Monday, January 17, 2005

The Fox Guarding the Chicken Coop

I apologize that I have been away from the blog, but every once in a while we do have such things called trials to attend, and I had just started one on January 12th --briefly interrupted by the Supreme Court's decision in US v. Booker & Fanfan on the 13th-- and, given the amount of coverage Booker was receiving elsewhere, I thought it best to not attempt to be the Judge Paul G. Cassell* of the blogs.

[*Judge Cassell gave us Croxford immediately after Blakely and has now given us US v. Wilson, No. 03-CR-00882 PGC (D.Utah, January 13, 2005) the day after Booker & Fanfan.]

What the Court gave in Booker with one hand (bringing the guidelines within the reach of Apprendi and the Sixth Amendment's jury trial guarantee), it took away with the other (holding that the guidelines would no longer be mandatory and, thus, outside the reach Apprendi and the Sixth Amendment's jury trial guarantee). As most of you know, the Court's opinion was really 2 opinions, the first --the merits opinion-- by Justice Stevens, applying Apprendi and Blakely and the Sixth Amendment jury trial guarantee to the sentencing guidelines; the second --the remedial opinion-- by Justice Breyer, deciding the remedy that should be provided for that fatal illness the guidelines had caught was to make the guidelines advisory, rather than mandatory, thereby taking them out of the reach of Apprendi, Blakely and the Sixth Amendment's jury trial guarantee.

The remedial opinion in Booker was hijacked (a finding I base on hearsay, using a preponderance of the evidence standard) by 5 Justices, 4 of who do not even believe in Apprendi, Blakely or Booker's merits holding! For that majority to write the remedial portion was tantamount to the fox guarding the chicken coop. What they do for a "remedy" is the greatest of ironies, as Justice Scalia indicates in his dissent. The following passage says it all:

The remedial majority takes as the North Star of its analysis the fact that Congress enacted a “judge-based sentencing system.” Ante, at 22 (opinion of Breyer, J.).That seems to me quite misguided. Congress did indeed expect judges to make the factual determinations to which the Guidelines apply, just as it expected the Guidelines to be mandatory. But which of those expectations was central to the congressional purpose is not hard to determine. No headline describing the Sentencing Reform Act of 1984 (Act) would have read “Congress reaffirms judge-based sentencing” rather than “Congress prescribes standardized sentences.” Justice Breyer's opinion for the Court repeatedly acknowledges that the primary objective of the Act was to reduce sentencing disparity. Inexplicably, however, the opinion concludes that the manner of achieving uniform sentences was more important to Congress than actually achieving uniformity—that Congress was so attached to having judges determine “real conduct” on the basis of bureaucratically prepared, hearsay-riddled presentence reports that it would rather lose the binding nature of the Guidelines than adhere to the old-fashioned process of having juries find the facts that expose a defendant to increased prison time. See ante, at 10–11, 22. The majority’s remedial choice is thus wonderfully ironic: In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing.

Scalia, J. (dissenting in part) (footnote omitted).

A Switch in Time?

There appears to be "some evidence" from which one can reasonably infer that Justice Stevens' dissent from the remedial majority was actually the majority opinion at one point. See Sentencing Law & Policy in this post wherein Justice Stevens' dissent from the remedial majority is quoted at n.8 (in part) as follows:

n. 8 ... The Court did not, as the dissent would have us do, strike down particular parts of the statute ...

Stevens, J. (dissenting in part). If nothing else, some law clerk didn't do his final proof reading after someone had switched sides. I will leave to others the speculation as to who the switching Justice was.

What now?

The only apparent winners -at least for now- are the federal district judges who have been granted more discretion. Whether they will exercise it or not, and how, still remains to be seen. If one goes by Judge Cassell's views as expressed in US v. Wilson, No. 03-CR-00882 PGC (D.Utah, January 13, 2005) ("Therefore, in all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons."), then the result in Booker is even more depressing than I'm willing to accept. After all, even with mandatory guidelines Judge Cassell could have departed for some clearly identified, persuasive and allowed reason. Apparently Judge Cassell bought into Justice Breyer's "carefully crafted statement" which Justice Scalia aptly describes in his dissent in part:

The closest the remedial majority dares come to an assertion that the Guidelines must be followed is the carefully crafted statement that “[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” Ante, at 21–22. The remedial majority also notes that the Guidelines represent what the Sentencing Commission “finds to be better sentencing practices.” Ante, at 20. True enough, but the Commission’s view of what is “better” is no longer authoritative, and district judges are free to disagree—as are appellate judges.

Booker (Scalia, J., dissenting in part) at n. 4.

My wish list for sentencing reform?

  • eliminating mandatory minimums
  • creating guidelines sentencing ranges that are not so draconian; and
  • making the guidelines mandatory again, jury friendly (i.e., simplified), and subject to the Sixth Amendment's jury trial guarantee, and going back to Koon standard for departures.

I have a host of questions (and even answers) regarding matters such as 5K1.1, 5C1.2, their statutory counterparts, acceptance of responsibility, etc., but that will all have to wait for another moment.