Thursday, January 13, 2005

Booker and Fanfan: The Sentencing Guidelines

I suppose I would be remiss if I didn’t say something about yesterday’s Supreme Court ruling in US v. Booker and US v. Fanfan, however, seeing as how the Court produced 124 pages of material to read, I think that 24 hours or so ought to be enough time to digest most of what at least the 2 majority decisions have to say. That’s right sports fans, 2 opinions in one case received the 5 votes necessary to be considered binding. How is that possible, you ask? Simple, Justice Ginsburg, bless her aging heart, jumped the fence and consequently is the only Justice to have joined both opinions, thereby giving both majority status.

Okay enough with the procedure, let’s get down to substance. First, I suppose some background is necessary because it is relevant to both the Court’s opinions and my opinion about the Court’s opinions. As many of you know, last term when the Court decided Blakely v. Washington, 542 U.S. ___ (2004) it invalidated the Washington state sentencing guidelines on the grounds that the statutory scheme violated the 6th Amendment right to a trial by jury. The Blakely Court specifically passed on the question of whether the Federal Sentencing Guidelines, 18 U.S.C. § 3553 et seq., were affected, reserving that for this term. Two cases were selected by the Justice Department for expedited appeal after the havoc that ensued in the lower federal courts. U.S. v. Booker involves a defendant who was tried and convicted of possession with the intent to distribute 92.5 grams of cocaine base (crack). This transgression made Mr. Booker eligible for a sentence of 210-262 months, largely beacuse Mr. Booker had previously been a bad boy. However, the "pre-sentence report," prepared by the US Parole Commission, found that, in fact, Mr. Booker had been carrying 566 grams of cocaine base. The judge, during a post-trial sentencing hearing, found, by a preponderance of the evidence standard (as opposed to the stricter beyond a reasonable doubt), that Mr. Booker was carrying in excess of 500 grams of cocaine base, and here’s the kicker, despite the fact that the jury had never heard any evidence relating to 500+ grams, the judge elevated Mr. Booker’s sentence from a maximum of 262 months to 360 months. Mr. Fanfan (great name) suffered a similar fate as his sentence was increased from a maximum of 78 months to 94 months based solely on evidence disclosed through the pre-sentence report and adopted by a judge under a preponderance of the evidence standard.

The Court, having already held in Apprendi v. New Jersey, 530 U. S. 466, 490 (2000), that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The Court reiterated this holding in Ring v. Arizona, 536 U. S. 584 (2002), stating that "[i]f a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt." Ring, 536 U.S. at 602. Nevertheless, the Court went even further in Blakely by stating that "the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, at ___ (slip op., at 7). Taking these three decisions together, it seemed only logical that the sentences handed down by the District Courts in both Booker and Fanfan could not stand as they were based on findings by the judge and not the jury. This is exactly what 5 Justices, Stevens, Scalia, Thomas, Ginsberg and Souter, held. See Booker, slip op., at 8 (stating that "This conclusion rests on the premise, common to both systems, that the relevant sentencing rules are mandatory and impose binding requirements on all sentencing judges").

So we’re done, right, simple case. Clearly, the Sixth Amendment requires a trial by jury and only the facts determined by said jury can be considered when sentencing the offending defendant. Therefore, to the extent that the federal guidelines require or authorize judges to undertake independent fact finding that affects sentencing they are unconstitutional. Wait, not so fast, if only it were that simple. The Court, when it granted cert. in this case, deviated from its ususal practice of adopting the questions presented by the parties, and fashioned its own questions presented. The Court’s questions were as follows:

1. Whether the Sixth Amendment is violated by the imposition of an enhanced
sentence under the United States Sentencing Guidelines based on the sentencing
judge’s determination of a fact (other than a prior conviction) that was not
found by the jury or admitted by the defendant.

2. If the answer to the first question is ‘yes,’ the following question is presented: whether, in a case in which the Guidelines would require the Court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its
discretion to sentence the defendant within the maximum and minimum set by
statute for the offense of conviction. Booker, slip op. at 2 fn.1.

Given that the answer to question 1 is undoubtedly yes, on to question 2, and as luck would have it, a completely different majority opinion. This time, we have Justices Breyer, Ginsberg, Rehnquist, O’Connor and Kennedy for the majority (note the presence of Ginsberg in both majorities). This opinion attempts to answer the vexing question of "given what we know now, what would Congress have done?" This question is otherwise known as the severability question. This majority concludes that even though provisions of the Sentencing Guidelines are unconstitutional, Congress still would have enacted provisions designed to preserve the judges ability to consider additional conduct of the defendant before imposing a sentence. Take this quote for example, the Breyer majority states that "Judges have long looked to real conduct when sentencing. Federal judges have long relied upon a pre-sentence report, prepared by a probation officer, for information (often unavailable until after the trial) relevant to the manner in which the convicted offender committed the crime of conviction. Congress expected this system to continue." This kind of thinking represents, in my opinion, the real flaw with this majority’s opinion. It’s bad enough that they attempt to divine the reasoning of Congress in the dark, some 21 years after the initial Sentencing Reform Act was passed, but then to insist that there is somehow a distinction between "real" criminal conduct and conduct that a person is actually "convicted" for is, in my opinion, absurd.

If prosecutors do their jobs properly they should be able to prove beyond a resonable doubt that people are guilty of Breyer’s so called "real" conduct. Take Mr. Booker for instance. He supposedly was carrying 566 grams of crack, but was only convicted on 92.5, why? We don’t know, but are forced to assume that there was a reason, likely lack of compelling or reliable evidence. Had the government been able to prove the 566 grams beyond a reasonable doubt, why didn’t they? Simple answer, they didn't have to. They knew that if they could just get a "possission with intent to distribute" conviction that it would likely be enhanced at the post-trial hearing. Moreover, if we are to assume the 6th Amendment means what it says, then why not present all the evidence to the jury and let them sort it out. Ah, but Breyer and Co. have an answer to this question. Specifically they claim that:

[t]o engraft the Court’s constitutional requirement onto the sentencing
statutes, however, would destroy the system. It would prevent a judge from
relying upon a pre-sentence report for factual information, relevant to
sentencing, uncovered after the trial. In doing so, it would, even compared to
pre-Guidelines sentencing, weaken the tie between a sentence and an offender’s
real conduct. It would thereby undermine the sentencing statute’s basic aim of
ensuring similar sentences for those who have committed similar crimes in
similar ways.

Huh? I thought that the sentence imposed was supposed to be based on what the person was actually found to have been guilty of, not whatever additional "real" conduct the judge finds later is relevant. What happened to the concept of "innocent until proven guilty?" If there are additional allegations about a person, bring them forward by indictment, let people testify and hope that the jury finds them guilty. Don’t present the minimum of evidence required to get a person convicted of crime W, and then through the magic of pre-sentence reports obtain a sentence based on X, Y and, oh yeah, Z, which was really bad, so here’s an extra 15 years beacuse I the judge think it was more likely than not that you are guilty of that as well. I’m all for "tough on crime," but I’m even more in favor of a system that is fair, honest, just, and above all allows people to have a chance to respond to any and all allegations against them. What really stinks about this is that the so-called "real" conduct that Breyer and Co. are so concerned with is often filled with evidence that would otherwise have been inadmissible had there been a trial. In other words, the report more often than not chalk full of character evidence, hearsay, unproven allegations, and inference, upon inference, upon inference that is in no way relevant to the charged offenses. If you can’t get what you need admitted in trial a person shouldn’t be sentenced for it, plain and simple. Old legal maxim, you can’t do indirectly what you can’t do directly.

Here’s the best part though, at least for me. Breyer and Co. extol the difficulties of the criminal justice system by claiming it’s complicated:

How would courts and counsel work with an indictment and a jury trial that
involved not just whether a defendant robbed a bank but also how? Would the
indictment have to allege, in addition to the elements of robbery, whether the
defendant possessed a firearm, whether he brandished or discharged it, whether
he threatened death, whether he caused bodily injury, whether any such injury
was ordinary, serious, permanent or life threatening, whether he abducted or
physically restrained anyone, whether any victim was unusually vulnerable, how
much money was taken, and whether he was an organizer, leader, manager, or
supervisor in a robbery gang? If so, how could a defendant mount a defense
against some or all such specific claims should he also try simultaneously to
maintain that the Government’s evidence failed to place him at the scene of the
crime? Would the indictment in a mail fraud case have to allege the number of
victims, their vulnerability, and the amount taken from each? How could a judge
expect a jury to work with the Guidelines’ definitions of, say, "relevant
conduct," which includes "all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by the defendant;
and [in the case of a conspiracy] all reasonably foreseeable acts and omissions
of others in furtherance of the jointly undertaken criminal activity"? How would
a jury measure "loss" in a securities fraud case—a matter so complex as to lead
the Commission to instruct judges to make "only . . . a reasonable estimate. "
How would the court take account, for punishment purposes, of a defendant’s
contemptuous behavior at trial—a matter that the Government could not have
charged in the indictment? Booker, slip op., at 11-12 (internal citations
News flash, it’s supposed to be hard to convict people of crimes, even when you and everyone else knows that the defendant is guilty (i.e., OJ Simpson). That’s what the notion of innocent until proven guilty is all about, that’s why we have a Bill of Rights, that’s why we have the "beyond a reasonable doubt" standard. There will always been bad guys, but guess what, being a bad guy isn’t a reason to deprive you of your liberty. Maybe that’s sufficient in other countries, but not in the US, not under our Constitution. People often will find out I’m a lawyer and ask if I do criminal defense work. I say no, and they respond with "well that’s a relief I don’t know how anyone can defend those people." Guess what? I would do it in a heart beat (if I didn’t love my current job), not because I think the people are lovely and deserve to be free (though some are and do not deserve to be in the system), but because I believe in the criminal justice system, and the system doesn’t work unless everyone plays by the rules. Those rules make it hard to get a conviction, and the defense lawyers are there above all to make sure the prosecutors play by the rules and don’t railroad people through the system, which, by the way, is already designed to disfavor defendants.

Ok, end of soap box. Bottom line, Stevens, et al. were right and I hate to say this because I like Breyer and many of his (liberal) cohorts, but they got this one wrong, very wrong.


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