Friday, September 24, 2004

Looking at the FAMM Brief

According to the Families Against Mandatory Minimums web site, FAMM “is a national nonprofit organization founded in 1991 to challenge inflexible and excessive penalties required by mandatory sentencing laws. FAMM promotes sentencing policies that give judges the discretion to distinguish between defendants and sentence them according to their role in the offense, seriousness of the offense and potential for rehabilitation.” FAMM’s primary mission, as the name of the organization implies, is the repeal of mandatory minimum sentences. The amicus brief filed by FAMM in Booker and Fanfan, however, does not (and cannot) challenge the legality of mandatory minimum sentences. In fact, if the respondents prevail, it is possible that Congress will respond by enacting a host of mandatory minimum sentences, FAMM’s worst nightmare. (In fact, Doug Berman has been tracking the possible genesis of the mandatory minimum backlash here, which is brewing). Although the FAMM brief offers some valuable insights, the legal arguments garnered in their brief will not dislodge mandatory minimum sentences.

The FAMM brief makes two primary arguments. First, they claim that the federal guidelines are indistinguishable from the Washington guidelines. In response to the government, FAMM attacks the argument that the USSC’s placement in the Judiciary saves the federal guidelines. FAMM asserts that the Commission’s pronouncements are legislative in character and therefore indistinguishable from the Washington guidelines. Second, the brief contends that the government’s severability analysis is flawed because it would “have [the] Court endorse a sentencing system that Congress never intended.” In its place, FAMM recommends the “use non-binding guidelines promulgated by judges channeling their actual experience and expertise into advisory sentencing standards.”

The brief also tackles a few other issues that don’t fall neatly into the first or second primary arguments in the brief. First, FAMM argues that although the government’s contention that a ruling for the respondents would undermine Mistretta “conflate[s] two distinct concepts,” at the same time, FAMM argues “15 years of experience have brought into question certain assumptions made in Mistretta.” Second, FAMM “calls out” the Judges amicus brief, exposing what FAMM considers (as do others, see DAB’s post here) to be an unjustifiably rosy depiction of departure authority under the guidelines.

Making a Play for Overturning Harris and McMillan

As I explained in the introductory paragraph to this post, FAMM’s ability to achieve its stated objective cannot be addressed by Booker and Fanfan. Although these cases cannot compel the repeal of mandatory minimum sentences, the Court’s ruling in Booker and Fanfan could undercut some precedents that are related to mandatory minimum sentences. In a footnote on page 9, FAMM addresses Harris and McMillan, stating that “FAMM believes that mandatory minimum sentences are properly subject to constitutional scrutiny, and that Harris v. United States, 536 U.S. 545 (2002), and McMillan were wrongly decided.” FAMM further indicates in the footnote that “that the constitutionality of mandatory minimum sentences is not a question presented in the cases now before the Court.”

Although it is true that judicial factfinding which triggers a mandatory minimum is not before the Court, I can’t help but think that FAMM should have briefed a few arguments against Harris and McMillan anyhow. Sure, sure, anything the Court says about Harris would be dicta, but I get the feeling that the Court may want to clear as much of the air on sentencing as possible. Both Booker and Fanfan were charged with violations of the primary federal drug statute (18 USC § 841) which is chock-full of mandatory minimums, so a discussion of Harris wouldn’t be too far off base.

An Independent Commission Placed In the Judiciary?

FAMM (as well as others) forcefully argue that the Sentencing Commission’s independence, as envisioned in the SRA, is a thing of the past. FAMM cites as evidence of the Commission’s eroded independence the 50 times Congress has directed the Commission to amend the Guidelines in specified ways; the PROTECT Act; and a host of academic commentary to the same effect. Frankly, this is powerful stuff. I’ll reserve further commentary on this point until tomorrow, however, because the NACDL brief addresses this argument in greater detail. This is an important argument in the FAMM brief, and it’s made stronger by other amici. The Commission’s lack of independence not only serves to attack the petitioner’s attempt to distinguish the two guidelines systems, it also serves to undermine other arguments in the petitioner’s brief, as discussed in the next section on Mistretta.

Mistretta Two-step

In response to the government’s claim that a ruling for the respondents would require the Court to overrule Mistretta (which surely would break Justice Scalia’s heart), FAMM distinguishes Mistretta and Blakely by pointing out that the Sixth Amendment was not raised in Mistretta. That’s true. In the next subsection, however, FAMM argues that 15 years of experience has brought into question some of the assumptions in the Mistretta opinion. One of those assumptions is that the Commission would in fact be independent, which FAMM contends is no longer the case. Additionally, the brief asserts that the declining role of the Judiciary in shaping the guidelines calls into question one of the assumptions in Mistretta, that the Commission would maintain a distinctively judicial flavor. In the end, it’s not clear whether FAMM is saying that the reasoning that went into Mistretta has been undermined, but not fatally, or whether FAMM is saying that Mistretta should fall, but not for the government’s reasons.

Since FAMM advocates revamped, non-binding guidelines as a remedy in this case, I’m guessing that they favor upholding Mistretta. Perhaps FAMM couldn’t resist pointing out the ways in which the Commission and Congress have betrayed the intent of the SRA. This is more than sour grapes, however. A common theme throughout all of the respondents’ briefs, and a great deal of commentary (especially the July 13th Senate hearing), is that the original purpose and vision of the SRA is sound but that the current system has run astray.

Severance Talk

FAMM contends that the government’s claim that the guidelines “must rise or fall as a whole” is misplaced. The primary problem with that analysis according to FAMM is that it would result in a sentencing regime never contemplated by Congress. In fact, it would result in one that looks a lot like the system Congress rejected in favor of the SRA. FAMM’s argument may confuse the proper severance question. The government framed the severance question as one where “‘[t]he inquiry into whether a statute is severable is essentially an inquiry into legislative intent.’” U.S. Br. 44 (quoting Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999)). FAMM doesn’t dispute that claim, instead FAMM argues that the government fails to meet the test. FAMM seems to be saying that the question is, did Congress intend to create a completely discretionary sentencing system? They say the answer is “no,” therefore the Court should choose non-binding guidelines (an option that Congress actually considered in the debates leading up to the passage of the SRA, as I’ll discuss tomorrow).

Interestingly, FAMM’s bottom-line position on the severance question is one that the Court can’t grant. FAMM says that the better approach is a non-binding guideline system which would be part of a new sentencing regime. FAMM acknowledges that it needs Congress for that to happen. My question is, if Congress is necessary for FAMM’s alternative, why isn’t scrapping the whole system more conducive to a new sentencing regime?

Thursday, September 23, 2004

Waiting Game

The Ninth and Seventh Circuits has recently issued opinions where the court has deferred a Blakely issue until the Court rules on Booker and Fanfan.

The Ninth Circuit stated that "we believe it would be imprudent to decide this issue [the Blakely appeal] now." US v. Sompong Khamsomphou, 2004 U.S. App. LEXIS 18959 (Nos. 03-30341 and 03-30342 ) (9th Cir., Sept. 7, 2004) (unpublished).

The Seventh Circuit in US v. Malik, also deferred a Blakely appeal. Judge Easterbook writes:

Little could be gained by resentencing Malik immediately, while legal uncertainty prevails and there is a substantial risk that whatever approach the district court adopts would be disapproved within a few months by the Supreme Court. The district court should defer resentencing Malik until after the Supreme Court has decided Booker and then proceed as appropriate in light of that decision. VACATED AND REMANDED.

Morning News

Marc Mauer, the assistant director of The Sentencing Project in Washington and the author of Race to Incarcerate, published an article entitled, "Outside View: Racing to incarcerate." The article discusses Blakely in the context of prison and sentencing reform. The article focuses on mandatory minimums towards the end.

"Blakely challenges can’t be waived," is the title of a Wisconsin Law Journal article. That's the rule in the 7th Circuit, at least. The article states, "The Supreme Court decision in Blakely v. Washington represented such a sea change in sentencing law that no defendant can be deemed to have waived a challenge to his sentence on Blakely grounds, the Seventh Circuit held on Sept. 14." The case discussed in the article is US v. Bette J. Pree, No. 03-1516.

From Arizona, a state grappling with some Blakely issues, there is a story entitled, "Impact of sentencing ruling seen in shooting case." Here's what is going on in Arizona, according to the article:

The state Court of Appeals on Tuesday issued an opinion explaining an earlier order that said Maricopa County prosecutors couldn't back out of a plea agreement with a woman in a shooting case. She wouldn't waive her right to jury findings otherwise needed before a judge could impose an aggravated sentence for a shooting.

However, the Court of Appeals three-judge panel also said the trial court can impanel a jury to consider whether facts existed that would allow the judge to impose an aggravated sentence.

Former Louisiana Gov. Edwin Edwards and his son Stephen, both convicted for racketeering and fraud involving the awarding of riverboat casino licenses, failed to persuade US District Judge Ralph Tyson that their sentences should be invalidated by Blakely. You can read more about the case here.

Wednesday, September 22, 2004

A Simple Plan

Fans of the movie “A Simple Plan” will note the irony of this post once you see what my simple plan is for the next few weeks. Hopefully, I’ll have better luck than the characters in the movie with my scheme.

The next two weeks will be busy ones for all those following Booker and Fanfan. Not only were an avalanche of briefs filed in the last 24 hours, but the oral argument is just around the corner on October 4th. In order to properly prepare for the oral argument, I’ve created a briefing schedule of sorts, which will offer my thoughts on the respondent’s briefs.

Each day, starting on Saturday the 25th, I will post my thoughts on a specific brief. If you’ve been reading this blog somewhat faithfully (and I thank you for that), you know that I did something similar for the petitioner’s amicus briefs. I didn’t discuss the government’s main brief in any of those posts by design. On October 1st, I will discuss the government’s main brief and on Oct. 2, I will discuss the two respondent’s briefs. On the 3rd, the day before the argument, I hope to put together some final comments and ideas, a kind of pre-game show, if you will.

As for the oral argument itself, I have been fortunate enough to secure a ticket to the argument, which means I won’t have to brave the public admission line. Although I won’t have direct access to a computer, one of my fellow law students at Columbia has agreed to take my phone call transcribe my thoughts on the argument on the blog.

A Simple Plan:

Sept 25th - Discussion of the FAMM Brief
Sept 26th - Discussion of the NACDL Brief
Sept. 27th - Discussion of the WLF Brief
Sept. 28th - Discussion of the NAFD Brief
Sept. 29th - Discussion of the NYCDL Brief
Sept 30th - Discussion of the Waiver Brief
Oct. 1st - Discussion of the Petitioner’s Main Brief
Oct. 2nd - Discussion of the Respondent’s Briefs
Oct. 3rd - Overview of All Briefs; Comments for Oral Argument
Oct. 4th - Commentary on Oral Argument

Noteworthy News

There have been several interesting news stories the last few days on sentencing, Blakely and the Supreme Court. If you missed them, this post offers a brief round-up of several stories.

Before I get to the news stories, I should mention that the biggest news of the last few days was the filing of the respondent’s briefs. The respondent’s briefs and the amici can be accessed here, courtesy of Sentencing Law and Policy. has published a few stories which focus on the Supreme Court, but not on Blakely (how dare they!). Tony Mauro’s piece is entitled, "Supreme Tipping PointSome liberals and conservatives say a new high court appointment could alter law in several areas. Will it?” The article makes the point that gridlock in the Senate and the Court’s general moderation in the last several years means that the next appointment won’t result in too many changes. Sure. Tell that to James Comey and Paul Clement. The article discusses a number of areas which may be affected by a new Justice. Among the areas of law discussed (affirmative action, abortion, gay rights federalism, school vouchers, capital punishment) you won’t find a Blakely discussion, presumably because Blakely will be resolved by the time there is a vacancy on the Court.

Another article entitled, "Scalia Bemoans Supreme Court's Increasingly Political Role,” has to have some people asking, what? The article reports that, “Justice Antonin Scalia on Monday bemoaned the Supreme Court's willingness to decide political questions such as the death penalty and abortion and predicted as a result a tough confirmation fight for the next nominee.” Apparently, Justice Scalia did not bemoan his opinion in Blakely, the comments of Senator Sessions on July 13th (“What was Justice Sclaia thinking when he wrote this opinion?”) notwithstanding.

The Vera Institute has a report out entitled “Aggravated Sentencing: Blakely v. Washington – Legal Considerations for State Sentencing Systems.” Those following Blakely in the states will want to read this report.

The Wall Street Journal published two excellent articles on sentencing and Blakely. On Sept. 20th, Gary Fields wrote and article entitled, “Federal Sentencing Changes Could Strain Probation System.” On the same day, Gary Fields and Laurie Cohen wrote, "Reasonable Doubts: How Unproven Allegations Can Lengthen Time in Prison; Stories of Five Convicts Show That Charges in Dispute Often Add to Sentences; Supreme Court Takes Up Rules.” Both articles are “must reads.”

Maine appears to be handling some of its lingering Blakely questions. Although Maine altered its sentencing guidelines a few years ago, the pre-reform guidelines may suffer from Blakely defects. The Supreme Court of Maine may offer some guidance soon, according to the Kennebunkport Journal.

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