The Supremes Speak on the Guidelines - Finally

A wise man once sang: "There's a big difference between kneeling down and bending over." Since June of last year, a lot of us in the criminal defense community have been kneeling down, praying (figuratively, of course) for the Supreme Court to deliver some "blessed relief" from the harshness of the Federal Sentencing Guidelines. Unfortunately, it looks like we've been bent over instead.

The Supremes today handed down their decision in US v. Booker, in which they considered the applicability of Blakely v. Washington to the Federal Sentencing Guidelines. In one of the weirdest decisions I have seen, the Court first held that Blakely does apply to the Guidelines, but then turned around and basically eviscerated the effect of applying Blakely in the first place.

A little background first. Blakely, which I wrote about back in June, reinforced the holding of Apprendi that any fact that increases a defendant's statutory maximum sentence must be proven to a jury beyond reasonable doubt. The real shocker of Blakely was its definition of "statutory maximum" to include mandatory sentencing guideline ranges. That changed the long-held perception that Apprendi did not apply to the Federal Sentencing Guidelines. Blakely set the federal criminal practice on its ear, and the Supremes quickly picked two cases to hear to resolve the question of whether Blakely impacted federal practice. After months of waiting, the Court announced its ruling today.

First, a 5-4 majority held that Blakely applied to the Guidelines. The Court rejected the (IMHO fairly weak) arguments of the Government that tried to distinguish between the Guidelines and the state system struck down in Blakely. Therefore, the Sixth Amendment required that any fact increasing a statutory maximum sentence, including Guideline ranges, must be found by a jury. Most prognosticators figured that the Court would come to that conclusion.

However, a different 5-4 majority, did not require that district courts go forth and require juries to find facts to support each potential Guidelines sentence enhancement. Instead, the Court held that Congress would not have intended such a system because it would essentially do away with the "real conduct" (aka "relevant conduct") setup that was essential to the system. Instead, the Court simply excised from the relevant statute any requirement that district courts sentence defendants within a Guideline range. To put it simply, the Guidelines became merely advisory, rather than binding. Sentences can still be appealed, and will be reviewed under a not too well defined "reasonableness" standard.

In practical terms, I think we're back to 1983, before the Guidelines were created. Judges regain a significant amount of discretion in imposing sentences. The Guidelines must (Breyer's word) be consulted, but it's unclear how much influence they should have or whether the traditional Guidelines judicial factfinding will still take place. There is still some appellate review, potentially more than in the "good old days," but exactly how much is anybody's guess. In fact, after a first read of the decision, I think the new power brokers in federal sentencing will be the Circuit Courts of Appeals. If they tightly define "reasonableness" in terms of Guideline ranges, not much will change. On the other hand, if "reasonableness" means basically that district court's have free reign in sentencing as long as they justify it, things will be quite different.

On the whole, I don't see this as a great victory for defendants. The grand terms of Stevens's opinion, which elevates substantive rights over practical expediency, are pretty much gutted by Breyer's. I'm not sure how our district judges will take to their newly found discretion, but I'm not confident that the Fourth Circuit will allow the system to work in a way that's very beneficial to defendants.

What I fear is that a system similar to what exists now with supervised release revocation proceedings. Every federal prisoner is placed on supervised release, which is sort of like probation, after they are released from prison. If they violate the terms of that release, they go back to prison, sometimes for longer than their original sentence. There are Guidelines for supervised release revocations, but several Circuits, including the Fourth, long ago concluded that they are not binding on district courts when imposing sentence. As a result, at least in the SDWV, judges almost always impose a harsher sentence than the Guidelines recommend (but still within the statutory range). I can see the same thing happening with run-of-the-mill sentencings in a post-Booker world.

Seven months ago, I had high hopes that the system might actually be reformed in a way to make it more fair and just to all those who are exposed to it. Now I'm not so sure.

For more interesting discussion of Booker, there are lots of posts over on Sentencing Law and Policy (props to Prof Berman for being the clearinhouse for Blakely/Booker info) and this interesting one at The Volokh Conspiracy (I think I agree with Prosecutor, sadly).