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Wednesday, June 22, 2005

The Continuing Battle Over Blakely/Booker and the Sentencing Guidelines

In the wake of Blakely and Booker, which struck down the mandatory nature of the federal sentencing guidelines, numerous proposals have been offered to fix the constitutional problem with the guidelines.

Under the system favored by AG Alberto Gonzales, who announced his position yesterday,

judges would have to adhere only to the guideline minimum and not to a maximum punishment. Justice officials said they thought the move would pass constitutional muster with the court.

So far, the details of the proposal are somewhat less than clear.

The Sentencing Blog has the goods.

The continuing battle over criminal sentencing is of particular interest to me because it relates not to the political and ideological divide we generally associate with the Supreme Court, but rather to a different kind of divide: that between the judicial branch on the one hand and the legislative branch on the other. 

Each asserts that it is in the best institutional position to assess proper sentences in individual cases, and each takes professional and personal umbrage when the other impinges on its dominion.  This battle is far from over.

Posted by Hillel Levin on June 22, 2005 at 09:47 AM in Criminal Law | Permalink


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Funny you link to that today Hillel. Just this week I returned to my piece I started last summer after Blakely, which argues that there is a constitutional requirement to have Blakely-compliant determinate sentencing guidelines. I draw on the anti-arbitrariness provisions of the Constitution (the Fifth, Eighth and 14th Amendment jurisprudence) to launch this argument. So it seems to me that, based on what you excerpted, the Gonzales proposal wouldn't pass Markelian constitutional muster b/c it would leave too much room for the "shameful" and "unwarranted" disparities that gave rise to the SRA in 1984!

Posted by: Dan Markel | Jun 22, 2005 12:27:00 PM

Dan, I know where you are going with your paper. But please consider this. I support the idea of mandatory guidelines for the same reason you do: same crime, same punishment.

But it doesn't work that way. All that taking away discretion from the judge does is give the prosecutor more discretion. Remember that the prosecutor can charge the accused with anything she wants. Prosecutors in some places may be more "liberal" on sentencing issues than in others. (I have definitely seen this in practice.)

Or prosecutors may use charging as a method to extract information from the defendant (i.e. to strike a bargain). (We've all seen this in practice.)

I'm not saying that this is necessarily pernicious, but as a practical matter it means that similar crimes do not necessarily produce similar sentences--regardless of whether there are mandatory guidelines.

The question is this: would you rather have the judge have discretion or the prosecutor? My instincts lie with the judges. What the judges do is plain and obvious for everyone to see. Judges must justify their decisions, and while they are insulated from practical political consequences, they most certainly are not insulated from serious public and political criticism. In other words, we know what they are doing, and they hear from us. By contrast, who would ever know if one prosecutor offers more safety valves than another? Or if they undercharge defendants? Or overcharge?

Posted by: Hillel Levin | Jun 22, 2005 12:53:24 PM

Hillel, it's a good point, but there are ways of curbing prosecutorial discretion too, and this blog post is not the place where I'm going to begin that discussion...except to say that judges and victims, among others, can be brought in to make sure that bribes and sweet-heart deals don't corrupt prosecutorial judgment also.

Posted by: Dan Markel | Jun 22, 2005 3:40:10 PM

We aren't talking about bribes and sweatheart deals. We are talking about prosecutors with different philosophies charging similar crimes differently. I'm not suggesting that this is pernicious. In some cases, it may even be desirable. For instance, prosecutors in Brooklyn, who face a great deal of international drug trafficing, may have a very different idea of how to charge drug mules than prosecutors in, say, Omaha. In other cases, it might come down to a matter of prosecutorial philosophy (much like discrepancies in sentencing can be attributed to differences in judicial philosophy rather than pernicious deal-making). The point is simply that I haven't seen a workable system that actually gets at what you and I both want: similar sentencing for similar conduct. Given the choice, then, I'd have to preferance judicial discretion over prosecutorial discretion.

Posted by: Hillel Levin | Jun 22, 2005 3:50:55 PM

Why is this just a two-way discussion: judges vs. prosecutors? Doesn't the legislature have a say in this? In fact, doesn't the legislature have a political legitimacy with sentencing that lifetime-tenured judges and bureacratic prosecutors don't have?

Posted by: Mark | Jun 24, 2005 12:08:12 PM


I believe that perhaps you have misunderstood mine and Dan's position. We both agree, I think, that the legislature has a great deal of legitimacy in this area. That is, we both agree that criminal sentencing should be uniform, and that the most obvious way to achieve uniformity is through something like the mandatory sentencing guidelines (putting aside constitutional concerns with judicial fact-finding). And we both agree that it is institutionally legitimate for the legislature to play a role--the primary role, in fact--in determining proper sentencing.

Moreover, in the first instance, neither one of us much likes the idea of giving judges essentially unfettered discretion in determining appropriate sentences. The reason for our discomfort with this is that it makes sentencing non-uniform and heavily dependent on each judge's political, social, and philosophical beliefs. And in the end, two people who commit very similar wrongful acts might get very disparate treatment. We both think that's about thing.

What we are discussing is a separate question: When the sentencing guidelines are implemented, do they really achieve uniformity? Dan thinks that they do, or at least that they could. My argument is that they don't really. Why? Because the prosecutor has essentially unfettered discretion in determining how to charge someone--and it is the charges that lead to the sentence under the guidelines. Thus, while it is true that the judges' hands are tied, the prosecutors now wield enormous power in determining criminal sentences. And just as different judges have different philosophies, politics, and sociological views on the matter, so do different prosecutors. In other words, my view is that although the legislature certainly has a legitimate and central role in the process, at the end of the day, mine and Dan's concerns about uniformity are not effectively addressed by the federal sentencing guidelines.

Therefore, the choice is not between legislature, prosecutor, and judge. It is between prosecutor and judge. It is up to the legislature to decide who -- the judge or prosecutor -- gets the power over sentencing. Given that choice, I prefer judges; although I certainly believe that there is going to be a degree of power-sharing between the prosecutor and the judge under any regime.

We all agree that the legislature has a central role in this process. The question is only who the legislature should preference.

Posted by: Hillel Levin | Jun 24, 2005 12:22:59 PM

But doesn't the Ashcroft memo, if fully and successfully implemented (which I would argue it has been, for the most part), answer your concerns, Hillel? That memo requires the prosecuting US Attorney's Office to charge all readily provable conduct; if the US Attorney's Offices are complying with that requirement, then the charges should look fairly similar across the country. EDNY and Omaha should be charging mules the same way.

Also, under the guidelines, it's the conduct, not the charge, that leads to the sentence. I.e., a crime that could be charged as a false statement or as a mail fraud gets sentenced under the same section of the guidelines (2B1.1) regardless of how it's charged. The only issue would be if the prosecutor intentionally charged a crime that has a lower statutory max in order to tie the judge's hands, and that is very rare (as well as highly discouraged).

The problem is that in the wake of Booker, you have different judges in the same court applying very different sentences for almost identical conduct. Even under the system you describe (different sentences for drug mules in EDNY and Omaha), similar defendants in the same court should get similar sentences under a mandatory guildelines system; moreover, the Department as a whole is striving (perhaps you might debate the extent to which it is succeeding, though I think it has been quite successful) to impose uniformity across districts. But under the post-Booker reguime, defendants are experiencing very different justice in the same court. This is worse for a number of reasons, not least that defendants in the same jail are seeing their cellmates get different sentences for the same conduct. In addition, it is far easier to impose uniformity acorss US Attorney's offices, who all answer to the AG and DAG (and, eventually, the president who appointed them), than across federal district court judges, who answer to no one (unless you consider the "reasonable sentence" requirement set forth in Booker to actually limit judges' abilities to do [basically] whatever they want, which I don't).

Posted by: Anon | Jun 24, 2005 5:14:17 PM

I think Anon's points to Hillel start to gesture at the ways to cabin and canalize the discretion of the prosecutor, though they are only the beginning. I would note that uniformity is not exactly what I'm after, but equality...though I'm sure Hillel meant that. It's also important to point out that notwithstanding the Ashcroft memorandum, there was pre-Booker, authorization for extraordinary disparities between those who commit crimes in "fast-track" jurisdictions and those who don't. Another issue that caused lots of trouble was the varying degrees of willingness of the various prosecutors in different districts to write 5K letters. Booker accelerates the chaos in large measures.

Posted by: Dan Markel | Jun 26, 2005 11:36:55 PM

I'm intrigued by that somewhat cryptic response, Dan. It raises far more questions for me than answers. For example:

1) What would be some additional ways to "cabin and canalize" prosecutorial discretion?
1a) How would you envision those measures be imposed consistent with separation of powers if they are enforced by either the legislature or the judiciary and are not internal DOJ/ Executive branch initiatives?

2) In this context, how do uniformity and equality differ?
2a) If defendants receive uniform treatment for the same conduct, isn't that the same as receiving equal treatment?
2b) And shouldn't uniform/equal punishment for the same conduct be an important (I might even argue the most important) goal of both the prosecutor and the judge?
2c) The legislature's goal would then be to insure that that uniform/equal treatment is appropriate to the conduct, which it achieves by setting appropriate penalties, no?

3) When you discuss the "extraordinary" fast track sentencing disparities, what are you referring to, specifically? I've worked in both large and small USAO's, and I'm not sure exactly what you mean. If you're referring to the 4-point reduction that some illegal immigrants in exceptionally high-illegal immigration crime districts receive in their criminal immigration cases, then that is something that is very much the exception, not the rule (and I'm not sure that a 4-point reduction is "extraordinary," though I'm sure it was very important to the defendant who received it). My understanding of that reduction is that it applies in immigration cases only, not general criminal cases. But I am fortunate in not having worked in a classic "border" USAO, with all of the caseload problems that those offices encounter, so perhaps I don't have all of the information about those situations. In addition, if there are other disparities occurring in "fast track" jurisdictions, it would be interesting to know what those disparities are. (And, in fact, I'm not sure what a "fast track" jurisdiction is; I am familiar with the EDVA rocket docket, and with the fast track immigration situations described above -- is there some other kind of fast track jurisiction in the federal system? If so, I don't know what it is, and while I am not most experienced person around, I have worked in USAOs of widely varying size and type, and in multiple federal appellate circuits, so I don't think that such "fast track" jurisdictions are too common.) I can imagine some circumstances (perhaps the caseloads in some border districts would be such a circumstance) where the needs of the district outweigh the general imperative towards uniformity, but those should be the small exception, not the rule.

4) With respect to the 5k issue, while there is certainly some disparity in how those decisions are handled office to office, the current administration has imposed far more top-down uniformity/equality across USAO's in this area as well, which I certainly view as a positive development. Again, this is an internal USDOJ measure aimed at achieving greater uniformity/equality, though Congress and the Sentencing Commission could probably change the rules of 5k1.1 to foster greater uniformity in this area, though I haven't spent any time thinking about how that would work.

Posted by: Anon | Jun 27, 2005 10:48:27 AM


I don't understand the difference between uniformity and equality in this context. You seem to think there is a big distinction. Could you elaborate?


I don't agree with you about the Ashcroft memo. Two points:

1. I'm not sure you are right on the facts. That is, I just don't know whether the Ashcroft policy was implemented across the board (and if it wasn't implemented across the board, we don't achieve uniformity/equality). That's one of the problems with giving this power to prosecutors--there is no real way to measure what they are doing. That is, we can't really know whether they choose to undercharge on the amount of cocaine. Further, as I understand the Ashcroft memos, they leave plenty of wiggle room for prosecutors to operate as they see fit. The bottom line is that I just don't know what effect the memos had.

2. Assuming you are correct on the facts, I'd argue that they only prove my point. Ashcroft may achieve uniformity, which would be a good thing. What about Gonzales? And what happens if a democrat wins the White House: Would her appointee take the same position? I have no idea. The point is that the mandatory sentencing guidelines leave the issue to either individual prosecutors or to the justice department.

Finally, regarding your point about judges sentencing based on conduct rather than the charges under the guidelines, let's be honest: judges rarely sentence more strictly than the prosecutor asks. So again, it ultimately comes down to prosecutorial discretion.

I'm emphatically not arguing that prosecutorial discretion is inherently a bad thing. What may be right for the prosecutors in New York may not be right for the prosecutors in Kansas. But if one of our main priorities is to achieve uniformity/equality in sentencing, I'm not sure I agree that mandatory sentencing guidelines are the best way to achieve it.

Posted by: Hillel Levin | Jun 27, 2005 11:04:39 AM


1) Well, it's hard for me to judge whether I am right on the facts about the Ashcroft memo. All I can say is that I have worked in different USAOs since the memo was released, and that the two offices are very different in terms of size, political climate, geographic location, etc. And in both I have repeatedly heard the Ashcroft memo invoked as a basis for charging decisions and sentencing positions (i.e. "Is that position consistent with the Ashcroft memo?"). So it seems to me that it has had an important effect.

2) With respect to your other concern (what about under Gonzales, or under a new democratic administration), it's important to note that memos like the Ashcroft memo, which are typically released by either the AG or the DAG (meaning that you also get "Thompson" and "Comey" memos, referring to the most recent and current DAG's, Larry Thompson and Jim Comey), as I understand it, become enunciations of DOJ policy and remain in place until a new administration overrides them. So we still have Thornburgh memos dictating policy on certain issues, for example. In addition, the policies continue across party switches, which is why Reno and Gorelick memos and policies on how to treat the flow of information between intel and criminal investigation personnel were still in place on 9/11, even after a switch in administrations, and were the subject of much discussion during the 9/11 commission investigation. So, policies enunciated in an AG memo would remain in place until someone affirmatively changes them, which seems unlikely to me.

I think you're missing my point on the sentencing issue bewteen charges and conduct (which is a bit of a technical one). The guidelines only deal with conduct, not specific charges (except in very rare circumstances like the money-laundering provisions, where small enhancements are available if the defendant is convicted of certain crimes, e.g. 18 USC 1956 as opposed to 18 USC 1957). Therefore, the sentence for someone who is convicted of a $30k mail fraud should be the same as for someone who is convicted of a false statement resulting in $30k of loss. Both are sentenced under 2B1.1. Moreover, the judge is required to make factual findings to support every element of a sentence under the guidelines, so it's impossible for the judge to hand down a sentence without making explicit findings that support it. Often those factual issues are hard fought matters between the prosecution and defense, so it's incorrect to say that the power rests exclusively, or even primarily, with the prosecution -- the judge must make a factual decision to reach the end result. The loss of discretion under a mandatory guidelines regime occurs because once a judge has made a factual finding, he/she then has little discretion about the actual sentence. The actual finding, however, is fully within the judge's exclusive power. Moreover, the judge uses a pre-sentence investigation report prepared by probation (an arm of the court, not the prosecution) to aid in this process, as well as any factual hearings in open court necessary to resolving disputed issues. In their own investigation for the report, it is not uncommon for probation to find conduct of which the prosecution is unaware (additional victims, etc) which can lead to a higher sentence than the prosecution anticipated. Such occurrences are the exception, not the rule, but they are not uncommon either.

Finally, if we can agree that uniformity/equality is a good goal, you say that you're "not sure [you] agree that mandatory sentencing guidelines are the best way to achieve it." What would be some alternate suggestions? It is hard for me to think of many more successful systems off the top of my head, but I will admit that I have not spent much time considering alternatives. I will simply say that pre-Blakely and Booker, my experience was that under the mandatory guidelines system in the federal court system there was impressive uniformity within districts, and pretty significant uniformity across districts, especially considering the disparate geographic, demographic, and economic factors involved. Now, in the wake of Booker, there are wide disparities even within small districts. I can't conceive of that as anything but a significant negative development.

Posted by: Anon | Jun 27, 2005 1:46:24 PM


I appreciate the depth of your experience and thought. You certainly have more experience than I do in the USAO's, and so to some degree I will defer.

However, my own experience clerking for district and circuit judges is this: when the prosecutor charges someone with a drug crime (say, simple possession), but doesn't mention that the perp was carrying a gun at the time or that the person was actually caught in the act of making a sale, the district judge is unlikely to inquire into those facts. As for why the prosecutor would make such a decision, I can think of many many reasons--and in fact have witnessed precisely those kinds of decisions being made. And so, someone caught selling crack might not get the same treatment as another who had done the same thing.

I admit, though, that my experience came (for the most part) before the Ashcroft directives. And so perhaps things have changed, and under all circumstances people are charged (i.e. the fact stated to the judge) with the maximum. I defer to your expertise, but I note that there's no real way of judging whether this is happening, other than anecdotally. Which is exactly the point I made: we know what judges do because they must justify their findings in public proceedings. But prosecutors have no such duty. At most, they justify their decisions (to the extent they have to at all) to the AG. In other words, it is opaque to outsiders.

As for alternatives, I'm not sure. I don't want judges to have unfettered discretion; that's for certain. But I'm just not sure that the sentencing guidelines are the right way to go. You certainly gain SOME measure of uniformity, at least on the surface. But I don't think you get as much as you seem to think, or at least I don't think we can know. Pairing that uncertainty with the other costs of the guidelines may make the costs outweigh the benefits. In my opinion, of course.

Posted by: Hillel Levin | Jun 27, 2005 2:08:28 PM

Sorry for not being as engaged in this on the blog; it's because I'm dealing with these issues in the draft of the article I'm working on.
Anon, if you decide to uncloset yourself (to me personally), let me know, since I would love to have you as a reader/interlocutor for the piece.

Posted by: Dan Markel | Jun 27, 2005 2:17:13 PM

Hillel -- one last comment. It's important to note that the prosecutorial discretion issues you describe (how to deal with the presence of a gun at a drug deal and whether to charge a drug deal as a sale as opposed to mere possession) involve statutory charging decisions (whether to charge 18 USC 924c in the gun case, and choosing between 21 USC 841 and 21 USC 844 in the sale/possession case) which generally (always in the 924c case) implicate statutorily required mandatory minimum sentences. This is quite different than the Sentencing Guidelines as they were/are in effect in the federal system, which, as I mentioned in an earlier post, don't generally depend on the particular statute charged. In the wake of Apprendi, that is very, very different in the statutory mandatory minimum context. It's a fairly technical issue of federal criminal law, but it's fair to say that your concerns about prosecutorial discretion are far more relevant in those contexts (and that judge's powers are far more limited in the face of an indictment and subsequent conviction in those circumstances). I'm happy to discuss in greater detail how all of this works if you like, but can't quite bring myself to get into those fairly technical issues unless someone is really interested.

Dan, I appreciate the offer on your article, and will certainly consider the invite.

Posted by: Anon | Jun 28, 2005 10:52:34 AM

Thanks Anon. I'll consider the issue more closely in light of the information you've passed along.

Posted by: Hillel Levin | Jun 28, 2005 11:01:10 AM

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