Tuesday, May 17, 2005

Booker and Fanfan

The following draft was written by myself and Jennifer Willits regarding sentencing law. I am not incredibly pleased with it but I thought I would put it out there for criticism.

Are you concerned that the government may be interfering with your constitutional right to a trial by jury, with charges proven beyond a reasonable doubt? The U.S. Supreme Court is. In June 2004, the Court decided in Blakely v. Washington that Washington State sentencing guidelines are in violation of a defendant’s Sixth Amendment right to a jury trial. The majority opinion, per Justice Scalia, indicates a strict reading of the constitution. It was clear to the majority that framers intended the jury as an important check on governmental power in order to protect the rights of the individual. Modern sentencing guidelines have required judges to consider evidence that has not been submitted to a jury, and enhance sentences based on a “preponderance of the evidence.” The Blakely case held that this practice is an unconstitutional dilution of the right to a jury trial in criminal cases and the accompanying standard of proof (beyond a reasonable doubt).

The blunt rule in the case left court systems stumbling and directionless with regard to sentencing rules and procedures. Congress scrambled to come up with a legislative response; judges issued multiple rulings in single cases because they were unsure how to proceed in light of the radical holding. The much-anticipated January 2005 case of United States. v. Booker further interpreted the Blakely decision, including application of the rule to the Federal Sentencing Guidelines. In Booker, the Court excised and severed related portions of the U.S. Code.

Judges, attorneys, and other legal professionals were stunned by the unexpected rulings of Blakely and Booker. Professor Douglas Berman, a sentencing law expert said this:

Supreme Court Justice Sandra Day O’Connor’s characterization of Blakely as a “No. 10 earthquake” and noted that at least one government brief…compared the decision to “Godzilla rampaging through Tokyo...” Ultimately, I am not sure any metaphor can do justice to a decision that may be the most consequential and important criminal justice decision, not only of the last term or decade or even of the Rehnquist court, but perhaps in the history of the Supreme Court.

Blakely upended the system without a full explanation, and left many unanswered questions. The answers, or at least some of them, came in the Booker opinion. However, the questions remain: how will the circuit courts interpret and apply Booker and more importantly, how will the Ninth Circuit? How will Congress respond to the Court’s invalidation of statute and the subsequent turmoil in the legal system? This casenote will briefly address unresolved problems raised by the case as a look at what the future may hold.


Over 20 years ago, Congress passed the Sentencing Reform Act of 1984 . Prior to this date, federal judges had broad discretion with regard to sentencing within a wide statutory range. The Act was passed in an effort to avoid disparate sentences for similar crimes and to provide fairness and predictability in sentencing ranges. The Federal Sentencing Commission was formed under the Act, and the commission established a set of mandatory guidelines for the federal judiciary. During the last 25 years, most state courts have also done away with the discretionary sentencing style of the past and adopted their own guidelines, which vary from state to state but follow the ideal of providing certainty in sentencing.

Except for a few minor modifications, the Federal Sentencing Guidelines have remained constant for two decades, withstanding several direct and indirect attacks at the Supreme Court level. The 2000 case Apprendi v. New Jersey questioned the constitutionality of modern sentencing procedure.

In Apprendi, a New Jersey defendant was charged with ________-degree possession of a firearm, a charge that carries a 5 to 10 year sentence. He pled guilty to second-degree possession, but as an additional fact, the court found the crime to be racially motivated. The finding was made by a “preponderance of the evidence.” The defendant was sentenced to 12 years in prison, 2 years beyond the New Jersey statutory maximum. The Supreme Court reversed, holding that findings which may increase the sentence beyond the statutory maximum must be “submitted to a jury and proven beyond a reasonable doubt”.

Apprendi’s impact was also diminished by narrow interpretation in lower courts , and the desire of the legislature and judiciary to preserve the status quo. Four years after Apprendi, the U.S. Supreme Court affirmed the rule from the case in a way that left no room for such narrow interpretation in Blakely.

Ralph Blakely was sentenced to 90 months for kidnapping, 37 months more than the statutory maximum. The enhanced sentence was permitted by Washington State’s sentencing guidelines and justified based on the judge’s finding of “deliberate cruelty.” Blakely appealed on the grounds that this sentencing procedure (similar to numerous guidelines promulgated throughout the US and as well as the Federal guidelines) "deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts essential to his sentence." The US Supreme Court granted certiorari to review this issue.

In an unexpected five-four decision, the Court held per Justice Scalia that the Washington State sentencing guidelines violated the Sixth Amendment right to a jury trial. Citing Apprendi, they followed the rule which stated that "other 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." Although the Apprendi rule had been applied in previous cases, it was always limited in its application. This absolute and unqualified rule in Blakely turned twenty years of sentencing reform upside down.

Justice O’Connor pointed out in a prophetic statement in her dissent that the Blakely decision would not be limited to Washington state law, but would clearly affect the Federal Sentencing Guidelines as well. As the January 2005 decision in Booker demonstrates, she was absolutely correct. Booker applied the Blakely decision to Federal law, going so far as to invalidate and excise a portion of the United States Code.


Facts and Procedural History:

Freddie Booker was charged with possession with intent to distribute at least 50 grams of crack (statutory minimum of 10 years prison, life maximum). The jury heard evidence that Booker had 92 grams in his duffel bag, and found him guilty of the charge. Based on the jury’s finding, combined with Booker’s prior criminal history, federal sentencing guidelines required the judge to assign a “base” sentence of 210 months minimum.

In post-trial sentencing proceedings, the judge concluded by a preponderance of the evidence that Booker possessed an additional 566 grams of crack and that he was guilty of obstructing justice. Those findings required the judge to impose a 360 months minimum sentence. The judge sentenced Booker to 30 years (360 months) in prison.

On appeal, the seventh circuit court held the sentence was an unconstitutional violation of Booker’s Sixth Amendment rights, citing the Apprendi rule and relying on the recent Blakely decision. The case was remanded to the District Court with instructions to resentence within the range consistent with jury findings, or hold a separate sentencing hearing before a jury. The Government petitioned the Supreme Court for a writ of certiorari, which was granted, asking the Supreme Court to determine whether the Apprendi line of cases applies to the Federal Sentencing Guidelines, and if so, what portions of the guidelines remain in effect.

Reasoning of the Majority

Justices Stevens delivered the first part of the majority opinion by answering the question as to whether the current sentencing guidelines violate the Sixth Amendment, and held that they do. He affirmed the rule from Blakely “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.”

There is no significant distinction between Washington State procedure (Blakely) and the Federal Sentencing Guidelines; thus, the rule applies in Federal court as well as state. Both systems are unconstitutional because they impose mandatory guidelines on judges. Justice Stevens explained:

We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. See Apprendi, 530 U.S. 481; Williams v. New York, 337 U.S. 241, 246 (1940). Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges… When a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deemed relevant.

If the guidelines were “merely advisory” a Sixth Amendment violation would be avoided, but current law states “that a court shall impose a sentence of the kind, within the range” established by the Guidelines.

Justice Breyer delivered the second part of the opinion, further clarifying statements made by Stevens as to the application of the rule. The majority found portions of the U.S Code to be incompatible with the Court’s holding, and addressed the question of whether this finding invalidates the Guidelines “as a whole.”

The analysis included a discussion of the probable legislative intent of Congress with regard to sentencing statutes in light of the Court’s holding. Breyer concluded that the Guidelines need not be eliminated entirely, but must be modified:

One approach…would retain the Sentencing Act (and the Guidelines) as written, but would engraft onto the existing system today’s Sixth Amendment “jury trial” requirement. The addition would change the Guidelines by preventing the sentencing court from increasing a sentence on the basis of a fact the jury did not find (or that the offender did not admit.)

The other approach, which we now adopt, would (through severance and excision of two provisions) make the Guidelines system advisory while maintaining a strong connection between the sentence imposed and the offender’s real conduct—a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve.

***(discuss reasonableness standard from breyer’s opinion)***


According to Booker, Federal sentencing guidelines are now merely advisory instead of mandatory, and judges retain considerable discretion to sentence using a "reasonableness standard" which some observers have pointed out might end up being a different standard for every circuit.

Many experts believe the Booker decision did little to alleviate the problems and confusion created by Blakely. By allowing each federal circuit to build their own interpretation of the “reasonableness standard” through precedent, the problems Congress sought to avoid in passing the Sentencing Reform Act are perpetuated: disparate sentencing for the same crimes based upon the jurisdiction in which the defendant was charged and convicted.

Thus, the question remains: how will the circuit courts interpret and apply Booker and more importantly, how will the Ninth Circuit? Also, how will Congress respond to the court’s invalidation of statute and the subsequent turmoil in the legal system?

The first question has apparently been addressed in the Ameline case by the Ninth Circuit Court, which held that only "exceptional" cases will withstand the Sixth Amendment challenge issued by Booker. ***(need to discuss exceptional a little more)*** With this holding, the court has cleared the way for a vast number of appeals of prisoners who may now claim they must be resentenced.

The second question is still pending: although Congress initially responded to Blakely with a call for corrective legislation, members of the Sentencing Commission are recommending a “wait and see” approach in the wake of Booker until “it is clear that legislation is absolutely necessary and that any proposed legislation will withstand constitutional scrutiny”.


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