Wednesday, September 08, 2004

Looking at the Senator's Amicus Brief

Senators Hatch, Kennedy and Feinstein formed an unlikely coalition to file an amicus brief in Booker and Fanfan (“Senator’s Brief”). The Senator’s brief, written by Gregory G. Garre (a partner at DC’s Hogan & Hartson) is highly pragmatic, focusing on the practical consequences of undoing the guidelines instead of offering legal arguments for saving the guidelines. My impression of the brief is that the Senators are telling the Court: “Look, we put a lot of work into this guideline thing, please don’t undo it. Okay?"

As others have noted (see Doug Berman’s post on this subject here), the Senator’s brief is more of a policy paper than a nitty-gritty legal brief with lots of see also’s, cf.’s and but see’s. The brief doesn’t cite the Sixth Amendment, for example. In fact, if you look at the TOC, it doesn’t cite any portion of the constitution explicitly.

The brief starts where the Senate left off in mid-July after the Senate Judiciary Committee met to discuss Blakely, by describing the legal environment as chaotic, confused, lacking order, consistency and fairness (pgs. 1, 3). Although virtually all (if not all) of the Senators at the Blakely hearing decried the uncertain status quo, it’s somewhat peculiar that Ted Kennedy would want to sign-off on a brief that saves the guidelines. After all, Senator Kennedy isn’t exactly a fan of the Feeney Amendments or the general erosion of judicial discretion under the guidelines. He made that clear at the Blakely hearing. So, why the brief? I think it can be traced to a false, forced choice asserted in all of the briefs which argue for preserving the guidelines. (Or, is Senator Kennedy sending a subtle message to hopeful reformers? Is Kennedy hinting that if the guidelines are struck down that Congress will respond with draconian, but constitutional, mandatory minimums? Or, have I read too many John Grisham novels?)

The false, forced choice is that if the Court strikes down the guidelines, we will be forced to return to indeterminate sentencing. The Senator’s brief clearly embraces this dilemma and attempts to leverage the threat of indeterminate sentencing as a strategy for preserving the status quo ante (pre-June 24th, that status quo ante). The Senator’s brief, as do all the others, argue that severing the guidelines is incompatible with Congress’s intentions. The non-severability argument bolsters the false dilemma, because if the government loses Question 1, their position on Question 2 (severability), could cause one to rethink the answer to Question 1, just to avoid indeterminate sentencing.The basic message on this point is as follows: We put a lot of work into these guidelines. We did it because no one, and I mean no one, thinks indeterminate sentencing is a good thing. But, if you unravel all of our hard work, we’ll be forced to go back to a system that no one likes.

As I see it, this argument suffers from a major deficiency: it isn’t true. The Blakely Court explicitly stated that determinate sentencing is constitutional; it’s just a question of how we can make it work with the 6th Amendment. Jury sentencing, which the Senator’s brief says is a bad idea because it costs a lot and is unwieldy, would preserve determinate sentencing. The Senators may not want to charge juries with sentencing factors, but that’s a policy preference. Striking down the guidelines does not inexorably compel indeterminate sentencing. After all, Washington still has determinate sentencing (as do most states).

Yet, the Senators urge the Court to consider “urgent practical and policy considerations” which militate in favor of saving the guidelines. (This doesn’t sound very Hatch-ian to me, as an aside). The brief documents quite extensively, all of the hard work and sacrifice that went into the SRA. The brief cites political stalemates which forestalled prior attempts at reform (pgs. 12-13) to highlight the fragility of sentencing reform efforts. Senator Kennedy is quoted in the brief as having said in 1983 that, “Federal sentencing reform has been long overdue.” The irony of these arguments, and the Kennedy quote in particular, is that the environment for reform is as ripe as it has been in 20 years. (I recently wrote an article making this point). In fact, it’s arguably better than it was 20 years ago. The time for reform is now, but the political leaders you would think are most likely to lead that movement are arguing for the status quo ante.

I officially nominate this brief for the Bizarro World post found on Sentencing Law and Policy.

Later today, I'll offer some thoughts on the USSC brief.

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