The Indispensable Berman on Booker

The indispensable Doug Berman (of SLP fame and occasional guest-blogger with Prawfs) has recently posted on SSRN his latest article entitled Tweaking Booker:  Advisory Guidelines in the Federal System.  The piece is a contribution to (yet another) symposium on post-Booker sentencing law and policy, this one at the University of Houston.  Before I highlight the main points of Doug's piece, let me first warmly congratulate Doug on his recent appointment as William B. Saxbe Designated Professor at Ohio State, where Doug has taught for the last eight years.  It's a richly deserved honor, especially for someone who has made so many contributions to the field of sentencing law.   Moreover, in addition to his traditional scholarship, Doug's dogged and dispassionate work on his SLP blog has been instrumental in educating the rest of the academy as well as judges, journalists, and practitioners of new developments; in so doing, he has helped forge a robust community.

Doug's newest article effectively canvasses the origins and impact of Booker.  The heart of the article assesses three competing proposals vying for Congressional approval in the context of federal sentencing reform.   The first is a "topless" guidelines system, which is the preferred choice for the folks at the Department of Justice.  The second is a Blakely-ized system, which retains mandatory guidelines but adds jury fact-finding, per Blakely's mandate.   This approach is favored by many defense attorneys and others sympathetic to the majority opinion in Blakely, because it actually imposes, as Justice O'Connor put it, a constitutional tax on the government's prosecutions.   The third approach preserves the Booker remedy that rendered the Guidelines effectively advisory, though sentences are still subject to "unreasonableness" appellate review.  On balance, Doug favors the third approach. 

Nonetheless, he urges some tweaks to the current system that would best be made by the Sentencing Commission, which has, on Doug's view, failed to provide sufficient leadership in the wake of Booker.  Notwithstanding the title of the Article, these tweaks are made toward the end of the paper and thus are left ripe for further conversation.  So let me raise a few questions for conversation.

The first tweak Doug recommends is that the Commission needs to better focus the amount of prison time allotted under the Guidelines to repeat and violent offenders.   (Interestingly, a recent statistical survey found that 3/4ths of the federal sentencing population are non-violent offenders without a history of violence.)   This tweak might seem uncontroversial, at first blush.  (Indeed, I have elsewhere tried to justify alternatives to incarceration on retributivist grounds.) But Doug is a bit unclear about what it means to be "especially attentive to the distinctions between first-time non-violent offenders and repeat, violent offenders."   

What do we mean when we say we should distinguish first-time nonviolent offenders from repeat and violent offenders?   Although Doug certainly doesn't say that all first-time nonviolent offenders should be spared hard time in prison, I wonder if that's what some people think would be preferable.  Do we really want the Lays and Skillings of the world to simply get convicted, make restitution to the extent possible, and plant flowers as part of a community service project?   Do we really want no prison time at all for the folks who peddle cocaine or heroin (or Ecstasy) to our kids?  What about the perps who have large caches of kiddie porn stashed on their drives?

It's one thing to say, as Justice Kennedy declared three years ago, that federal sentences generally are too harsh and could stand reductions virtually across the board.  But how do we go about distinguishing between the first-time non-violent prisoners who should go to prison and those who should not?  Indeed, might it be the case that some repeat offenders who filch the occasional letter ( Shawn Gementera) or golf club (Gary Ewing ) are actually less culpable and less dangerous to society than the first-time offenders of Lay and Skilling, who culpably caused billions of dollars of losses?   Again, Doug's not committed to sparing all first time non-violent offenders from prison, but we need more guidance here regarding what the Commission should do in separating those who should be sent to prison and those who should not.   

Doug also inveighs against the Guidelines applied in today's federal courts because of their crude neglect of most offender characteristics, such as age or family ties and responsibilities.   Because the focus of the current system is on the offender's criminal history and the seriousness of the offense, Doug urges "the Commission, through its data collection and analysis, to seize the opportunity presented by Booker to reexamine how offender circumstances can and should be incorporated into federal guideline sentencing."

How might this recommendation cash out?  As Doug knows, the Commission did in fact consider these issues back in the 1980's and concluded that, in the main, these kinds of factors are either impermissible or discouraged reasons for departing downward from a Guidelines sentence.  So, it's not that the Commission hasn't considered mitigating offender characteristics.  Rather, the problem is that the Commission drew the wrong conclusion, at least according to Doug and the many district court judges and various critics of the Guidelines (like Utah's Erik Luna) who want more discretion for individuated punishment.   

Implicit in Doug's recommendation is the suggestion that the Commission's data collection and analysis ability will help resolve the essentially normative issues regarding whom to give punishment discounts.   But data doesn't tell us whether to give, say, offenders with children, a punishment discount. 

As to the merits of this precise issue, for the most part I disagree with Doug (and the district court judges who love having broader discretion) that offender characteristics should affect punishment distributions much more intensively.   Interested readers can see why here (at great length).   Importantly, and disturbingly, the disagreement over the degree to which offender characteristics should affect sentencing is now being played out in the advisory post-Booker regime, where some courts are indeed considering the characteristics of the offender more seriously, while other courts have been reluctant to "play legislature" (or "play Sentencing Commission").

Such fragmentation at the district court level causes (at least) two problems.  First, an offender's sentence will depend on the luck of the draw: did he get a judge who is willing to consider these offender characteristics (Judge Adelman?) or did he get a judge who presumptively follows the lead of the Guidelines (Judge Cassell?).   Second, assuming the offender gets the former, an individualizing type of judge, the offender may find that what mitigates a sentence from one set of eyes may lead another individualizing type of judge to extend the sentence beyond the Guidelines.   This dual form of disparity doesn't much worry Doug (at least in the draft).  He thinks district court judges will apply "reasoned judgment."

This faith, which I think is misplaced, does a lot to explain why Doug, along with many trial judges, generally prefer the advisory nature of the post- Booker federal guidelines.  Again, Doug thinks the Commission has a robust role to play in resolving disparity issues, even post- Booker.  But if one's committed to the essentials of the Booker remedy, then it's not clear (to me at least) what the Commission can do to resolve problems of unwarranted disparity--other than try to persuade judges to stick within the Guidelines unless there's a factor present that hasn't been contemplated earlier.   But judges in an advisory structure are under little obligation to do so, and so the tinkering the Commission can do is only on the margins, I suspect. (The appellate courts that review for unreasonableness, by contrast, have more power here.)

In a final suggested tweak, Doug also (correctly) urges the Sentencing Commission to alter the burden of proof in sentencing proceedings.  Currently, the Commission and a majority of the Court believe that a preponderance of the evidence suffices to establish sentence-enhancing "guideline" facts. For both constitutional and policy reasons, Berman softly pushes the "beyond a reasonable doubt" standard ("BRD") because "it is not fair or just to apply a civil standard of proof" to factual issues that entail "defined and potentially severe punishment consequences for a defendant."   I agree.  But, to my mind, it seems odd to embrace that position along with approval of Breyer's remedy in Booker, which, after all, centered on the putative desirability of letting judges continue to sentence offenders on the basis of their "real conduct," conduct never alleged or proved before the jury.  I can see how one can logically decouple a BRD requirement from whether non-charged conduct can enhance a sentence, but I imagine that once one is committed to a BRD standard, prosecutors will, in almost all tried cases, allege the facts to be proven BRD in the indictment and prove them before the jury-- since they'll rarely have an incentive to bifurcate issues over what effectively will become two trials, one for liability, and one for sentencing.   Most charges resolve themselves in pleas, of course, and as Doug notes, in that context, "the issue is what will the defendant admit or contest at the sentencing stage." 

The "real conduct" issue deserves greater attention too.  That the architect of the Booker remedy, Justice Breyer—who is, in most cases, ever the pragmatist—becomes, in the sentencing context, metaphysically obsessed with an offender's "real conduct" is passing strange.   For what is real conduct in a regime in which the Founders sought the use of juries except conduct that has either been admitted to or been included in the indictment and proved to be "real" beyond a reasonable doubt by a jury of one's peers?   But that has not been Breyer's understanding of real conduct; instead, that which is admitted to or proved BRD is merely(what might be called) "legal conduct." Given our regime's commitment to adjudications by rule of law (involving BRD and juries for criminal trial), I don't see how it can be appropriate to use anything aside from "legal conduct" to adjust one's punishment?  Breyer's reification of real conduct and concomitant denigration of "legal conduct (and what is truly "real conduct" in a rule of law regime,) in short, constitute two of the most dangerous encroachments upon the rule of law to have manifested in recent years.   And what makes the Booker remedy fundamentally untenable is that it continues to provide safe harbor for the imaginative fantasies of what really occurred under the rubric of real conduct.

If you share that view, steady yourself for sad days ahead.  As Doug shrewdly notes, none of the current stakeholders with power in the federal sentencing realm—the DOJ, the USSC, Congress, or the trial judges—have expressed an interest in fixing the federal scheme of sentencing in such a way as to be faithful to Blakely's commitment to jury fact-finding.   And Blakely's future itself will depend somewhat on what the two new Justices, Alito and Roberts, have to say.

If they were writing on a blank slate, Alito and Roberts, I'd guess, would have joined Scalia, Stevens, Ginsburg, and Thomas in Blakely.   But now that Booker's remedy has proven that the more things change, the more they look the same, I'd be surprised if Roberts would rock the boat, even if Alito would.  What that means is that Blakely will still be the constitutional law that states will have to grapple with, but that the Booker remedy will persist in the federal context such that the significance of a right to a trial by jury will be insistently eroded.   Thankfully, federal sentencing is only a small piece of the pie. 

The character of federal sentencing may well hinge on Alito and Roberts and their appetite for risk.  But a case that properly presents the issue of whether sentencing proceedings require proof beyond a reasonable doubt may soon arise.  My guess – and my hope – is that there are at least five votes for that proposition.