Thursday, September 30, 2004

The Waiver Brief

The Office of the Federal Public Defender of the Northern District of Texas submitted a brief on behalf of the respondents. Interestingly, the brief does not address either of the two question before the Court in Booker and Fanfan. Instead, the brief addresses the situation in which a defendant makes a simple admission of fact, and under what conditions, if any, such an admission constitutes a waiver of constitutional rights. The brief argues that simple admissions are not sufficient to waive a defendant’s constitutional rights.

Here is the brief’s conclusion which summarizes the argument quite well:

Blakely, citing Apprendi, discussing Almendarez- Torres does not support the proposition that a defendant can waive constitutional rights by simply admitting facts, which are not facts related to a prior conviction, that increase the relevant statutory maximum sentence. Any such statement is contrary to this Court’s precedent. The defendant, however, can admit facts in conjunction with a valid waiver of enumerated rights that will allow the judge to increase the relevant statutory maximum sentence. As part of this procedure, the sentencing court must fully inform the defendant of the rights being waived and the results of such a waiver. Only then will a defendant knowingly and voluntarily have waived constitutional and statutory rights.15 Cf. Boykin, 395 U.S. at 242-244; Johnson, 304 U.S. at 464.

The bottom line is that the application of Blakely to the Federal Sentencing Guidelines, when combined with admitted facts and valid waivers, will result in defendants actually receiving the guideline range that they bargained for: this would be real “truth in sentencing.”16

I’m going to defer any commentary on this topic pending the oral argument in Booker and Fanfan. Since this question isn’t before the Court, and the petitioners aren’t raising the issue, unless the Justices ask about it, I’m going to put this topic on hold.

I will point out, however, that at the end of a lengthy footnote (FN 14) the amici make an argument which bears on Blakely’s impact on plea agreements. They argue that, “In a defense attorney’s eyes, the best result of applying Blakely to the Federal Sentencing Guidelines will be reducing a probation officer’s impact in determining the offense-level and allowing the prosecuting and defense attorneys to come to an agreement as to a defendant’s 'enhancements' and relevant statutory maximum sentence. When this occurs, a defendant will truly know what offense level he or she is bargaining for and then we can all truthfully say that the defendant has knowingly and voluntarily waived constitutional rights.” This argument, if true, would seem to foster more plea agreements over the status quo, or the status quo ex ante, you know what I mean.

Wednesday, September 29, 2004

The NYCDL Brief

This very brief post will discuss the amicus brief submitted by The New York Council of Defense Lawyers (“NYCDL”). The New York Council of Defense Lawyers is a not-for-profit professional association of approximately 200 lawyers (many of whom are former federal prosecutors) whose principal area of practice is the defense of criminal cases in the federal courts of New York.

The NYCDL brief is relatively short (23 pages) compared to the other briefs submitted in Booker and Fanfan. The brief only addresses the first question and agrees with the government’s severance position on the second question.

The crux of the brief attacks what the NYCDL identifies as three faulty premises, which are:

(1) because the Guidelines are regulations promulgated by the Sentencing Commission, rather than statutes enacted by Congress, the Sixth Amendment analysis in Blakely does not apply; (2) there are constitutionally significant differences between the Washington scheme and the Guidelines; and (3) the Guidelines do nothing more than what judges historically did under indeterminate sentencing schemes and therefore, because indeterminate schemes are constitutional, the Guidelines are constitutional.

I’m not going to discuss the substance of the brief because I think it overlaps largely with others briefs in this case. I will say that I’m surprised that this brief didn’t focus more on cases from New York. After all, the NYCDL claims that they “offer[] the Court the perspective of very experienced practitioners who regularly handle some of the most complex and significant criminal cases in the federal courts.” I’m particularly surprised that the brief fails to engage Judge Lynch’s opinion in Emmenegger (SDNY).

Blog Housekeeping

As you may have noticed, Blogger has now enabled readers to email posts by clicking on the little mail icon underneath each post. It works well and is an easy way to share blog posts with your friends.

I've also enable "anonymous" commentary for each post. Some readers would not rather give their names, and now they don't have to. Should you write to me, I won't use your name unless you give me permission. That's been my policy all along.

The NAFD post, which should have been up a few hours ago, is now up. My commentary on the NYCDL brief is still on track for tomorrow.

The cases and filings sidebar is due for an update. That should be coming soon.

The Bravenet poll, which asks how you think the Booker and Fanfan cases will come out, is nearing 200 votes. The results may surprise you. The poll is located on the right-hand sidebar, below the counter.

The NAFD Brief and Plea Bargains

Today’s focus is on the brief submitted by the National Association of Federal Defenders. Before you even turn the first page of the brief, you’ll notice that the NAFD didn’t team up with the NACDL to write a brief (or vice-versa) as they did when they filed a brief in July at the certiorari stage. Interesting. (My discussion of the NACDL brief can be found here).

The NAFD brief makes one overarching argument, which is that the principles of Blakely assimilate easily into practice under the federal guidelines. This brief is very “practical,” meaning that it uses a number of cases and statistics to present a “real-world” vision of a Blakely-ized sentencing system, and I think it paints a convincing picture. In the words of the NAFD, “Real-world experience dispels the myths imagined by those who choose to avoid Blakely and its application in federal sentencings.” While describing what the NAFD considers to be an ideal post-Blakely world, the NAFD asserts that Blakely would only affect 3% of guidelines cases. The 3% represent the cases that go to trial. Only those cases, says the NAFD, would be affected significantly by Blakely (but in a way that judges and juries can handle).

The Blakely majority and the dissenters sparred over Blakely’s (and even Apprendi’s) impact on plea bargaining. A centerpiece of that debate between the Justices was a 2001 article written by Stephanos Bibas entitled, “Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas.” (110 Yale L. J. 1097). In this post, I discuss some of the assumptions and arguments from the NAFD brief about plea bargaining in a Blakely-ized world.

It Will Only Be 3%, Really

If the NAFD is correct, that Blakely will only affect 3% of all federal cases, the additional burdens imposed by a Blakely-zied justice system should be minimal, or at least bearable. The NAFD appears to rely on this figure in an attempt to make that argument. But is that really true? The NAFD tries to sell that argument, but I’m not sure I’m buying.

First of all, the 3% figure is a reflection of the current rate at which defendants choose to go to trial. It doesn’t, and can’t account for a Blakely-ized world. The NAFD maintains, however, citing statistics before and after Apprendi, that the number is likely to remain at 3% or go lower, if the statistics from 1999-2002 are a trend. “Despite Apprendi, which required new allegations and proof in federal prosecutions, the number and percentage of criminal trials have decreased, not increased.”

It seems to me that Blakely, if applied in the manner which the NAFD thinks is best, will do a lot more to shake-up the criminal law compared to Apprendi. Although I don’t have statistics to support this assertion, I’ll make it anyways. I think that a greater number of cases have Blakely problems compared to Apprendi problems. In addition to Blakely’s broader net, it appears as though Blakely is a more potent weapon. I think Justice Scalia recognizes that when he wrote that, “Every new element that a prosecutor can threaten to charge is also an element that a defendant can threaten to contest at trial and make the prosecutor prove beyond a reasonable doubt.” Thus far, much of the “chaos,” as some would say, in the federal system emanates from defendants who are getting comparatively light sentences as a result of Blakely. (Tractor man, I’m looking in your direction.) Apprendi certainly cut short many sentences, but it didn’t unravel the guidelines. Blakely might.

NAFD argues (p. 17-18) that more specific indictments are likely to encourage compromise, resulting in pleas. They contend that defendants will gladly take a plea which doesn’t leave their sentence to chance, or a non-lawyer probation officer, to be more specific. I’m not sure if that’s true, either. What if the government’s evidence for the bulk of the enhancements is weak? It doesn’t matter what the non-lawyer probation officer recommends, the prosecutor would still have to prove the enhancements to the jury. What about white collar offenses? The base level offense for those crimes are very low, leaving the amount of loss as the decisive factor in ratcheting up a sentence. Wouldn’t it make sense to go to trial in those cases? Of course, the government will try to slap you with perjury and obstruction of justice if you do go to trial and lose, but I can imagine cases where going to trial may still net a defendant a lower sentence, but only under Blakely, not Apprendi.

I also wonder if there are other variables which may be pressing the plea numbers upwards, despite Apprendi. Maybe the change in administration in 2000?

One interesting question to ponder is, what will happen to plea rates if the system is Blakely-ized and the PROTECT Act undercut? If judges’ authority to depart downward is rejuvenated, how will that, in combination with Blakely affect plea rates?

Finally, assuming that the NAFD is right about all of its claims, I ask, is that a good thing? Several commentators have criticized the current guideline regime for shifting power to the prosecutor, which they say has resulted in fewer and fewer trials. I think that a vast majority of criminal defense lawyers consider that to be a bad thing. The rules of the game, as they currently exist, reward pleas and punish (severely) those that choose to exercise their constitutional rights to a trial. If the rate of trials remains at 3%, or lower, four years after Blakely, will the defense bar have won this battle? Perhaps the average length of sentences will drop, and that will be the defense bar’s symbol of victory.

Other Arguments of Note

Although I focused on plea bargains in this post, the NAFD makes a number of other valuable points. Here’s a very quick preview:

- The Federal Rules of Criminal Procedure implement the requirements of the Fifth Amendment’s indictment clause in manner that could incorporate Blakely’s principles. (page 7).

- The Department of Justice Manual recognizes that proper allegations in an indictment are not limited to only the statutory elements of an offense. (page 8).

- Juries are already doing what many say is impractical, deciding guilt or innocence and then deciding sentencing factors. See United States v. Carlos Cardenas, et al., Case No. 03-20450-CR-GOLD(s) (S.D. Fla.), available at (Local Option Images). (page 24).

Finally, I’d like to point out that on page 27 of the brief the NAFD argues that there is nothing in the text of the SRA which requires judicial factfinding or the use of a specific burden of proof when applying the guidelines. My colleague at Columbia Phil Fortino made this argument a few months ago in an essay, which is about to go to the printer, entitled, “A Post-Blakely Era or Post-Blakely Error?

Tuesday, September 28, 2004

More waiting in Colorado and Duke Law Professor Neil Siegel's thoughts on Blakely

Colorado U.S. District Judge Daniel Sparr recently decided that he would postpone sentencing a defendant until Dec. 9th. The Rocky Mountain News has a story.

Duke Law Professor Neil Siegel has offered some thoughts on Blakely. Prof. Siegel is a true Blakely insider; he was clerking for Justice Ginsburg just a few months ago. Here's a look at what he has to say:

"Although it was overshadowed by more high-profile cases, Blakely may end up being last year's most momentous decision in terms of concrete human consequences."

You can read more here.

Berman v. Bibas - On Online Debate

Debates are officially "in." This Thursday, George Bush will debate John Kerry at the University of Miami. Both sides claim that their opponents have never lost a debate. And as if that hyperbole wasn't sufficient, the Bush people are claiming that John Kerry is the best debater since Cicero. (If that isn't funny enough, I highly recommend this article entitled, "Late-Night Jokes About Bush, Kerry and the 2004 Presidential Debates.") So, this sets up a guaranteed fall for one of the candidates. The Vegas bookmakers must be utterly bored to death by that prospect.

If Presidential debates are not your thing, maybe a Blakely debate is more appealing. The Legal Affairs Debate Club has launched an online debate between Professors Doug Berman and Stephanos Bibas. The topic: Blakely, of course. More precisely, the question is, "Can the Court clean up its Blakely mess?" For those of you who don't know, Doug Berman is the best debater since John Kerry. Same goes for Prof. Bibas.

On a related note, college students across the country are currently debating a proposition which asks whether our nation's criminal law needs reform. Several students and coaches have written to me, asking how they could use the Blakely ruling as an argument in favor of reform (and how to respond to it). Professors Bibas and Berman's exchange should be a useful resource for college debaters looking for an angle.

All this debate talk has stirred a bit of nostalgia for me. I debated for 4 years in high school and 4 years in college. After finishing my degree at the University of Michigan, I coached college debate at Michigan for 3 years. I nearly made it my career. Instead, I've made this blog my career. You win some, you lose some.

Excellent Resources from the Vera Institute of Justice

It has come to my attention that I failed to report the publication of two very useful reports from the Vera Institute of Justice.

In August, the Vera Institute published a report entitled, "Aggravated Sentencing: Blakely v. Washington — Practical Implications for State Sentencing Systems." And this month, they published " Aggravated Sentencing: Blakely v. Washington: Legal Considerations for State Sentencing Systems." Both reports are very useful for anyone grappling with Blakely's implications for state sentencing regimes.

I've also added the Vera Institute as a link under the "Other Useful Links" section of the blog.

Monday, September 27, 2004

The WLF Brief - Trying to Unlock Blakely's Potential

Last month, the Washington Legal Foundation hosted a useful Blakely conference in Washington, DC (details here). Today, I’m offering some thoughts on the WLF’s amicus brief, which focuses on the policy side of the Blakely dispute.

The first part of the WLF brief contends that the guidelines are invalid under Blakely, offering some arguments for why the guidelines create “legal rights,” which the WLF says means a jury right.

The second part of the brief is the policy analysis, at times making normative arguments for reform of the guidelines. Here, the WLF appears to invite the Court to force Congress’s hand into debating sentencing reform. On page 22, the amici state, “the partial or complete invalidation of the current federal sentencing scheme on Blakely grounds would give Congress the broader opportunity to address the many fundamental flaws and unfairness in the harsh federal Guidelines.”

What follows is a brief discussion of both sections of the WLF brief.

The Guidelines Create Legal Rights

On page 7, the WLF begins the argument that the guidelines create legal rights which the 6th Amendment protects. Seizing on language from the Blakely decision which indicates that determinate sentencing schemes create such a right, the WLF argues that the guidelines both cabin judicial discretion and simultaneously create legal rights to jury deliberation.

To the “legal rights” claim, on page 14, the WLF argues that the current construction of the guidelines lacks “structural democratic constraints.” Tying together some academic work that explores the democratic function of the jury and the Apprendi ruling, the amici argue that democratic values favor jury determination of the facts necessary for punishment. (Doug Berman has offered his thoughts, as well as those of Professor Bill Stuntz, on democracy and Blakely.)

A Ruling for the Respondents Would Unlock Sentencing Reform

What distinguishes the WLF brief is that it does not address the severability question presented in Blakely. Instead, they chose to focus on the possibilities for sentencing reform which could blossom from a ruling for the respondents. The WLF’s bottom line is that the Blakely decision “present[s] an opportunity to replace the harsh and irrational Guidelines with more humane and even-handed sentencing policies and procedures.”

One possibility is that Congress will adopt a sentencing scheme like the one found in Kansas, which the WLF appears to favor. On page 21, the WLF says that the Kansas scheme could “readily be adapted for the federal context.” The authors point out that if the federal government implemented a system like the one in Kansas, it would greatly simplify the federal sentencing process. While many consider simplifying the federal sentencing system a plus, many do not – and of the people in the latter category, many of them are in Congress. The Kansas system may be easy to administer, but ease of administration is a double-edged sword when it comes to federal reform efforts.

I’ve discussed similar reform options and the potential reform in a forthcoming publication of my own which you can access here. My essay is more of a realpolitik look at Blakely’s potential for reform but it fits nicely with the second half of the WLF brief.

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.

Has the 3rd Circuit also joined the waiting game?

A few days ago, in a post entitled Waiting Game, I discussed two opinions from the 7th and 9th Circuit which have postponed sentencing opinions until the resolution of Booker and Fanfan. As you may know, the 7th and 9th Circuits have issued (opposing) rulings on Blakely's application to the federal guidelines. The 3rd Circuit, however, is one of a few circuits that has not issued a Blakely ruling.

Peter Goldberger has shed some light on the state of Blakely in the 3rd Circuit in the comments section of the Waiting Game post, for which I am grateful. Below, you'll find the text of his post in the comments section:

It appears that the Third Circuit is taking the same approach. I have a case, argued back on May 27, which presents the question whether an upward *departure* violates Apprendi as applied in Ring and Blakely, because 18 USC 3553(b) does not permit a sentence above the top of the guideline range unless "the court finds" additional facts to warrant a departure. (There are also contested Chapter 2 and Chapter 3 *adjustments* at issue.) The parties filed supplemental memos on this in July. On Sept. 17 we received an order from the merits panel that the case is being held under advisement pending the decision in Booker/Fanfan. I have sent the exact info and wording to Jason, in case he cares to post it.-- Peter Goldberger, Ardmore, PA

This page is powered by Blogger. Isn't yours?