Sunday, September 26, 2004

The NACDL's Powerful Brief

The first half of the National Association of Criminal Defense Lawyers brief, like the FAMM brief, is dedicated to showing that the guidelines are inconsistent with Blakely. The NACDL covers some similar terrain, but adds some depth to certain arguments. I’ve decided to focus on those particular arguments. What truly distinguishes the NACDL brief, however, is the second half of the brief which is dedicated to the severance question. The NACDL maintains that federal sentencing practices can be adapted to the requirements of the 6th Amendment while maintaining the guidelines’ binding effect. NACDL argues that complete severance would exacerbate sentencing disparities, and therefore favors a bifurcated sentencing procedure where juries would hear sentencing enhancements.

The Guidelines Must Fall

Like all of the respondent’s briefs, the NACDL argues that Blakely invalidates the federal guidelines. Under the heading of this general argument, the brief asserts that any distinction between the federal guidelines and the Washington guidelines which relies on the source of the guidelines is misplaced. That’s because the Sixth Amendment protects against encroachments on the right to a jury trial by any branch of government.

The Commission is Not Independent

The strongest portion of this brief, in my opinion, is the evidence that is marshaled by the authors to demonstrate that the federal guidelines are not the product of an independent commission within the Judicial branch, as envisioned by the SRA. It begins when the NACDL depicts the PROTECT Act as a broad Congressional swipe at judicial sentencing discretion. On page 8 of the brief, citing the PROTECT Act, the NACDL contends that, “Congress exercises direct control over the primary discretionary authority retained by sentencing judges under the Guidelines – namely, the power to depart from an otherwise mandatory Guidelines range.” The authors assert that the across the board reductions in departures by the PROTECT Act undermine “a cornerstone of the SRA.” This is a clever attempt by the NACDL to demonstrate how the PROTECT Act infects all guideline decisions (including reporting, for example), which in turn allows the amici to argue that the entire guidelines regime is under Congress’s thumb.

On page 12, the NACDL delves into a detailed analysis of how Congress has increasingly dictated the content of the guidelines. The amici point out that,

“Since Mistretta was argued in October 1988, Congress has enacted over sixty laws that either directly dictate the content of particular Guidelines or mandate that the Commission enact specified revisions…Congress has issued fifty-five directives that directly alter the Guidelines… On twelve additional occasions, Congress directed the Commission to enhance the sentencing ranges for certain types of conduct, leaving only the precise level of enhancement to the Commission… Eleven additional provisions, while not expressly requiring amendments, have nevertheless “requested” or “recommended” changes… Furthermore, Congress has specifically rejected the Commission’s proposals for amendments to the Guidelines that would have lowered sentences for money-laundering offenses and offenses involving crack cocaine.”

All of these points are documented in an Appendix to the brief, which is mighty long and persuasive. In the context of the sentencing disparity debate, which the government goes to great lengths to raise in their brief, the NACDL’s crack-cocaine disparity argument may carry some weight with the Court. Not only is the crack-cocaine disparity a specific example of the breakdown of the Commission’s interaction with Congress, the crack-cocaine disparity has been largely lambasted by academics and judges.

A particular effort is made in this brief to point out how little say judges have over the development of the guidelines. The amici argue that none of the Commission’s rules, or governing statutes, preserve a special role for judges’ voices in the development of guidelines. The Commission frequently responds to “congressional directives,” “addressing Commission interests,” and “resolving circuit conflicts,” according to the NACDL. “Nowhere does it cite a direct response to judicial comment or opinion as a reason for a change to the Guidelines.” Citing a statistic that may say it all, according to the NACDL, in the 650 time the guidelines have been amended since 1988, only 3 or 4 times were the guidelines amended in response to a judge’s comments that wasn’t a member of the Commission.

Mandatory Minimums

Much to my surprise, the NACDL brief discusses the role of mandatory minimum sentences for a couple of pages in their brief. I guess I’m not surprised that the NACDL chose to discuss mandatory minimums; I’m surprised that FAMM didn’t do the same thing. In any event, the NACDL contends, using Justice Breyer’s words from a 1998 speech, that mandatory minimum sentences prevent the commission “from carrying out its basic, congressionally mandated task: the development, in part through research, of a rational, coherent set of punishments.” Recognizing that these cases are not a vehicle for challenging the constitutionality of mandatory minimum sentences, the authors make a more modest point about mandatory minimums which is that their existence “further demonstrates that sentencing under the Guidelines operates pursuant to a legislative scheme, not a judicial one.”


The NACDL takes a hard line on the government’s severance position. The NACDL claims that rendering the guidelines advisory only in cases implicating Blakely is “profoundly illogical as it, in fact, relies on a selective severing of portions of the SRA that Congress could never have imagined, and it furthermore flies in the face of Congress’s determination to promulgate a binding guidelines scheme that would rationalize federal sentencing.” To support this view the NACDL cites the Senate Judiciary Committee’s rejection of an advisory guidelines system in the debates leading up to the SRA. They also cite Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 767-68 (1996) (plurality opinion) to support juries over advisory guidelines (“Congress would probably have thought that [the use of juries to determine sentencing facts] was an effective (though, perhaps, not the most effective) means of pursuing its objective.”).

The NACDL prefers a bifurcated sentencing hearing, in which prosecutors would ask juries to deliberate on relevant facts which would then be used to enhance a defendant’s sentence. They point out that it would still be the judge that determines the appropriate sentence within the guidelines range authorized by the jury’s findings of fact.

The practicalities of taking enhancement facts to the jury are briefly discussed. They states that, “In our system, juries are trusted to resolve matters of considerable complexity, such as complicated matters involving statistical evidence and/or conflicting expert testimony.” In a footnote to that statement, the NACDL uses the example of anti-trust cases, where juries are asked to deliberate on a number of complicated questions. In the criminal context, amici point out that in a number of states criminal justice systems, juries determine the actual sentence.

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