Sheridan: Con-Law

BOOKER, BREYER & GINSBURG: DESTROYING THE VILLAGE IN ORDER TO LIBERATE IT.

Newsweek's Cliff Sloan, has an interesting comment  here, on U.S. v. Booker (2005), to the effect that Justice Stephen Breyer, who wrote the U.S. Sentencing Guidelines, had to kill them in order to save them.

The decision is a remarkable coup for Breyer. He played a key role in crafting the guidelines approach as chief counsel of the Senate Judiciary Committee in the 1970s and then as a member of the U.S. Sentencing Commission in the 1980s.  In a final irony, he had to kill the guidelines to save them. Breyer’s remedy opinion preserves the entire guidelines handiwork for judges, but at the cost of making them optional rather than mandatory.

He killed his baby, the Guidelines, by joining the majority that held them unconstitutional.  He joined in declaring that his own legal work was a violation of the Sixth Amendment right to jury trial.  Why?  Because he allowed punishment for facts not found true beyond a reasonable doubt by a jury.  He allowed judges to find facts to a preponderance standard. 

The defendant got sandbagged. 

He pled (guilty) to one thing and got hit with (punished for) another.

Breyer saved his baby, the Guidelines by crafting or joining a different majority willing to allow them to survive as advisory guidelines.  Optional.  Dealer's choice. 

Only now the judge is dealing, not the prosecutor. 

This is why Booker is huge.  It changes the courtroom furniture around.  No longer is the judge just the clerk, rubber-stamping sentences mandated by the DA's, make that the AUSA's, charging choices. 

No longer is the prosecutor the judge.  Things are back where they belong in court.

The defendants will keep being sent down to the Gulag, only perhaps a few of the more deserving will be spared. 

Win-win, as they say:  Judges have had their handcuffs removed for downward departures and avoidance of Guideline mandated minimum sentences.  They also have restored the chance to max out the truly deserving, meaning someone else's client, under the penal statute violated, unrestricted by the Guidelines.

It's back to the future, as Sloan remarks.

Or, as our friends the French (they did save our bacon during the Rev, after all) say with a Gallic shrug,

"The more things change, the more things stay the same."

Plus ca change, plus c-est la meme chose.

This remains red.  Do you want to know why?  Because I had to search for the full quote in French, to get it right.  And it was red where I lifted it.  From Pravda, actually.  Of course it's red, what else would it be?  Do you think I'm going into the HTML code just to eliminate the red?  Not today, thanks.

The Guidelines remain in effect to set the curve nevertheless. 

This leaves it up to opposing counsel to duke it out in battle fair to persuade the judge which way to jump:  up, down, or... stand pat.

As to the mysterious, in this case, Justice Ginsburg, Sloan hasn't too much light to shed, as she wrote no opinion, neither concurring nor dissenting.  She just joined both decisions in this double-barreled opinion:  Thumbs down for mandatory, and thumbs up for advisory.

This is having your cake and eating it, too, something we don't often see.

To cap off the unusual opinion, the sentenced defendant gets a second bite at the apple by appealing to the U.S. Court of Appeals for a review of alleged "unreasonableness" of sentence.

Unreasonableness may be an elastic standard but it is the underlying basis of our notion of basic fairness. 

Thus this appellate review feature sounds good, if avoiding disparate sentences is your goal.  The fear of having two bank robbers in the same cell for the same crime, one serving 5 and the other 25 years, was what drove the creation of the Guidelines in the first place.  It made the law look like an ass, not for the first time, one might add.  The remedy was worse than the disease.

The Guidelines were intended to be a major, wonderful, reform which nearly everyone hated precisely because of its mandatory features, which turned out to be draconian. 

Draco was the ancient Greek solon who prescribed death for everything.  We have people like that running around loose today.

Federal judges were resigning from the bench in principle:  they were refusing to participate in what even they knew were governmental injustices. 

Apparently federal judges were not fungible, in accord with former Alameda County District Attorney Lowell Jensen's observation when he took the federal bench.

And as for the Feeney Amendment and its so-called PROTECT Act, still more draconian nonsense become law, it's no longer relevant, according to Justice Breyer.  See the article here.

Incidentally, when I started out as a prosecutor in California in 1967, the Penal Code was a third the thickness as it is today.  We've piled law upon law.

Has there been a great improvement in public safety and security?

See Plus ca change..., supra.

Now we have more to consider and reject as inappropriate to the case at hand.

Your grandparents weren't exactly stupid, you know.

SENTENCING GUIDELINES NOW ADVISORY ONLY

Linda Greenhouse of the NYT has this report on the decision in the Sentencing Guidelines cases, Booker and Fanfan, issued today.  The combined cases are decided under the case-name U.S. v. Booker (No. 04-104.Argued October 4, 2004--Decided January 12, 2005). 

The case  received expedited treatment because of  the mess the Supeme Court created with its decision in Washington v. Blakely, last year.

That decision invalidated the sentencing scheme in the state of Washington, also based on a set of guidelines that were indistinguishable from the federal sentencing guidelines.  So when they went, the handwriting was on the wall.  Federal sentencing, to the tune of  60,000 per year, became subject to considerable confusion:  Were the U.S. Sentencing Guidelines, a two-inch thick prescription book consisting of recipes for going away for a long time to the federal pen, any good any more?   

It seemed pretty clear they weren't good any more and the smart bettors won yesterday, in principle. 

Crime still doesn't pay, however, except to lawyers and judges, so we'll have to see how the new advisory guidelines work in practice. 

One very bad aspect of the no-longer-mandatory guidelines, for criminal defendants or those thinking of going into the business, is that while there are no longer any bottom-limits on sentencing under the guidelines, there are no longer any ceilings either. 

If the federal anti-bank robbery statute prescribes a twenty-year maximum, but the guidelines set a much lower sliding scale based on other factors, Mr. Bank Robber is now looking at the twenty-year top.  He'll be begging for a Guideline sentence, as a matter of the federal judge's discretion. 

And the federal judge is apt to look down from that big bench and say, "Mr. Bank Robber, I know that under the old Guidelines I had to sentence you to no more than seven years in the federal penitentiary, but today, things have changed, and I can give you the full twenty, which I plan to do, like right now."

And wham.  Mr. Bank Robber sees no daylight for the next twenty years.  Which is what the public may think is fine-and-dandy, considering he's a bank robber and all.  But sometimes even bank robbers deserve a break.

I represented a bank robber once.  He was 6' 7" tall.  As he and his gang of frequent bank robbers ran from the bank they'd just robbed, an old-fashioned hue-and-cry went up.  "Stop, thief," and the like.  6' 7" is hard to miss.  He was chased down the block, tackled, and held for the police, by none other than an old-fashioned, umbrella carrying, young English man.  The rest of 'em got away.

When was the last time you heard of an English man tackling a band robber?  You're probably thinking of a bloke in a Savile Row suit and bowler hat, along with the umbrella, of course.

It turns out that the English man was married to a very attractive psychologist I consulted with on another case at the time and they came over for dinner one evening, where I learned how my bank robber got arrested.

The English man, before he fell in love with the pretty shrink, was SAS. 

That's the British Commando unit, the Special Air Services, known for eating raw meat for breakfast. 

Tackling bank robbers was just practice for this fellow.  The umbrella was stylistic, but it made a useful weapon, if needed. 

Fortunately for this bank robbing fellow, the FBI wanted his fellow bank robbers even more than they wanted Mr. 6' 7," so we made what we call "a deal." 

He did his civic duty, turned on the others, in the interests of justice, of course, and the FBI rolled up the really bad, other, bank robbers. 

Now it was time for me to do my lawyer thing. 

We went in to the federal judge's chambers, the AUSA, the US Probation Department officer, and I, to see whether the judge was in a forgiving mood.  He usually was pretty forgiving. 

He was good for giving five years here, ten years there...

So the prosecutor asks for ten years.

Ten years!?

For a guy who turned out to be your best witness?  Damn near your only witness? 

Talk about being double-crossed by your government. 

No wonder they need so much security downstairs before they let you near a federal courtroom. 

With justice like this being handed out, they need even more security.

That's an awful lot for a guy who flipped to become the FBI's and the AUSA's chief asset in rolling up the really bad guys, the other really bad guys, that is.  But, he did rob a bank, of course.  We mustn't overlook that little fact entirely.

So the judge looks at me.

"It seems to me, Your Honor, that a system which depends so much on getting people to cooperate with the government in the legitimate expectation of receiving favorable consideration at sentencing, such as ours, has a duty to honor its promise to provide that incentive, and in no stingy fashion, either, such as I'm seeing the government do here."

The judge gave him three years, what the case was worth.

We're a nation of snitches, despite the opprobrium. 

Anyone who commits a crime with anyone else is asking for more than the usual amount of trouble.  In this system, little fishes eat big fishes.  You always need a bigger fish to throw to the feds, or you're in deep water, indeed, under the Guidelines.  That was the only way to get the Holy Grail of federal sentencing:  a Downward Departure.  I guess this will change under Booker, now, too, and won't that be nice.  The AUSA no longer owns you.  You can ask the federal judge to depart downwards, as the federal prosecutor tears his hair out in protest.  It might be worth going back into federal court again.  You'll have something to say, for once.

The worst thing to have in prison is a "snitch jacket." 

Aside from being a child molester, that is.  Other prisoners have children and need someone to look down and pick on. 

Another time the bank downstairs from my office got robbed. 

Guess who got the call to represent the bank robber.

I was on the federal conflicts panel at the time.

I interviewed the alleged bank robber. 

He'd robbed my favorite teller, who told me how scared she'd been over getting robbed. 

Sorry, pal, seeya later.  You robbed my bank.

I conflicted out of the conflicts panel for that one.

Warren Richey of the Christian Science Monitor tells you more about Booker, here.

Bob Egelko, the San Francisco Chronicle's excellent legal affairs reporter, relates Booker to sentencing practices in California, here. 

He has a quote from Al Menaster, the LA Public Defender's Appellate Law expert, indicating the way he reads the new decision, that California judges will no longer be able to impose the aggravated sentence in our triple-tier range of sentences for each felony based on facts not found true beyond a reasonable doubt by the jury or the plea of guilty. 

Expect to see a fight over this.  There's news for ya.  Mid-term or mitigated are the remaining sentence choices, with the California judge bound to look first to the middle unless reason exists to jump up or down. 

It's the jumping-up part that has people upset. 

The California judge makes findings based on what the prosecution or probation department argues about how bad the defendant really is because he was the "leader" or there were signs of other bad activity, such as a trunkful of dope that the jury was not allowed to know about because of a bad search, etc.

It appears that the federal judges have finally have had their USSG handcuffs removed and can now impose sentence, with a bow to the Guidelines for advisory purposes, according to "the interests of justice."

Perhaps we'll no longer see federal judges resigning from the bench in protest at having to impose draconian sentences uncalled for by the rule of reason.  Or holding their noses while holding onto their paycheck while inflicting unjust sentences.  As in punishing not only for the weight of the LSD but the blotting paper it permeates, as well. 

Sentences will be reviewed for unreasonableness.  And federal judges will go back to being real judges instead of clerks and accountants applying guidelines points for this and that when they need to look at the overall picture instead of each tile in the mosaic. 

Sometimes a schlemiel who stands before the judge on sentencing day needs to be thrown a life-preserver by the court, instead of a cinder-block. The Guidelines were our national cinder-block. 

"The interests of justice" is our national life-preserver, however vague it may seem. 

In the end, we want mature people of judgment using their individual judgment in sentencing, not what Congress or a state legislature decreed for all back at the federal or state capitol building one day when the political winds were blowing strong from the south where it's hot.   

We call such admirable people "judges," and hope they live up to the billing, especially the ones with the lifetime lease on the robe and gavel.

Yes, "the interests of justice" is a vague standard, like "the best interests of the child" in Family Law cases, meaning no standard at all, but there are some times in life when, if one is drowning, one needs a standard-less life-ring.  We're all lifeguards, after all, and good lifeguards save the bad as well as the good when the long whistle blast blows signaling the need to go in after someone drowning in the legal seas.

The judge is our ultimate lifeguard at the legal shores.  It's about time s/he was allowed, again, after the twenty years since Mistretta, to toss the life-ring.

***

Al Menaster, resident appellate guru at the LA Public Defender's Office, has this comment on the alleged meaning of Booker as it may trickle down to the criminal courtroom trenches:

THE WEEK'S CASES: for the week ending January 14, 2005

by Al Menaster
   LA County Public Defender's Office

THE US SUPREMES FOLLOW BLAKELY WITH WHAT?

We finally get a case from the US Supremes following Blakely (124 S.Ct. 2531), and what do we get? 

Hard to tell.  There are two, count 'em, two majority opinions in this case.  In the first majority
opinion, the court strikes down the federal sentencing guidelines as being in violation of Blakely.  The guidelines require enhanced sentences based on facts not found by a jury, and are thus invalid. 

The Supremes restate Blakely in an expansive manner.  So far, so good.  The second opinion addresses how to remedy the defects in the federal sentencing guidelines.  Their solution is to rewrite the guidelines to make their provisions discretionary, not mandatory. 

Huh?  Where does that leave us in Cal.?  In the air.

So will the Cal. courts make the Determinate Sentencing Law (DSL) discretionary, so trial judges are free to impose any of the three sentences, so long as the sentence is reasonable?  Or will they require jury findings?  Or strike down the DSL itself?  Or find that Blakely doesn't apply to Cal. law so nothing changes? 

There is just no way to tell.

Until someone tells us what's going on, continue to object to all upper terms and consecutive sentences. 

Oh, and object to attempts to get the jury to find aggravators (there's lots in Booker to resist that).

U.S. v. Booker; 2005 DJ DAR 410; DJ, 1/13/05; US Supremes

***

Grace Suarez, a former deputy San Francisco Public Defender research and appellate specialist who has been boiling down complex opinions for years, has this perceptive (and modest) comment on the alleged meaning of Booker.

Here's what Grace has to say:

SENTENCING - BLAKELY AND THE FEDERAL SENTENCING GUIDELINES

United States v. Booker (2004) U.S. , 04-104 and United States v. Fanfan (2004) U.S., 04-105 (U.S. Sup. Court, 1/12/05)

[A] 124-page decision...

These cases have two majority opinions.

Stevens wrote the first part (the merits portion) (joined by Scalia, Souter, Thomas, and Ginsburg), which concluded that the Sixth Amendment as construed by Blakely v. Washington (2004) 542 U.S. ___, applies to the Federal Sentencing Guidelines because they are mandatory.

If they were advisory provisions, the Guidelines would not implicate the Sixth Amendment, because judges may exercise broad discretion in imposing a sentence within a statutory range. But "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (Slip opn., first part, p. 20.)

Breyer dissented in part, joined by Rehnquist, O'Connor and Kennedy, arguing that a mandatory Guidelines scheme is nevertheless constitutional. 

Justice Breyer wrote the second part (the remedial portion) (joined by Rehnquist, O'Connor, Kennedy, and Ginsburg) which concluded that the statute which makes the sentencing guidelines mandatory (18 U.S.C. sections 3553(b)(1)) and the section that provides for de novo appellate review of sentences outside the Guidelines (3742(e)), violate the Sixth Amendment and must be severed from the rest of the Sentencing Reform Act of 1984.

With this modification, the Guidelines are effectively advisory, requiring the court to consider Guidelines ranges (sec. 3553(a)(4)) but permitting it to tailor the sentence in light of other statutory concerns (sec. 3553(a)).

The decisions are binding on all cases that are currently on direct review. 

Stevens dissented in part (with Souter and Scalia (except for Part III and footnote 17)), arguing that the Court should not make the decision whether to excise the provisions.

Scalia and Thomas dissented in part, arguing that the Breyer opinion re-wrote the statutory scheme, especially in its imposition of an "unreasonableness" appellate review standard: "The worst feature of the scheme is that no one knows - and perhaps no one is meant to know - how advisory Guidelines and 'unreasonableness' review will function in practice."

Use Note:  it will be up to better minds than mine to figure out what the Court is saying in this overlong and confusing decision, but my first guess is that judges may now impose a sentence anywhere within the range prescribed by the offense, using any facts they choose (whether found by a jury or not), as long as the resulting sentence is "reasonable," but they are not bound by the Guidelines to impose a particular sentence.

-----------------------------------------------------------
Grace L. Suarez
Lawyer and Life Coach

***

My guess is that judges now will do what judges have always done, when functioning at their highest and best use of judgment, which is to use it within the confines of the statutory limits. 

We know that a sentence may not exceed the statutory maximum.  Sentences can be stacked, however, by running them consecutively.

Can a sentence exceed (go lower than) the statutory minimum?  Many California statutes say it can, sometimes, but only "in exceptional circumstances, in the interests of justice," provided the reason is stated for the record.

Can priors be stricken?

What about strikes?

Unless you happen to be the DA, or her strong supporter, you want the judge to have the discretionary power to strike priors, strikes, and other bad things in the interests of justice.  It's how you give youngsters or first offenders the break that may salvage their lives.  Sometimes people do shape up, when given a second chance, against all odds, and sometimes we, meaning society in general, would like to see that break given, whether society realizes it or not at the moment.

Avoidance of statutorily mandated minimums or add-ons (enhancements) is often done in practice.

This usually means the court will agree to strike or avoid an inconvenient provision prescribed by the Legislature in order to obtain a plea and avoid a long, chancy trial that interferes with some of the more important of life's exercises, such as lunch and golf.  This is most likely to occur when the DA says she's having problems with a witness who went South or is going sideways. 

Cautious judges make the DA sign on, to share the heat when they stick their necks out to take a chance on a defendant who burns them by committing a really bad act later that draws heaps of bad publicity, such as a judge who gave O.J. a seeming break, in retrospect, on a DV complaint made by the late Nicole Brown Simpson.

All that Booker does, as I see it, and it is plenty, is to remove the handcuffs from judges and re-entitle them to use their judgment.

You know that we have two kinds of people in the world of law:  clerks and judges.

A clerk is the person who, when you go in to file papers, finds that you failed to use the two-hole punch at the top of the original, and rejects the filing.  Or notices that the paper stock used was not recycled as the rules require.  Or you that you failed to file an extra copy for the judge's law clerk.  Like that.  You're standing there counting copies, yet again, along with the clerk, to make sure a copy  isn't missed.  You've brought along extra copies.

There's no sense trying to argue reason to a clerk.

Just borrow the two-hole punch.  They'll allow that.

A judge, on the other hand, will listen to reason.  A judge may not always buy the kind of reason you are selling, but most of them will at least hear you out, like the judge in "My Cousin Vinnie," who, when Abogado Vinnie objected to being surprised by the sudden, late, and not previously notified, calling of the FBI agent as a prosecution witness, replied:  Mr. Vinnie, You have made an intelligent, articulate, and legally proper objection. Denied.  Proceed, counsel.  This of course, sets up the calling of Mona Lisa Vito, Vinnie's fiance and automobile expert, the world's greatest witness, but that's not Booker, is it.  Too bad.

The best course of all, is not to have committed the crime in the first place, in which case you don't have all these issues, but tell that to the client.  And what would we do without them?  It's a funny world we live in.  But not funny enough...

***

Here's a thoughtful editorial from the Louisville, KY, Courier-Journal.

Edward Lazarus, former Supreme Court law clerk and author of the tell-all Closed Chambers, about the experience, later became a federal prosecutor.  He has this comment on Booker at Findlaw.