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If you make your living as a defense attorney, the Supreme Court’s decision on Wednesday declaring that current federal sentencing guidelines are unconstitutional is simultaneously cause for excitement and confusion. The decision could pave the way for judges to give lighter sentences to defendants who would have had no maneuvering room under the former system. But the decision, which left the federal guidelines in place but ruled that they must be “advisory” rather than mandatory, disappointed some defense lawyers who were hoping the high court would simply overturn the guidelines. And it’s far from clear what the actual impact of the decision on sentencing will be.
The unusual two-part decision is already stirring up controversy, with outraged Republicans citing it as another example of judicial overreaching.
Salon asked the current chair of the American Bar Association’s committee on sentencing, Jim Felman, a practicing defense attorney in Tampa, Fla., to shed some light on the surprising Supreme Court news.
What exactly did the court decide and why was it a surprise?
The opinion is a little more complex than your typical Supreme Court decision. There were two issues presented in the case. The first issue is whether the United States sentencing guidelines violate the Sixth Amendment to the Constitution, which is your right to a trial by jury. [Previous to this decision] you would get charged with a crime, you would get a jury trial with respect to whether you’re guilty of that crime, but then the actual sentence you received for committing that crime would be determined by a judge. And under the sentencing guidelines, the judge must increase your sentence if he finds to be true certain facts that were not presented to the jury.
So, for example, in a typical drug case, you may be charged with conspiracy to distribute cocaine. The amount of cocaine you distributed is not relevant for purposes of whether you are guilty of the crime. So all [the jury decides] is whether you distributed some amount of cocaine, ever. If the jury finds that you did, a judge will then decide — based on, frankly, hearsay and by a preponderance of the evidence, as opposed to admissible evidence beyond a reasonable doubt — what the quantity of cocaine was, and the quantity will drive the sentence.
So the first question is, is that OK, and a majority of five justices [Stevens, Scalia, Thomas, Souter and Ginsberg], in an opinion authored by Justice Stevens, said, “No, that sort of a process violates the Sixth Amendment.”
The second question presented in the case was what do we do about that? And most people anticipated that the court really had two options. The first option was to find that it’s really not possible to separate those parts of the statute that call for judge fact-finding and that violate the Sixth Amendment, and so as a result the alternative is just to find the entire statutory scheme unconstitutional and just wipe it out as a whole. That was one option that everybody thought they had.
A second option that I think everybody assumed that they had was to say this really is only unconstitutional as it is applied. There certainly are many cases in which there aren’t any upward adjustments [of the sentence] based on facts not found by a jury, and in those cases there really isn’t any problem, so there’s no need to wipe out the whole scheme. Instead, you could just basically say you can’t use those parts of the guidelines that call for upward adjustments without giving the jury a chance to be involved. You could put [the additional evidence] to a jury, which a lot of places were doing, or you could just not use it, which would result in quite a windfall for some defendants.
On the second issue, Stevens and three other justices from the majority on the first issue [Souter, Scalia and Thomas] opted for that second option: in other words, go ahead and put it to the jury, no problem. Justice Ginsberg, who joined Justice Stevens’ majority opinion on the first issue, broke ranks with that group with respect to the second issue.
In a pretty surprising and unpredicted move, a coalition of the four dissenting judges on the first issue [Breyer, Rehnquist, Kennedy and O'Connor] and Justice Ginsberg, in an opinion authored by Justice Breyer, answered Point 2 in a way that no one expected. And that is to ask the question: What would Congress have really wanted, had they known when they wrote this statute that parts of it would violate the Sixth Amendment? He concluded Congress would have wanted them to strike the parts of the guidelines that make them mandatory. And while he was at it, he also struck a part of the appeals provision, leaving behind an appeal remedy based on a standard of “reasonableness.” In other words, if an appeals court found that a given sentence was “unreasonable” they could overturn it. I don’t think anybody really expected that.
Is this a good or bad thing for defendants?
I don’t think there’s a lot in this case for the defense bar to complain about. Under Breyer’s remedy the harshness of the guidelines can be alleviated because some judges are going to say, “I’m just not going to do that.”
What does the “reasonableness” standard mean?
My best guess is it isn’t going to mean a lot. It would be pretty unusual for an appellate court to say that a particular sentence is unreasonable.
What does this mean then, practically speaking, for people who have cases moving through the federal system?
Cases fall into a bunch of different categories. For starters there are cases where people haven’t been charged, or they have been charged but they haven’t pled guilty yet. It’s now very difficult as an attorney to give such clients advice; it’s sort of like a return to the old days, where all you could tell your client is you could get as low as probation, or you could get as much as life. I can’t tell you which it is likely to be, I can only tell you that whatever it is we won’t really be able to complain about it much.
Some defendants may decide, in light of that uncertainty, that it’s in their interest to just go ahead and go to trial. So it’s at least possible that one effect could be more trials. And that’s going to depend a little bit on the reputations of the particular judges. There are going to be some judges who are going to react to this by saying, “Thank God, I’m finally rid of these guidelines, and I can sentence as I see fit.” And they may feel that way because they’ve always wanted to sentence higher, but more likely and statistically based, they’d be going, “Thank God, now I can actually impose more lenient sentences because these are too harsh.” There will be many other judges who will react to this by saying, “I’ve never really been thinking that what I’ve been doing all these years is all that wrong and I’m going to go ahead and follow the guidelines in most cases unless there is something about a particular case that just hits me wrong.”
So my sense is, at the end of the day, most people are probably going to be sentenced around the same point as before. It’s going to be the more marginal cases that really cry out for justice that maybe now finally will get it.
Now that’s for cases that haven’t been pled yet. What will be interesting to see is as follows: The government also will have lost some of their leverage, because they’ve always been able to entice people to cooperate with them and testify on their behalf against other people, because under the sentencing guidelines system, if they so much as tell the judge, “This particular person provided substantial assistance to us,” then the entire guidelines manual gets thrown out the window.
Prosecutors are going to lose some of their leverage. There is a provision in the rules that isn’t used very much now, that allows the prosecutor and defense to stipulate a specific sentence in a plea agreement. In other words I can enter into a deal that says I’m willing to plead guilty, and the government and defense agree that if I plead guilty, I get two years and three months in prison, and they put it to the judge and the judge can say up or down on that. A lot of judges don’t like those kind of agreements and won’t accept them on principle, because they want the discretion to do what they think is right after they hear about the case. The government has traditionally not liked to do that kind of thing either, because they just want to let the guidelines operate. Now that there’s a chance that people could get sentenced more leniently, it will be interesting to see if those kinds of agreements come back into vogue and whether prosecutors might think to themselves, I want to make sure the guy gets at least a year in jail or two years in jail, and they are willing to stipulate to that. And defendants might want that kind of agreement because it gives them a greater sense of certainty. But in general one could expect that there will be more trials, because it is less clear what the advantages are to pleading guilty.
Wednesday’s decision follows upon on a decision last summer, Blakely vs. Washington, in which the Supreme Court overturned Washington state’s sentencing guidelines. How does that affect the chances of defendants?
There are a bunch of cases where people were sentenced after Blakely and in which they objected to the guidelines citing the Blakely decision, and the judges overruled their objections, but they appealed and the appeal is pending. In situations like that where the issue has been raised, and it has been properly preserved for appeal, I would think virtually every one of those people will get a new sentencing hearing. So for sure there will be some people who will get a new sentencing hearing at which they get a new sentence. It’s just impossible to know how many people are in that category.
The big category that everyone is talking about is the people who have already been sentenced, but didn’t cite the Blakely decision in an appeal, or they were sentenced before Blakely and they don’t have an appeal pending. They’re sitting in jail, having been sentenced under a procedure that we now know was unconstitutional and they are going to want to bitch about it. There is going to be a flood of prisoner petitions that are going to start being filed. And the question is then going to be, does this opinion apply retroactively?
That’s a really complicated legal question. It turns essentially on how obvious was this result? If this case was just a straightforward application of existing precedent then it should be applied retroactively. And there are certainly parts of Stevens’ opinion that make it sound like, duh, this is just the same as we said in Apprendi vs. New Jersey and Blakely vs. Washington. It’s straightforward and ought to be applied retroactively. But there are other parts of Breyer’s remedial opinion that suggest that this is not going to be clear-cut and that this is novel and unprecedented, etc., etc., and so it should not be applied retroactively.
As a practical matter I’m kind of cynical and I think courts are unfortunately mindful of what the political results are of their rulings. And there will be tremendous political pressure on them not to apply this retroactively, just because of the floodgate of relief that would flow from that and the adverse public outcry: We’re letting people out of prison and whatnot. My prediction about what will happen — without regard to the legal merits of it — is that there will not be many people who get relief due to any sort of retroactive application of this decision. There are going to be a lot of petitions filed, but not too many of them granted.
How do you think this will play out politically?
It depends on the Republicans on the Senate Judiciary Committee. I think it will be very important what Arlen Specter thinks, because I think if history is any guide, the House is dominated by Republicans of a particularly anti-judge bent. They are already making noises about the opinion. They are hot. They are not going to want to let this state of affairs continue, and they are going to want to move, and probably want to move quickly.
But I think cooler minds may prevail on the Senate side. The Democrats on the Senate side have already come out and said let’s not rush to judgment here, let’s let this play out. I think their inclination is to say, let’s let the guidelines be advisory for awhile and see what happens. Maybe the judges will actually continue to follow them for the most part and maybe everything will work out just fine.
So the real question mark is, what will be the mood of Orrin Hatch or Arlen Specter? Are they going to be pressured by their more hotheaded friends in the House to act quickly, or will they be more willing to learn what we might be able to learn by allowing this system to be in place for a little while.
The real story here is just the incredible pissing match going on between Congress and the courts. It’s nasty, and the people who are going to get caught in the crossfire are the defendants. The Congress has basically said we don’t trust you judges. Breyer’s remedial opinion, as Scalia points out, is so ironic, because in the name of divining what Congress would have wanted with respect to its statute that eliminated judicial discretion, he went ahead and eliminated the part that made it mandatory.
They’re pretty rightfully pissed off. Breyer’s analysis that you get to excise out the part of the statue that makes it mandatory is unprecedented. That part of the statute doesn’t violate the Constitution. It isn’t the mandatory part that makes it unconstitutional, it’s the part that says you can do it without putting it to a jury that makes it unconstitutional. So what he did, which is so novel and so unprecedented and so frankly intellectually not compelling, is to rewrite the statute; in essence he said, “Rather than strike out the part of the statute that makes it unconstitutional, I’m going to strike a different part of the statute, that everybody agrees is constitutional so that the result of it will be to save those other parts of it that are unconstitutional.” That’s unprecedented, as far as I can tell.
But if the Supreme Court has declared that mandatorily making upward adjustments to a sentence violates the Sixth Amendment, what could Congress do in response? Isn’t the Supreme Court the law of the land?
Congress has a number of options. It’s still up to Congress to set the sentencing range, so they could pass a law that sets the top of every range at the maximum penalty. In other words, basically judges could give the maximum penalty for no reason at all. The ironic part is that that would end up giving judges discretion, which Congress doesn’t really want, but only at the high end, not at the lenient end. Or they could just set a whole bunch more mandatory minimums. Mandatory minimums have not been declared unconstitutional. They could release a blizzard of mandatory minimums for all sorts of crimes. I think this would turn out to be more trouble than they imagine, but they still could do it.
Best-case scenario, they could just come up with a much simpler version of the guidelines and require that they put them to the jury. But I don’t think that will happen.
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A photo contest winner
“In life many people have two faces. You think you know someone, but they are not always what they seem. You can’t always trust people. My hero would be someone who is trustworthy, honest and always has their heart in the right place.” Ateya Grade 9 @ Mirman Hayati School (Herat, Afghanistan)
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