Monday, October 04, 2004

The Argument, Part I

I just got off the phone with Jason. All we have discussed so far is the Petitioner's portion of the afternoon---the argument of Paul Clement, acting Solicitor General and former clerk to Justice Scalia. So what follows is a summary of Mr. Clement's argument. The Respondent's argument will be posted shortly. Then, this evening, Jason will be providing a full briefing of the day's argument, with his commentary and thoughts. I'm simply holding down the fort while he is away. And with that, let's begin...

Right at the outset, Mr. Clement set a pragmatic tone for the argument, noting that there are 1,200 sentencings that occur each week in the federal system, and that this case will affect all of them. If the Court decides this case wrongly, there will be many practical problems. After setting the tone, Mr. Clement began with a discussion of four SCOTUS cases: Witte, Dunnigan, Edwards, and Watts. Each of these cases, Mr. Clement argued, explain the relationship between the USSC, Congress, and criminal defendants, and each case approved of the current arrangement. In the Petitioner's view, a decision striking down the USSG would have to either distinguish or overrule those four recent cases, since in those cases the SCOTUS held that the USSG were sound. In response to this argument, Justice Scalia asked if there was a Sixth Amendment issue in any of the four cases. Mr. Clement responded that there was such an issue in Watts but it was not discussed further. Justice Scalia then questioned Mr. Clement regarding the purpose of the Sixth Amendment. In Justice Scalia's view (at least the view he seemed to be pressing through his questioning), the Sixth Amendment is meant to protect defendants from judges, so regardless of whether the USSG are promulgated by a quasi-judicial commission or by Congress, the protections of the Amendment would still apply. This position would side-step the entire question of what exactly the USSC is or who controls it. Justice Ginsburg, however, was not about to ignore the question, and pressed the issue of whether the USSC was actually independent. She asked if the USSG were enacted in their entirety by Congress, would Blakely then apply and strike them down? Mr. Clement agreed, if that were the case, the USSG would have to fall. Justice Ginsburg then asked if a particular provision of the USSG were enacted by Congress, or if it were enacted by the USSC at Congress's direction, would it too fall under Blakely's force? This seemed clearly to be a reference to the Feeney Amendment. In response, Mr. Clement said no. In his view, even if individual provisions were enacted by Congress, the USSG would still have an overall judicial "character" (his word) and as such even the particular provisions enacted by Congress should be upheld. Throughout this entire line of questioning, Justice Scalia maintained a sarcastic tone about the "judicial nature" of the USSC.

This issue quickly turned to a discussion of Mistretta. Mr. Clement argued that if Respondents were to prevail the Court would have to overturn Mistretta. However, in response Chief Justice Rehnquist stated that Mistretta would have been decided the other way if the premise of the case---that the USSC was not doing the work of Congress---was found not to be true. And that was the end of that line of argument.

Justice Kennedy then asked an interesting line of questions regarding differentiation between kinds of "facts." Even if Blakely were to apply to the USSG, Justice Kennedy wondered whether the jury would still need to find all "facts" necessary for a sentence. To use the Justice's example, would the jury need to find "remorse" or could that still be left to the judge, even under an application of Blakely? Mr. Clement did not seem to have a response to this question, saying only that the Respondents position was "in for a penny, in for a pound" and that there could be no differentiation between facts to which Blakely applied, and those to which it did not.

Justice Stevens wanted to know about statistics. He asked, out of all the individuals that are sentenced in the federal courts, how many present Blakely or Apprendi problems of the type posed by this case? Mr. Clement had data from 2002, which said that 65% of all sentences raise some sort of Blakely issue. However, it was unclear what sort of data that actually was, or if it was the data Justice Stevens wanted. The sort of data Justice Stevens asked about---the percentage of cases that would have Blakely problems---is not the sort of data that can be accurately and precisely measured. For example, some of that 65% probably includes cases involving drug quantity. But would all of those cases have Blakely issues? The data in Mr. Clement's possession could not answer many of Justice Steven's questions, and so the questioning moved on.

Kansas-style bifurcation was discussed briefly, with Mr. Clement claiming that such a solution would be judicial lawmaking and a violation of separation of powers. In response, Justice Kennedy stated his view that the judicial enactment of bifurcation didn't seem like too much judicial lawmaking to him.

At this point, there was a good deal of discussion of the actual text of the USSG themselves. It is possible, and has been argued, that the USSG are not inconsistent with jury factfinding. Discussion focused on the language in 18 U.S.C. 3553(b), which says "the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission . . . ." There was a dispute as to whether "the court" as written in this section could refer to the jury, or whether it necessarily meant the judge (or, and this is my own question, does it make any sense that it would mean one thing the first time it is used, but something else the second?)

Finally, Justice Breyer seemed to "throw a bone" (Jason's words) to the Petitioners by laying out four types of "facts" that would be especially difficult for a jury to find if Blakely were to be applied to the USSG: 1) cases where enhancements involve complicated applications of the guidelines (e.g., grouping); 2) cases where things happen during trial that affect the sentence (e.g., perjury); 3) provisions or enhancements that are too hard for the jury to understand; and, 4) provisions that are too difficult to explain to a jury (not quite certain how this is different, perhaps Jason can clear this up tonight). Mr. Clement agreed, and added that, for example, it would be difficult to explain "relevant conduct" to a jury. Justice Breyer went on to ask whether simply changing the word "shall" in section 3553 to "may" would cure the USSG of any potential problems. Mr. Clement seemed to think that would be a fine idea. However, Justice Breyer saw one potential problem: Under such an advisory system all sentencing decisions would be reviewed for reasonableness, as opposed to some sort of clearly erroneous standard. (I am not certain why this would be the case.) SCOTUS would then become the sentencing commission, reviewing all sentences to determine if they were "reasonable." Justice O'Connor also expressed concern that under an advisory system, there could be no meaningful appellate review.

Finally, throughout the Petitioner's argument, Judge Lynch's opinion in Emmenegger was discussed repeatedly and with much approval. This should come as no surprise, given that case's treatment in the Petitioner's brief, but it is worth noting.

Okay, that is all for now. I'll be back soon with Jason's report on the Respondent's argument. After that, the Petitioner reserved 5 minutes for rebuttal, so we are not done with Mr. Clement just yet.

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