Friday, September 24, 2004

Looking at the FAMM Brief

According to the Families Against Mandatory Minimums web site, FAMM “is a national nonprofit organization founded in 1991 to challenge inflexible and excessive penalties required by mandatory sentencing laws. FAMM promotes sentencing policies that give judges the discretion to distinguish between defendants and sentence them according to their role in the offense, seriousness of the offense and potential for rehabilitation.” FAMM’s primary mission, as the name of the organization implies, is the repeal of mandatory minimum sentences. The amicus brief filed by FAMM in Booker and Fanfan, however, does not (and cannot) challenge the legality of mandatory minimum sentences. In fact, if the respondents prevail, it is possible that Congress will respond by enacting a host of mandatory minimum sentences, FAMM’s worst nightmare. (In fact, Doug Berman has been tracking the possible genesis of the mandatory minimum backlash here, which is brewing). Although the FAMM brief offers some valuable insights, the legal arguments garnered in their brief will not dislodge mandatory minimum sentences.

The FAMM brief makes two primary arguments. First, they claim that the federal guidelines are indistinguishable from the Washington guidelines. In response to the government, FAMM attacks the argument that the USSC’s placement in the Judiciary saves the federal guidelines. FAMM asserts that the Commission’s pronouncements are legislative in character and therefore indistinguishable from the Washington guidelines. Second, the brief contends that the government’s severability analysis is flawed because it would “have [the] Court endorse a sentencing system that Congress never intended.” In its place, FAMM recommends the “use non-binding guidelines promulgated by judges channeling their actual experience and expertise into advisory sentencing standards.”

The brief also tackles a few other issues that don’t fall neatly into the first or second primary arguments in the brief. First, FAMM argues that although the government’s contention that a ruling for the respondents would undermine Mistretta “conflate[s] two distinct concepts,” at the same time, FAMM argues “15 years of experience have brought into question certain assumptions made in Mistretta.” Second, FAMM “calls out” the Judges amicus brief, exposing what FAMM considers (as do others, see DAB’s post here) to be an unjustifiably rosy depiction of departure authority under the guidelines.

Making a Play for Overturning Harris and McMillan

As I explained in the introductory paragraph to this post, FAMM’s ability to achieve its stated objective cannot be addressed by Booker and Fanfan. Although these cases cannot compel the repeal of mandatory minimum sentences, the Court’s ruling in Booker and Fanfan could undercut some precedents that are related to mandatory minimum sentences. In a footnote on page 9, FAMM addresses Harris and McMillan, stating that “FAMM believes that mandatory minimum sentences are properly subject to constitutional scrutiny, and that Harris v. United States, 536 U.S. 545 (2002), and McMillan were wrongly decided.” FAMM further indicates in the footnote that “that the constitutionality of mandatory minimum sentences is not a question presented in the cases now before the Court.”

Although it is true that judicial factfinding which triggers a mandatory minimum is not before the Court, I can’t help but think that FAMM should have briefed a few arguments against Harris and McMillan anyhow. Sure, sure, anything the Court says about Harris would be dicta, but I get the feeling that the Court may want to clear as much of the air on sentencing as possible. Both Booker and Fanfan were charged with violations of the primary federal drug statute (18 USC § 841) which is chock-full of mandatory minimums, so a discussion of Harris wouldn’t be too far off base.

An Independent Commission Placed In the Judiciary?

FAMM (as well as others) forcefully argue that the Sentencing Commission’s independence, as envisioned in the SRA, is a thing of the past. FAMM cites as evidence of the Commission’s eroded independence the 50 times Congress has directed the Commission to amend the Guidelines in specified ways; the PROTECT Act; and a host of academic commentary to the same effect. Frankly, this is powerful stuff. I’ll reserve further commentary on this point until tomorrow, however, because the NACDL brief addresses this argument in greater detail. This is an important argument in the FAMM brief, and it’s made stronger by other amici. The Commission’s lack of independence not only serves to attack the petitioner’s attempt to distinguish the two guidelines systems, it also serves to undermine other arguments in the petitioner’s brief, as discussed in the next section on Mistretta.

Mistretta Two-step

In response to the government’s claim that a ruling for the respondents would require the Court to overrule Mistretta (which surely would break Justice Scalia’s heart), FAMM distinguishes Mistretta and Blakely by pointing out that the Sixth Amendment was not raised in Mistretta. That’s true. In the next subsection, however, FAMM argues that 15 years of experience has brought into question some of the assumptions in the Mistretta opinion. One of those assumptions is that the Commission would in fact be independent, which FAMM contends is no longer the case. Additionally, the brief asserts that the declining role of the Judiciary in shaping the guidelines calls into question one of the assumptions in Mistretta, that the Commission would maintain a distinctively judicial flavor. In the end, it’s not clear whether FAMM is saying that the reasoning that went into Mistretta has been undermined, but not fatally, or whether FAMM is saying that Mistretta should fall, but not for the government’s reasons.

Since FAMM advocates revamped, non-binding guidelines as a remedy in this case, I’m guessing that they favor upholding Mistretta. Perhaps FAMM couldn’t resist pointing out the ways in which the Commission and Congress have betrayed the intent of the SRA. This is more than sour grapes, however. A common theme throughout all of the respondents’ briefs, and a great deal of commentary (especially the July 13th Senate hearing), is that the original purpose and vision of the SRA is sound but that the current system has run astray.

Severance Talk

FAMM contends that the government’s claim that the guidelines “must rise or fall as a whole” is misplaced. The primary problem with that analysis according to FAMM is that it would result in a sentencing regime never contemplated by Congress. In fact, it would result in one that looks a lot like the system Congress rejected in favor of the SRA. FAMM’s argument may confuse the proper severance question. The government framed the severance question as one where “‘[t]he inquiry into whether a statute is severable is essentially an inquiry into legislative intent.’” U.S. Br. 44 (quoting Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999)). FAMM doesn’t dispute that claim, instead FAMM argues that the government fails to meet the test. FAMM seems to be saying that the question is, did Congress intend to create a completely discretionary sentencing system? They say the answer is “no,” therefore the Court should choose non-binding guidelines (an option that Congress actually considered in the debates leading up to the passage of the SRA, as I’ll discuss tomorrow).

Interestingly, FAMM’s bottom-line position on the severance question is one that the Court can’t grant. FAMM says that the better approach is a non-binding guideline system which would be part of a new sentencing regime. FAMM acknowledges that it needs Congress for that to happen. My question is, if Congress is necessary for FAMM’s alternative, why isn’t scrapping the whole system more conducive to a new sentencing regime?

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