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 Washington’s guidelines system. Nonetheless, much of the brief highlights the Herculean efforts of the Sentencing Commission. When the brief is not engaged in making a “legal” argument, it is focused on detailing the work of the Commission. Much of that detail is driven towards spotlighting the Commission’s efforts at reducing sentencing disparities. Overall, this brief makes some interesting legal arguments which attempt to distinguish the federal guidelines, but the portions of the brief that discuss the Commission’s admittedly important work, are lacking because they imply that if the Court rules against the Guidelines, their work will become obsolete. Personally, I don’t think that’s right and I’ve explained that elsewhere. This post will focus on the specifics of the Commission’s brief.

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 knowsthe 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 Washington’s Guidelines

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 June 24, 2000 (when Apprendi was decided) to June 23, 2004, that would be the end of it. In fact, defendants made “Blakely” arguments in Apprendi’s wake and lost. But now, they have Blakely. Blakely changes the focus on the statutory maximum, which the Commission’s brief is trying to bring back into vogue.

The Commission’s brief offer two major distinctions between the federal guidelines and the Washington guidelines. The first is that Washington’s guidelines are directly promulgated by the Washington legislature and the federal guidelines are not. This distinction, the Commission claims, is significant because the Washington system, in effect, creates statutory offenses. The federal system, however, does not create offenses, but just directs judicial discretion. There are reasons, however, to doubt both the premise and the impact of this argument. As discussed supra, there is good reason to doubt the premise, which is that the Commission is independent. Plus, sometimes the Congress amends the guidelines directly. What do we do there? The guidelines, although not Acts of Congress, must be tacitly approved and the guidelines do have the force of law. If a judge doesn’t follow the guidelines, they will be reversed. Finally, Blakely’s focus on the jury, not the Legislature, may be broad enough to make this distinction immaterial. (As an aside, this section of the brief makes me think that much of this Blakely mess is a delegation issue. I’m increasingly attracted to that possibility.)

The second distinction offered by the Commission is that the Washington statute extended judicial discretion by allowing it to find facts which were elements of greater offenses. By contrast, the federal system constrains discretion, it does not extend it. This is an interesting point, but one that begs the question, in my view. Both Booker and Fanfan were accused of drug crimes (21 USC 841), for which there is an escalating punishment for different drug types and quantities. To say that the guidelines constrain sentencing discretion, rather than extend it in the drug quantity context, is to presuppose the answer to this question: are the drug quantity thresholds in 21 USC 841 sentencing factors or elements? If they are sentencing factors, the Commission’s distinction makes more sense, but if they are elements, the Commission is actually making an argument for the respondent. This tricky question is, in part, what prompted the NACDL in their amicus brief to argue that the Court should take a non-drug case. Furthermore, the language in Blakely is broader than what the Commission is crediting it as. Perhaps this is their attempt to prune that language. Even if that is true, wouldn’t relevant conduct enhancements meet the test/distinction brought forth by the Commission’s brief? Isn’t that even more egregious than the Blakely case?

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 Watts case from when Scalia was on the DC Circuit.

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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