Friday, January 21, 2005

CLS Sentencing Symposium - Considerations at Sentencing – What Factors are Relevant and Who Should Decide?

The second panel’s topic was: Considerations at Sentencing – What Factors are Relevant and Who Should Decide?

The moderator was Judge John Martin, Debevoise & Plimpton.

The panelists were:

Kyron Huigens, Professor, Benjamin N. Cardozo School of Law
Kevin R. Reitz, Professor, University of Colorado School of Law
Paul H. Robinson, Professor, University of Pennsylvania Law School
Barbara Tombs, Executive Director, Minnesota Sentencing Guidelines Commission

This is by no means a complete or official report on the symposium; the Columbia Law Review will have an official report soon. All errors are my own.

Paul Robinson

Prof. Robinson began his presentation by suggesting that the question posed to the panel is misleading because it makes the assumption that there is one decision maker. In fact, there are several and they make a number of decision on several topics, such as:

Policymaking – setting goals, purposes
Rule articulation – turning general policy into articulable rules
Fact finding
Judgment making – expressing normative judgments
Determining punishment amount
Determining punishment method

Prof. Robinson used a chart (which I will post here when I get my hand on it tomorrow) that illustrates the kinds of decisions made by different decision makers (legislatures, judges, sentencing commissions, parole boards, juries, etc.)

In his opinion, the SRA got it right, but the Commission got it wrong.

Kyron Huigens

Prof. Huigens began by professing a preference for discretionary sentencing. He spent a great deal of time exploring the tension between Williams v. NY and the Court’s most recent 6th Amendment jurisprudence. That tension – known as the Blakely paradox to some (or possibly just me) – is that a judges can do what Blakely proscribes only as long as the legislature has refrained from establishing a statutory structure to guide sentencing. It seems inconsistent that judicial fact-finding is acceptable in indeterminate systems where defendant’s have little to no recourse to appeal a sentence, but impermissible when the legislature creates guidelines. He promised to explore this topic in an article he is working on.

Kevin R. Reitz

Prof. Reitz said that the states that have done the best job are the ones that have put in presumptive guidelines. That list includes Minnesota, Washington, Oregon, Kansas, North Carolina and Ohio. (There may have been others that I missed.) The best ones, he said, remove the prison release discretion from parole boards.

The states that have indeterminate systems are driving the prison population explosion.

Prof. Reitz discussed some of the problems he has with Booker and Blakely. The effect of Booker when lined up in the context of other Supreme Court decisions that have created loopholes to the Sixth Amendment is what he called “Constitutional Swiss cheese.” And there may be more holes than cheese.

The holes are all of the exceptions to the Booker rule, which are:

Williams; Booker II
Harris; McMillan

He summarized the lay of the land as follows. The following systems have no Blakley problems: voluntary guidelines, indeterminate sentencing, mandatory minimum guidelines and mandatory minimum statutes. The following systems have Blakely problems: presumptive guidelines, presumptive statutes, mandatory guidelines.

The jurisdictions with Blakely problems have two options – Blakelyization or avoidance (change the system entirely).

Barabara Tombs

Barabara Tombs began by explaining that Minnesota’s guidelines are driven by retribution as a penal philosophy. “That’s why we put people in prison.” (Or something close to that). She said that the Commission’s work is guided by their chosen penal philosophy. It helps the Commission to focus on what our guidelines can and cannot do.

She felt that Blakely and Booker will hurt the younger sentencing commissions more than the older ones.

She discussed some statistics from Minnesota which were of interest. In Minnesota they have a 2% upward departure rate for sex offenses and murder. There are a lot of downward departures in drug cases (60% in some cases). Curiously, Minnesota has mandatory minimum drug sentences but judges can depart downward from the mandatory minimum. (I’m not sure how that works).

Finally, she (sensibly, in my view) observed that Blakely was all about jury sentencing and after the first few pages of Booker, it seems to have disappeared. Where did it go?

Judge Martin

In wrapping up the panel, Judge Martin said that he was disturbed by how much deference is being paid to reducing sentencing disparities. He feels like we have elevated that goal to too high a position.

He said that he likes the new system over the old, because it leaves guidelines and appellate review. Hopefully Congress won’t jump in too quickly, he added.

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