01 July 2004

The Trickle Before the Torrent

Post-Blakely many seemed to have paused to size up the new landscape. However a trickle of decisions has begun. Here's the first and perhaps most radical:

U.S v. Croxford

The decision begins by describing Blakely as “potentially cataclysmic” and ends with “[g]iven this bleak prediction about the future, the court hopes that it has overlooked something and that the Guidelines can be constitutionally applied.” The tone between these two points doesn’t depart much from this baseline.

At first I was impressed because this judge obviously has a very favorable view of the federal sentencing requirements but had the integrity to follow the constitutional teachings of a case contrary to his beliefs. He rules that points cannot be added for “obstruction” or for “relevant conduct” (in this case another crime neither proven nor admitted to).

But at the same time he goes a step too far: “While this court has searched diligently for a way to disagree with the warnings of the [Blakely] dissenters, the inescapable conclusion of Blakely is that the federal sentencing guidelines have been rendered unconstitutional in cases such as this one.”

The problem with that statement is that it is not an accurate statement of the holding in Blakely. In fact, it badly overstates the supreme court’s decision. Blakely stands for the proposition that the maximum sentence in a determinative sentencing scheme cannot be increased by the consideration of factors which had not been stipulated to or found by a jury. That comes nowhere near the elimination of the federal sentencing requirements; it only stops upward departures based on unproven facts.

The Remedy:

With little support for his position, the judge converts the sentencing guidelines from mandatory requirements into sentencing recommendations.

(1) The judge first dismisses the possibility of a “sentencing jury” because “the statutes do not authorize such an approach.” The judge also shows no confidence in the ability of juries to do anything more than say yea or nay: “While juries are generally adept at determining the guilt or innocence of a defendant, the list of findings contemplated by the Guidelines is extensive and nuanced, modified and interpreted regularly in numerous court opinions, creating a task much better suited to judges rather than juries.”

[comment] While the judge is probably right (I have not dug through the federal statutes to check) in stating that the federal system has no provision for “sentencing juries,” it is dismaying to see his lack of faith in the abilities of a band of twelve citizens to determine facts. The question that arises, if you subscribe to that point of view is this: if sentencing has become so complex that a highly trained professional judge can barely wade through it and regular citizens would never find all the facts necessary for all the upward departures - maybe the system of piling on after the plea is a broken system? Perhaps?

(2) The judge then decides that sentencing under the guidelines without the possibility of upward departures for facts neither stipulated nor found by a jury is not viable. “This approach would appear to solve the Sixth Amendment problem with the Guidelines [but it] would be fundamentally unfair to the United States and would distort the guidelines.” Since downward departures for such things as acceptance of responsibility and being a minor participant are not required to be proven to a jury, requiring the government to prove beyond a reasonable doubt the factors which will determine a greater punishment in open court is unfair. The sentencing guidelines are meant to operate as a whole and the court cannot slice off the upward departures leaving only those factors which “would inevitably tug downward on criminal sentences, perhaps producing sentences that do not provide just punishment or protect public safety.”

[comment] Fairness to the government . . . fairness to the government . . . Hmmmm . . . I just can’t seem to find that section of the constitution. Oh, wait, that’s right - it ain’t there. There is no such provision because there is no such thing. Our government is a aggregation of power meant to accomplish those things which we cannot accomplish alone. This aggregation of power is neither inherently good nor evil but being untrusting types, our founders looked back to the Magna Carta and set out a document which would limit this government’s exercise of its raw power (just in case the government started acting like a sovereign with its own particular set of interests). A particularly bright set of fellows, our founders; apparently they foresaw the day when someone would assert that the government/sovereign has its own set of interests separate from the citizenry and tried to keep that set of interests in check.

The judge’s second argument has more play to it. The claim that the mandatory sentencing guidelines must be read as a whole and that sections cannot be judicially removed could have legs. The argument that Blakely unbalances the system falls flat because of the obvious imbalance (pro-prosecution) which is already built into the system. Nevertheless, Congress could have intended that a significant change in this imbalance lead to an abrogation of the mandatory sentencing requirements. While it seems doubtful that the intent of Congress was to scrap the entirety of the sentencing requirements if sections were found unconstitutional, I’ve never looked at that issue before. Have sections of the sentencing requirements been sliced off by judicial holdings prior to this date? If so that would seem to undermine the judge’s argument. Although not necessarily deadly to the judge’s opinion because of the potential great effect of Blakely, it could be instructive. I don’t find the judge’s argument persuasive. On the other hand, I must admit that it is definitely colorable.

(3) (a) The judge concludes that under Blakely he must go back to indeterminate sentencing, limited only to the maximum penalty and the minimum penalty allowed by the statute. He sets forth how under this system he is allowed to consider factors which would have been allowed under the guidelines and even factors which would not have been allowed under the guidelines. (b) The judge then takes the further step of deciding that he will consider the guidelines “as providing useful instruction on the appropriate sentence.” He then sentences using the guidelines.

[comment] As far as his argument goes in (a) above the judge is on point. If he’d just stopped there and sentenced his argument would have been much tighter. When he proceeds to (b) and relies on the guidelines he wanders into dangerous waters. By relying on the guidelines after he has foresworn them he puts his argument back into the zone of Apprendi et al. These decisions look to practical effects not theoretical underpinnings. The reasoning he has engaged in looks like a smoke screen for sentencing under the guidelines while pretending not to. Sadly, while the judge should admired for his honesty he loses points for not obfuscating.

[overall comment] When I first read this I must admit to having had a knee-jerk reaction. My first thought was that this judge was trying to force a Hobson’s choice on the courts appellate so that they would either have to refute Blakely or wipe out the entire sentencing structure as it now stands. After I set the opinion aside for a while I sat back down to reread it.

Upon a second reading my interpretation of the court’s intent changed. It is actually more subtle than my first impression led me to believe. While it is obvious that the judge strongly disagrees with the results announced in Blakely, I no longer believe my first impression correct. The judge seems to accept what the Supreme Court has wrought and is trying to do his best to make the system operate as closely as possible to the way in which it operated pre-Blakely. To that effect he has decided that the road best taken is one which the academics recommend in my post below (Virginia-izing the Federal Sentencing Guidelines). As a result oriented endeavor the opinion gets him where he wants to be.

I find the opinion unconvincing. I just cannot believe that it was the intent of Congress to give the judiciary the power to scrap the entirety of the guidelines if a portion were struck down. The guidelines are still, in large part, valid. Some downward departures are allowed and upward departures are still allowed based upon prior record. While the end result really doesn’t effect the constitutionality of the sentencing requirements, what the Blakely decision did was to balance the possible ups more closely to the possible downs. The few downward possibilities are no longer heavily outbalanced by the upward possibilities; in fact, the judge may be correct that they now outweigh the increases (although this would depend on a case by case application of the Defendant’s record). The sentencing requirements are still there and must be adhered to.

Of the two recent opinions discussing this matter, I believe the precognitive Massachusetts case has the better of the possible remedies. Applying the guidelines using the facts found by a jury (or stipulated) in conjunction with the record to determine the maximum punishment is the proper way to remedy the constitutional error.

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