Friday, January 14, 2005

Morning News Stories columnist Mark Allenbaugh writes, "The Supreme Court's New Blockbuster U.S. Sentencing Guidelines Decision: A Clear Sixth Amendment Ruling, with an Invitation to Congress to Create a Better Remedy." cleverly pokes, "Supreme Court to Congress: Here's what you really meant." Salon asked the current chair of the American Bar Association's committee on sentencing, Jim Felman, a practicing defense attorney in Tampa, Fla., to shed some light on the surprising Supreme Court news.

The Washington Post editorializes, "The Court on Sentencing."

Oregonians will find the following article interesting, "A better way to set prison time - Hit to federal sentencing laws is a reminder to Oregon that the state also must update its court practices."

Thursday, January 13, 2005

More News Stories

I have some coherent commentary planned for tomorrow. Until then, here are a few more news stories of note.

Supreme Court generates more sentencing turmoil,” from The Columbian:

Stephen Kanter, a professor at Lewis & Clark's Northwestern School of Law, said many sentences may be reconfirmed, with judges saying they would have given the same sentence even if they hadn't been bound by guidelines.

U.S. Sentencing Guidelines Made Advisory by Court,” from Bloomberg:

``It probably will create additional leverage for defense counsel in negotiating agreements,'' said B. Todd Jones, a former U.S. attorney in Minnesota. ``They know they have two bites at the apple now'' -- with prosecutors and judges.

Lots and Lots of News Stories

Here is a collection of recent news stories on yesterday's opinions by the Court. Where relevant, I've excerpted interesting parts from the stories.

"High court loosens criminal sentencing guidelines," from the Seattle Times:

Gregory Poe, a Washington, D.C., attorney and former federal defender, said, "Congress is likely to make changes. And there is great concern that Congress may have an appetite to create a system applying strict penalties regardless of the merits in individual cases."


Frank Bowman, a professor at the Indiana University School of Law and a leading expert on the guidelines, said, "There is one thing that appears to be clear: The court has, by either judicial fiat or an act of statutory interpretation, created a system of advisory guidelines which, I think you can at least argue, give federal trial judges the greatest sentencing power they've ever had."

Assistant Attorney General Christopher Wray said the Justice Department was "disappointed" that the court had made the guidelines advisory in nature, but emphasized that the opinion makes clear that trial judges still are required to consult the guidelines in making sentencing decisions.

"Area well poised in wake of Supreme Court sentencing decision," from the Waco Tribune:

Federal inmates at the McLennan County Detention Center in downtown Waco raised the roof for joy Wednesday morning after learning on television news that the U.S. Supreme Court had upended federal sentencing guidelines.

Most inmates there have yet to be sentenced and are waiting to go to court, said Thomas Medart, chief of security at the privately run facility.

"They're happy," he said. "It's postponed some of the sentencing that would have happened, but it's not creating any problems for us."


U.S. District Judge Walter S. Smith Jr., who presides over Waco's federal court and is chief judge for the Western District of Texas, said he wasn't surprised by the ruling. After all, Smith issued a ruling of his own in July saying the sentencing guidelines were not constitutional and violated defendants' Sixth Amendment right to a jury trial.

Smith said he was pleased with the decision because it will give federal judges more discretion in sentencing. He said


Whatever the fallout, Smith said he doesn't believe Wednesday's ruling will be the last word on the subject, an observation echoed on the Supreme Court. Congress will likely set higher mandatory minimums for many crimes, again taking away judges' discretion, he said.

Johnny Sutton, U.S. attorney for the Western District of Texas, said he needs more time to digest the high court's ruling. But it doesn't appear "the sky is falling," he said.

"Sentencing guidelines tossed out," from The Pittsburgh Post-Gazette:

Calling yesterday's decision a "mess," Ohio State University law professor Douglas Berman said: "This is going to be applied in diverse and dramatically different ways in the lower courts."

For students of the Supreme Court's internal politics, the split decision yesterday reflected the influence of Breyer, who worked on sentencing reform as the Senate Judiciary Committee's chief counsel in 1979 and 1980 and served on the Sentencing Commission from 1985 to 1989. "This is Breyer's revenge," said Berman. "He loves the world he created and wants to hold onto it any way he can."


Sen. Arlen Specter, R-Pa., who as the Judiciary Committee chairman would preside over any rewriting of sentencing law, reacted cautiously to yesterday's ruling. "I intend to thoroughly review the Supreme Court's decision and work to establish a sentencing method that will be appropriately tough on career criminals, fair and consistent with constitutional requirements," he said.

"Judges Freed From Sentencing Rules," from the LA Times:

By basically preserving the current system, the ruling is not likely to have a broad effect on criminals serving federal terms or those awaiting sentence. It is unclear what effect it will have on future sentencing.

"There are going to be a lot of disappointed criminals in federal prison today," said Kent Scheidegger of the Criminal Justice Legal Foundation, an organization in Sacramento that supports the rights of crime victims.

Some other stories include: "Sentencing ruling may aid Cianci's early release," from the Providence Journal; "Justices weaken sentencing rules," from the Philadelphia Inquirer;"Federal sentencing system to get overhaul," from the Knoxville News Sentinel.

Late Nite Thoughts

I’ve put together some of my initial reactions to today’s decision in Booker and Fanfan. The decision is a whopping 124 pages and there’s a lot to discuss, of course. These are just preliminary thoughts that I hope to refine and pick-up in the next several months.

The first opinion, written by Stevens, addresses the first question: does Blakely apply to the guidelines? The answer is yes. Although there is plenty to talk about here, the real action is in the second opinion, authored by Breyer.

Two meta-observations. First, the tone of both opinions is rather matter-of-fact when compared to Blakely. Of course, Scalia is not exactly the kumbaya type, but I get the feeling that the bitter fight over the guidelines was waged in Blakely, not in Booker and Fanfan. Second, the Booker and Fanfan opinions don’t cite to academic commentary, whereas Blakely cited to academics on the issue of prosecutorial discretion and pleas. In the remedy opinion, the Court makes several assertions regarding alternative remedies that could have been more fully explored if they had cited to scholarly work.

Now, I’ll turn to a few topics that stuck out to me.

Elements, Statutory Construction and the 6th Amendment

The Court’s first citation is to In re Winship. To my surprise, the Court then discusses Jones at length. Jones was a statutory construction case where the Court was called upon to decide whether Congress intended to create 3 separate car jacking offenses, or whether the statute identified sentencing factors. Although Jones (and Castillo and Almendarez-Torres) are relevant, they do not pose 6th Amendment questions. These cases presume the answer to the question before the Court. We know that the government must prove all elements of an offense to a jury beyond a reasonable doubt. It’s unclear how this line of cases helps us understand how we should treat a leadership enhancement (which is not an element of any offense) in light of the 6th Amendment.

But here’s the tougher question: is drug quantity an element of the offense after Booker and Fanfan? The opinion suggests that they are not, but that they may have to be treated as elements. Judge Easterbrook’s dissent in Booker said that the majority’s conception of drug quantity under Blakely was nothing more than Apprendi. Ok. Where do we stand now?

(I recognize that my thoughts on this are inchoate, but it’s late and I’m still just thinking out loud.)

What’s good law now?

The majority opinion authored by Stevens was forced to confront the viability of several cases now that Blakely applies to the guidelines. Here’s a quick run-down of what the Court said: Dunnigan survives. Witte and Watts are inapposite because they did not present 6th Amendment questions. Edwards and Mistretta are not inconsistent with the Booker ruling.

I find it hard to believe that none of these cases were overruled, or at least recognized as being in tension with the ruling. One gets the feeling that Stevens is distinguishing these cases on very narrow grounds that may not survive closer scrutiny.

Retroactivity, Prior Convictions and Mandatory Minimums

Unfortunately, the Court didn’t say much (if anything) about retroactivity, prior convictions (Almendarez-Torres) or mandatory minimums, and fact finding that leads to the imposition of mandatory minimum sentences (Harris).
This isn’t surprising, I guess, given that the cases didn’t present any of these issues. My guess would be that the Court will now grant cert on a case to handle the retroactivity question, which is the most pressing of these three topics. The Court’s adherence and praise of the Apprendi/Ring line of cases suggests that Booker and Fanfan won’t be retroactive.

What Would Congress Do? (WWCD?)

Debates will surely rage over the majority’s take on what Congress would have preferred if faced with the limitations imposed by Booker and Fanfan.

I’ll just make a brief point here and return to the topic at a later date. The Court appears to interchangeably apply two standards here: what would Congress have intended and what will make the smallest fuss. The second standard appears to play a prominent role and I’m not convinced that that’s the right standard. I am also a bit skeptical of the Court’s zealous protection of judicial factfinding. Of course “court” meant “judge” in 1987. All we knew was judicial fact finding. I’m not convinced that this legislative preference should trump the newly invigorated 6th Amendment. Instead, we’ve been given a “soft” 6th Amendment jury trial right. This portion of the remedy opinion seems out of sync (“old school,” if you will) with the new, hip, “not your found fathers” 6th Amendment that Stevens “updates” for us.

Advisory Guidelines, Relevant Conduct and Uniformity

In the second opinion, the Court justifies its choice of advisory guidelines over a jury fact-finding regime, in part, on the need to ensure uniformity by adherence to the offender’s real conduct, as expressed by relevant conduct. The argument here is that if judges can’t take relevant conduct into consideration, there will be an unbearable sentencing disparity that the SRA was supposed to eradicate.

This argument, in my view, relies on some questionable assumptions about the ability of a jury fact-finding regime to properly “account” for relevant conduct. But even assuming that jury fact-finding could not account for relevant conduct, I’m not sure that the sentencing disparity that the majority is talking about here is the kind of disparity that gave birth to the guidelines. Base level offenses would remain unaffected by a jury fact finding system. The defendant would have to answer for any discoverable relevant conduct that makes it into the indictment. Just how much of a disparity are we facing here?

Not to mention that there are competing sentencing goals that are recognized by the SRA that would counsel against rigid adherence to a real offense system. The Court’s discussion of relevant conduct cast in light of uniformity concerns glosses over the fundamental incompatibility of Blakely and relevant conduct, in my view.

Wednesday, January 12, 2005

Guidelines Suffer Technical Knockout - May Live To See Another Day

Here's some old news - the Supreme Court ruled today that Blakely applies to the guidelines. The remedy appears to be making the guidelines advisory, subject to appeal based on a "reasonableness" standard.

I just got my first look at the opinion(s), which you can access here. I reserve the right to correct my characterization if I made a mistake.

More to follow later tonight...

5 hours and counting?

Well, in 5 hours I'll be on a plane to Ft. Lauderdale. The Supreme Court will announce any new decisions tomorrow at 10 am. So my prediction, based solely on my travel schedule, is that Booker and Fanfan will be decided tomorrow, as my plane takes off.

Details to follow, if I'm right, after I land in FLL.

Tuesday, January 11, 2005

No Decision Today

Still no decision. The next possible day for a decision is tomorrow. That and you might even get that pony you wanted for your birthday.

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