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January 14, 2005 - The Drug War Chronicle (US Web)

Editorial: Make No Mistake

By David Borden, Executive Director,

Return to
Blakely News Archive

It is a rare day when an establishment institution such as the US Supreme Court does something radical. Yet the Court has intervened in federal sentencing, and by extension probably in many states' sentencing, in a dramatic fashion. The harsh sentencing guidelines are now advisory, no longer mandatory. The rest of the story is complex. Though even conservative justices on the Court tend to oppose mandatory minimum sentencing, especially the harsh sentences common in today's drug war, the ruling does not strike down the mandatory minimum statutes themselves, which are distinct from the guidelines regime.

But it was a dramatic week nonetheless. One law professor/blogger was playfully chided by a reader for staying up too late -- 2:00am -- writing posts about the Booker and Fanfan rulings and their implications. The prof replied that even after he got to bed his mind continued to spin with Booker thoughts. It is one of those times when concerned parties in numerous quarters read, write, and talk close to nonstop to ponder how the world has changed. Make no mistake, this one is big.

At the same time, it's important not to leap to conclusions. Unquestionably, it is good that the guidelines are no longer mandatory -- no, good doesn't do justice to what has happened (no pun intended), it's awesome. But the direct implications, and the indirect political implications, are harder to gauge:

Advocates fear that Congress will rush to enact a new federal sentencing statute that satisfies the constitutional problems to which the Court objected.

Many drug offenders will still be subject to mandatory minimum sentencing, which doesn't seem to have been impacted by the ruling.

Judges will still have the power to sentence harshly if that's how they are inclined. Defense attorneys can appeal such sentences if they consider them to be "unreasonable," a concept created by the second, unexpected ruling in the case brokered by Justice Breyer, who played a key role in the Guidelines' original drafting. Conversely, however, prosecutors will have the power to appeal sentences they don't like as well.

Retroactivity appears to be limited to those who have not yet exhausted their procedural avenues for remedy -- which I don't understand, because it seems to me that unconstitutional is unconstitutional regardless of when it happened -- but that's what they did.

And there is much more. Despite the foregoing cautions, though, I suggest that celebrations this weekend are in order. The Booker and Fanfan rulings will undoubtedly help many who are now ensnared in a system that Congress long ago compelled to act unjustly and stripped of its options for showing mercy. The drug warriors who led that travesty, and the prosecutors who used and abused the opportunities it provided, have been dealt a major blow and disappointment, and that is "a good thing," as home living guru turned federal prisoner/justice reformer Martha Stewart might put it.

So allow yourselves a little joy, and get ready for the fight over this that is ensuing. And make no mistake, it will start soon.

January 14, 2005 - The Drug War Chronicle (US Web)

Supreme Court Ends Current Federal Sentencing System

For nearly 20 years, federal judges have been sentencing defendants to sentences beyond the statutory maximum based on findings of fact never considered by a jury. Under sentencing laws adopted as "reforms" in the 1980s, judges could use a lower standard of proof than required to convict defendants to find that they had, for example, trafficked in a certain quantity of drugs or embezzled a certain amount of money, and use those findings to add years to their sentences. In part because of the federal sentencing guidelines scheme, in the intervening period federal prison populations have swollen dramatically, with a majority of those prisoners being drug offenders.

But a Wednesday ruling by the Supreme Court has brought that system to a sudden halt. In a pair of cases decided this week, a closely divided court declared the guidelines system unconstitutional because it violated defendant's rights to trial by jury by allowing judges instead of jurors to make factual findings that could increase sentences. And in an unusual move, the court issued a second opinion on how to remedy the situation. In that opinion, the court held that the guidelines could remain, but they should be viewed as advisory instead of mandatory.

It is important to note, however, that while the court's decision is groundbreaking, it neither eliminates that other nefarious aspect of the federal sentencing system, mandatory minimum sentences, nor will it apply to those prisoners who pled guilty in plea bargains to avoid even longer sentences.

That the Supreme Court would deem the current sentencing system unconstitutional came as little surprise to legal scholars and other interested observers. In a case last year, Blakely, it found similar schemes in the states unconstitutional. Since then, the federal sentencing system has been in a chaotic limbo, as judges, prosecutors, and defense attorneys alike sought to adjust to what appeared inevitable and what has now occurred. The Justice Department urged federal prosecutors to seek to get defendants to waive their rights to appeal sentences based on last year's decision, while federal judges responded with a variety of steps, from ignoring the guidelines in sentencing to issuing two sentences -- one based on the guidelines, one not -- to refusing to sentence defendants until the issue was clarified.

What was not widely anticipated was the second part of Wednesday's ruling. In that opinion, Justice Stephen Breyer wrote that judges "must consult" the guidelines and "take them into account" in sentencing. But the critical point is that the guidelines are now merely advisory and judges' sentences can now be appealed on the grounds of "unreasonableness." In other words, the decision restores a measure of discretion in sentencing to federal judges, a step for which they have been clamoring increasingly loudly for years.

The impact of Wednesday's ruling will be immediate for the thousands of federal defendants whose sentencing has been in limbo since last year's ruling. The ruling will also allow already sentenced prisoners whose appeals have not been exhausted to seek redress in the form of lesser sentences. But for those tens of thousands of federal prisoners who have already exhausted their appeals, there is no recourse, according to legal scholars.

Drug reform and sentencing advocates greeted the ruling with a mixture of elation and apprehension over how Congress might react. "Today's Booker decision restores the original aim of the Sentencing Reform Act of 1984, which was to ensure that the guilty are uniformly punished only for their wrongful conduct, without wild and unpredictable results. For twenty years, federal courts have been forced to impose unjust, irrational sentences based on unproven allegations, speculative calculations, and the worst kinds of hearsay," said Barry Scheck, president of the National Association of Criminal Defense Lawyers. "Congress should welcome this opportunity to create a fair and just federal sentencing system, not a quick fix."

"This is an historic day for federal sentencing," said Mary Price, general counsel for the sentencing reform group Families Against Mandatory Minimums (FAMM). "Essentially, this decision will permit judges, who have decried the harshness of the guidelines, more room to do justice by weighing role in the offense, the severity of the offense, and other factors, such as drug addiction, age or the impact of incarceration on families. However, it provides little protection for defendants facing harsh sentencing judges. They must face them without the Sixth Amendment protections many had hoped for," said Price.

"We are ecstatic!" exclaimed Nora Callahan, director of the drug reform organization The November Coalition, which concentrates on ending the mass incarceration of federal drug war victims. "There has been no justice in the war on drugs, but now judges have their discretion back and the prison law libraries will be bustling," she told DRCNet, adding that the federal Bureau of Prisons had anticipated the ruling and set up "town hall" meetings at all federal prisons late last year to discuss a perceived need for increased access to prison law libraries once the ruling was issued.

But Callahan's elation was tempered with concern about what Congress might do in response. "Congress is going to revisit drug sentencing this year, and I keep wondering if we are going to get good changes, bad ones, or a mixture of both," she said. "Is there a broad movement strategy cooking to ensure our voice is mighty and cannot be ignored? We are leaning toward a massive letter-writing campaign and a sign-on statement to influence Congress. And it is time to demand a return to earned early release in the federal system as well."

The Justice Department was not as pleased. "We are disappointed that the decision made the guidelines advisory in nature," Assistant Attorney General Christopher Wray said in a statement. "District courts are still required to consult the federal sentencing guidelines, and any sentence may be appealed by either defense counsel or prosecutors on the grounds that it is unreasonable. To the extent that the guidelines are now advisory, however, the risk increases that sentences across the country will become wildly inconsistent."

In interviews with the New York Times Wednesday, congressional supporters of tough sentencing and foes of judicial discretion warned they will examine the decision and its implications closely and act accordingly. "As the court recognized, the ball is now in Congress's court," said Senator Orrin G. Hatch (R-UT), who said he was disappointed but not surprised. "We will need to examine our options carefully."

But with Hatch's old post as head of the Senate Judiciary Committee now held by moderate Senator Arlen Specter (R-PA), it is likely to be the House Judiciary Committee where the reaction is most severe. It was House Republicans, lead by Rep. Tom Feeney (R-FL), who last year wrote a provision blocking federal judges from engaging in "downward departures," or setting sentences at less than those required by law. "The Supreme Court's decision to place this extraordinary power to sentence a person solely in the hands of a single federal judge -- who is accountable to no one -- flies in the face of the clear will of Congress," Feeney said in a statement. The decision was an "egregious overreach," he added.

Congressional Democrats, on the other hand, urged patience and restraint. "Congress should resist the urge to rush in with quick fixes that would only generate more uncertainty and litigation and do nothing to protect public safety," Senator Patrick Leahy of Vermont, senior Democrat on the Judiciary Committee, said.

But Rep. Adam Schiff (D-CA), a former prosecutor who sits on the House panel, doubted that would be the case. "The professional judiciary haters in the Congress are going to have a lot of grist for the mill," said Schiff, who added that the decision was an opportunity for Congress to examine the guidelines "and see if we can come up with something better, not because we want to, but because we have to."

"The Justice Department is livid," said Jack King, communications director for NACDL. "They have lost all their power to grant downward departures solely at their discretion for people who provide 'substantial assistance' by implicating others," he told DRCNet. "This is less important for drug offenders, who often face mandatory minimums, but it is a real blow to their efforts to prosecute white collar criminals, whom they can threaten with a million years in jail 'but if you testify you can walk,'" he said. "They will claim they have lost their power to make plea bargains," he added, "but that's not true in those mandatory minimum drug cases. They can still cut a rat some slack."

Speaking of plea bargains, King also noted that the impact of Wednesday's decision will be limited because of the wide use of plea bargains. "Almost 92 percent of cases are resolved through a negotiated plea, and this decision is not likely to affect cases like those that have already been disposed of."

Still, the Supreme Court has upended the sentencing scheme that has packed the federal prisons. Now Congress is threatening to act. One is reminded of the old saying about the Chinese ideogram for "crisis." It supposedly consists of two characters: opportunity and danger.

Click here to read the Supreme Court decisions in the two cases, Booker v. US and US v. Fanfan. (PDF Format)

Visit Professor Douglas Berman's Sentencing Law and Policy blog for extensive ongoing discussion of the ruling.

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