Sunday, September 12, 2004

Judge John Martin and The Judges' Brief

Just like Doug Berman, I’m amazed that John Martin wrote what I’ll call the “Judges’ Brief.” Professor Berman’s Bizarro World post on Sentencing Law and policy is right on. John Martin resigned from his position as a federal district judge because of the injustices imposed by the guidelines. Those were his stated reasons, not my speculation. Now, he’s writing a brief to save the guidelines? In addition to the bizarro character of the brief, given the author, Prof. Berman is also right that the brief depicts an idealized world of sentencing, one which defies the real world experience of most people. There may be a purpose to that depiction, however.

So, why try to save the guidelines? My best guess is that Judge Martin is proposing a middle ground, essentially giving the Court an “out,” where the Court doesn’t have to say that the guidelines are constitutional or unconstitutional. Rather, Judge Martin is angling to get the Court to give Koon v. US, 518 U.S. 81 (1996) some teeth, which would in effect bring us closer to the idealized sentencing world described by Judge Martin in the brief. The brief maintains that Koon gives judges the power to depart downward, even if the guidelines don’t specifically authorize it. If Koon is given real bite, the theory goes, judges will have more latitude under the current guideline regime to depart downward, solving many of the guidelines’ flaws. That’s my theory for why Judge Martin wrote this brief. What follows are my thoughts, including more on the Koon theory, on the brief in general.

Sentence Disparities

As with all of the petitioner’s briefs, the Judges’ brief emphasizes the good work the guidelines have done to reduce disparities in sentencing. With baited breath, I read this brief waiting for the other side of the argument – that a Blakelyized guideline system couldn’t do the same. Alas, no explanation.

The Jury’s Competence

The jury is not competent to decide the many detailed and complicated issues of fact required by the guidelines. That’s the assertion of the Judges. Others have made the same claim. The brief cites the “vague” language of guidelines as a hurdle to jury sentencing. As an example, the Judges ask, what is a “vulnerable victim?” One of the factors considered under the guidelines’ is the type of victim targeted by a defendant. Judges have been deciding fro years whether a victim was a “vulnerable victim,” and adjusting sentences accordingly.

So, what is a “vulnerable victim?” If Ned Flanders were here he’d probably say something along the lines of, “As far as melon scratchers go, that’s a honeydew.” I looked up the perplexing phrase “vulnerable victim” in the guidelines. I expected to find something complicated, obscure and beyond the reach of a lay person. Under U.S.S.G. § 3A1.1 you’ll find the following definition of “vulnerable victim:”

2. For purposes of subsection (b) , "vulnerable victim" means a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct) ; and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.

Again, I’m disappointed. That doesn’t seem so hard or vague.


Which do you think is “harder?” Deciding whether the victim of mail fraud is a “vulnerable victim?” Or, deciding whether the defendant has committed mail fraud? If you’re unsure, you might want to look at the Ninth Circuit’s Model Criminal Jury Instructions on mail fraud, which you can access here. Or, how about deciding damages in a trademark case? You can look at the model instructions for that issue here.


Juries decide the mail fraud and the trademark question everyday, and those are much harder questions. Juries can also decide whether the victim was a “vulnerable victim,” the defendant was an “organizer,” or a “leader,” or the quantity of drugs (which they do most of the time, anyhow). Juries tackle much harder questions all the time, just read A Civil Action (not the movie, the book is better).

While we’re on mail fraud


Among the amici, this brief pressed the argument that the Washington system is distinct from the federal system most forcefully. Relying on lengthy passages from Judge Lynch’s decision in
Emmenegger, the brief makes some compelling arguments which relying on Blakely’s holding, not some of its seductive language (dicta?). The brief argues that the “standard sentencing range” in Washington has no analogous counterpart in the federal system. Citing Emmenegger, the brief argues, “[I]t makes sense in a substantive as well as a formal way to describe the “standard sentencing range” in Blakely as the maximum punishment for that crime. The range is closely tailored to the specific elements of a narrowly-defined crime, and the aggravating factor cited by the judge overlaps almost entirely with the very factor that distinguishes those elements from those of first-degree kidnaping, an entirely distinct crime.”

As an example, the brief cites another passage from Emmenegger which uses the wire fraud statute (18 U.S.C. § 1343) to illustrate the argument that the federal guidelines do not have a comparable “standard sentencing range.” While it is true that the federal system does not have a standard range, the federal system does have a base level offense measurement. Here’s the base level offense for mail fraud, under U.S.S.G. §2B1.1 of the guidelines:

(a) Base Offense Level:

(1) 7, if (A) the defendant was convicted of an offense referenced to this guideline; and (B) that offense of conviction has a statutory maximum term of imprisonment of 20 years or more; or

(2) 6, otherwise.

Is the base level offense the analogy to the “standard sentencing range?” Presumably, the Judges answer is “no.” They’d say that in
Washington’s case the standard and the exceptional range are different crimes, and the federal guidelines just assess the seriousness of the offense, they don’t define different crimes. That may be so, but doesn’t that beg the question of what constitutes an element or a sentencing factor? This seems to take us for a ride on Prof. Berman’s mobius strip. Is it fair to read Blakely so narrowly?

Discretion = Constitutional (?)

The Judges’ brief makes an argument in defense of the guidelines that I don’t think we’ve seen thus far. The argument is that because the guidelines contain sufficient judicial discretion, sentences imposed under the guidelines do not trigger a defendant’s Sixth Amendment rights. I’ll admit that my first reaction to this argument was, “huh?” My thinking hasn’t progressed much since my initial reading. It appears to me that this argument confuses the question. The question is not about the degree of the judge’s authority to depart, is it? I don’t see the connection between the judge’s ability to depart and the defendant’s right to have the jury decide all facts which go into his punishment. Is the brief suggesting some kind of an offset? Does the ability to depart offset judicial factfinding that leads to a higher sentence?

Bring back Koon (for the first time)

In a move that few would be brave enough to attempt, the Judges’ brief cites Justice Kennedy of all people for the proposition that the guidelines are valuable because they afford discretion to judges. Yikes. The brief also cites departure grounds post-Koon which were shorn by the Feeney Amendment. Double yikes. In a lengthy footnote (pg. 18), the Judges admit that the Feeney Amendment would short circuit a judicial revitalization of judicial discretion. In the footnote, the Judges suggest that the Feeney Amendment may be unconstitutional, but they dodge the issue by mercifully noting that the Feeney Amendment is not before the Court in Booker and Fanfan. So, what if it was before the Court and the Court upheld Feeney? That would pave the way for Congress, in one fell swoop, to undermine much of the central thrust of the Judges brief with a more expansive Feeney-type Amendment.

The Koon theory gets a little support from the “Interests of the Amici” section of the brief. Pgs. 1-2. In that section, the authors acknowledge that not all of the amici prefer the federal guidelines to other alternatives, but all agree on the need for determinate sentencing. All amici agree that a guideline system should retain “substantial judicial discretion [that] permits sentencing judges to make the factual findings that will determine how they exercise their traditional sentencing power….” Pgs. 1-2. This could be read to imply that the Judges are not looking to start over with a new guidelines system, or to turn over sentencing to jury, but would prefer to keep the current system with some modifications.

Most telling, is the passage on page 20, in which the amici cite the legislative history of the SRA and the Court’s opinion in Koon to argue that several circuits’ departure rates are too low. The Judges are clearly asking the Justices to use Koon and the SRA as means to give life to the guidelines system they envision. This theory is bolstered by the Judges’ use of the doctrine of constitutional avoidance (pg. 22).


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