outcome of Apprendi because he “believe[d] that extending Apprendi to mandatory minimums would have adverse practical, as well as legal consequences.” Justice Breyer was concerned that taking Apprendi to its logical conclusion would lead to the destruction of the Sentencing Guidelines. Now that Blakely makes that all but a foregone conclusion, the premise of Justice Breyer’s vote in Harris is undermined. Accordingly, it is uncertain if not unlikely that Justice Breyer would accept a modification of the Guidelines along the lines suggested by Professor Bowman.

Justice Scalia may also disapprove of the proposal. He joined the plurality opinion in Harris, but he also joined the Court’s opinion in Apprendi. The Court’s opinion in Apprendi makes clear that, if a legislature revised the its criminal code in an attempt to duck the Court’s rule, the Court would then “be required to question whether the revision was constitutional under this Court’s prior decisions” There was no evidence in Harris that Congress enacted the mandatory minimum provision with any intent to bypass the criminal jury. In contrast, there is no other reason for adopting Professor Bowman’s proposal. The Court is likely to view the two situations very differently.

The unconstitutionality of this proposal should make it a dead letter. But it is fundamentally flawed in a second respect. It also undermines the reasons for having guidelines in the first place and would have disastrous policy consequences. Under this proposal, a judicial decision to sentence a defendant below the Guidelines floor would be subject to de novo appellate review while a decision to increase a sentence above the floor would be subject either to no review or abuse of discretion review. This asymmetry has no rational basis and would lead to precisely the kind of unwarranted disparity the Guidelines were intended to eliminate.

There was a good reason behind the Sentencing Reform Act’s mandate that the maximum sentence for each range would not exceed the minimum by more than the six months or 25 percent, whichever is greater. Sentencing ranges were narrowed precisely because the existing statutory ranges were seen as too broad and creating too much disparity. This proposal would recreate the potential for unwarranted disparity. The only difference is that this proposal would also serve to increase sentences. But there is no evidence that an across-the-board increase of Guidelines sentences is justified or wise. It would be unnecessarily costly and unjust to introduce such a scheme without some showing that sentences need to be increased to effectuate the purposes of punishment.

Indeed, it goes against the entire purpose and structure of the Guidelines to engage in such asymmetric manipulation. Judge Cassell has eloquently explained the dangers of an approach that favors departures in one direction. To paraphrase his opinion, under such a scheme the government would be able to say to each defendant, “‘what’s mine is mine, what’s yours is negotiable.’” This undercuts the entire premise of the Guidelines, which, as Judge Cassell explains, “are a holistic system, calibrated to produce a fair sentence by a series of both downward and upward adjustments.” Judge Cassell cautions against “look[ing] at only one half of the equation,” as Professor Bowman’s proposal does, because it would inevitably pull criminal sentences in one direction. In this case, sentences would be pulled ever upward, and there is no reason to believe the resulting punishment would be either just or rational. Judge Cassell states that “[t]he Congress would never have adopted such a one-sided approach.” It certainly should not do so now.

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