Thursday, September 09, 2004
Thoughts on the Sentencing Commission's Brief
The Sentencing Commission’s brief is far more “legal” than the Senator’s brief. The Commission’s brief makes a valiant effort to distinguish the federal guidelines from
The Role of the Commission
Not surprisingly, the Commission’s brief puffs up the role of the Commission. In particular, the brief goes into great detail to describe the mounds of data, analysis and care that goes into the Commission’s work. The brief then explains how this work has been used to fine-tune the guidelines and reduce disparities in sentencing. This is a common theme in the government’s briefs: the guidelines are good because they reduce sentencing disparities. Fair enough. But would a Blakelyized guidelines regime not be able to accomplish the same goals? The Commission implies that it would not, but they fail to make that clear in their brief. Like then Senator’s brief, the implication is that if the Court rules against the government, we will be stuck with indeterminate sentencing.
The Commission’s brief describes the Commission as an “independent commission,” quoting the statutory language. The Commission’s placement in the Judiciary, the brief claims, bolsters the Commission’s independence and supports the claim that the guidelines simply channel judicial discretion. Since judicial sentencing discretion was virtually unlimited prior to the guidelines, an independent commission placed within the judiciary can effectively preserve, but guide, judicial sentencing discretion.
There are several problems with this characterization of the Commission, however. The Commission’s “independence” has eroded over time. As others have pointed out, the Commission is “independent” in name, but not in practice. Legislation such as the PROTECT Act undermines the independence argument, especially when the Congress ensures that judges will not comprise a majority of the commissioners, as it did with the Feeney Amendment. Even if the Commission is independent, in whatever sense of the word you wish to use, the brief concedes that Congress directed the Commission to consider certain factors, and not others, when crafting the guidelines. The Feeney Amendment continued that practice. A clear difference between pre-guideline judicial sentencing discretion and post-guideline discretion is that Congress, acting through the Commission by defining their mandate, has trimmed and channeled judicial discretion.
Just how independent is the Sentencing Commission when compared to Article III judges? Judges have life tenure, the commissioners do not. Congress can change the composition of the Commission to reduce the judiciary’s influence in its own commission, which Congress has done. Congress must at least tacitly approve amendments to the guidelines (180 day period). Amendments to the guidelines cannot come directly from the Commission. Congress can curtail sentencing discretion at any time, as it has in the past. In the end, this doesn’t sound very “independent,” and that’s leaving aside what everyone knows – the Commission kowtows to Congress.
While the portions of the brief that discuss the Commission’s role are significant, I can’t see a Justice changing their vote based on the Commission’s prior accomplishments. I also think that most of the Justices will look at the Commission’s legal status as independent with a jaundiced eye when compared to the reality.
Distinguishing the Federal Guidelines and
The brief goes to great lengths (3 pages, or so) to make the argument that the guidelines cannot and do not trump Acts of Congress. Because the guidelines all live within the statutory maximum and minimum, the Commission argues that the guidelines are constitutional. From
The Commission’s brief offer two major distinctions between the federal guidelines and the
The second distinction offered by the Commission is that the
Finally, the Commission’s brief points out that several of the Court’s recent precedents would have to be overruled if they invalidated the guidelines. Rather than defend the individual decisions, however, the brief takes a “you don’t really want to do this, do you?” tone when discussing the cases. There’s even a superfluous, but certainly purposeful, Scalia parenthetical in the cite to the
A great deal of the dispute in Booker and Fanfan can be traced to a decision which was made over twenty years ago. In the early days, the Commission was forced with a choice. Describe conduct in the guidelines, or track statutory language. Most of the states had implemented the latter. The Commission went with the former. Due to that choice, you are reading this blog.
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