Thursday, January 13, 2005

Revisiting Booker (Already)

In my post on the three Supreme Court cases handed down yesterday, I wrote regarding Booker v. US:
"I'm not an expert...but I do dislike federal sentencing guidelines. So until I read the opinion closely...I'll call this a victory."

I may have spoke too soon. While I still haven't managed to read the opinion yet, it has come under A LOT of fire from the left. UNC Law Prof Eric Muller is happy to see the guidelines go, but caveats:
"I find myself wondering, though, about the impact on trial judges. If I'm right about appellate review, and the appellate courts are now more or less out of the business of reviewing guideline applications under any sort of even moderately rigorous standard of review, then the guidelines themselves might come to occupy the space of a sort of strange quasi-law. This will leave trial judges enormous discretion to use or abuse the guidelines to reach or avoid reaching desired or undesired sentencing outcomes without concern for correction. I hope I'm wrong about this, and that the result of today's decision will be more, rather than less, responsible trial court sentencing. But on this question, I think, the jury is (so to speak) out."

He continues in this vein in this post as well. Basically, he thinks that with the guidelines "advisory" but not "mandatory," defendants will have almost no grounds on which to challenge their sentences on appeal. What are they supposed to argue: that the trial court wasn't "advised" enough?

Dana Mulhaser argues that the ruling could give juries more power without giving them any more information. Since juries aren't told what their rulings mean in terms of sentencing (IE, they don't know the difference, in terms of punishment, between manslaughter and 2nd degree murder), if Congress decides to have juries rule on every aggravating question of fact (one way in which congress could get around Booker), then the result could be more harsher sentences in cases where the jury feels leniency should be in order--exactly the opposite of what liberals want.

Finally, Publius at the Legal Fiction blog argues that giving "discretion" to judges is a bad idea if what we want is fairer sentences. He argues:
"One of the recurring debates in law is about 'bright lines' versus 'standards' (or discretion). Your tendency to adopt one over the other is a function of the level of your trust (or distrust) of the official who will be making decisions. For example, the Warren Court distrusted state governments and especially local police in the context of protecting civil liberties (and you cannot divorce their jurisprudence from the civil rights struggle around them). They believed, rightly, that Alabama sheriffs would never protect the constitutional rights of black people. So, they adopted bright-line rules such as the exclusionary rule or Miranda warnings. If you cross these lines (e.g., if you don't give Miranda warnings), the defendant goes free. There is no discretion.
Fast forward to yesterday's decision. The real question you must answer before deciding whether to support the Guidelines is how much you trust judges in the context of sentencing. A lot of people, quite reasonably, believe that it's impossible to devise a just sentencing regime ex ante. Given the great diversity of factual situations, it's best to give judges a wide statutory range and leave the actual sentencing decision to their discretion. If John Kerry had appointed the entire federal judiciary, then maybe I would be a bit more likely to trust them. But progressives need to remember that the federal judiciary is overwhelmingly Republican and very anti-criminal...

It's more than a partisan concern. When the Guidelines were adopted, there was overwhelming evidence that criminal sentences varied along racial and class lines. The length of the sentences imposed by the Guidelines (especially gun and drug crimes) may be unjust, but they're not unfair. Everyone gets screwed equally. Yes, tossing the Guidelines will, at times, allow progressive judges to remedy some of the insanely long sentences that get issued for small amounts of drugs or gun possession (any Second Amendment-ers out there with me on this one? Brett?) But Booker will unfetter the Federalist Society too. And the Federalist Society, which fancies itself the guardian of classical liberalism, doesn't much care for criminals and really doesn't much care for the Fourth Amendment. It's just as possible that a lot of people will get increased sentences now that the Guidelines are gone."

I think he makes a good point, but I'm inclined to disagree for a few reasons.

First of all, with sentence guidelines as high as they are, right now the requirement is essentially the same as what conservative judges would give if they wanted to throw the book at defendants. How are they possibly going to go HIGHER if given discretion than what they already have been doing (maybe they'll give first time drug possessors the death penalty. That'll deter 'em!). Sure, there are some cases where judges might have liked to do an upward departure. But the Feeney amendment, which governed judges conduct on upward vs. downward departures, was much more lenient on judges who go up than go down. The fact remains there are both few instances where judges would want to issue tougher sentences but were precluded by the guidelines, and far fewer obstacles in the previous system that would block them from upward departures if they really were so inclined.

Second, I disagree with his claim that the system screws everyone over equally. That just isn't true. Not every criminal who gets 15 years for possessing ammunition is getting "screwed," some very much deserve it. But 15 years for an ex-felon who finds one bullet in his house and puts it in a drawer (sub. only, here via Proquest or here for Blog de Novo's summary)? They aren't getting "equally screwed;" one is getting far more screwed than the other. The whole problem is that while the sentence guidelines provide adequate punishments for certain crimes, they are wildly off base for others, because every crime is different.

That dovetails nicely with my third objection: I am inherently skeptical of one-size-fits-all rules in criminal law. The problem with hard rules is that they ignore or suppress context. Richard Delgado and Jean Stefancic note that
"Normative highly fact-sensitive, which means that adding even one new fact can change intuition radically. For example, imagine a youth convicted of a serious crime. One's first response may be to urge severe punishment. But add one fact--he was seen laughing as he walked away from the scene--and one's intuition changes: Even more serious punishment now seems appropriate. But add another fact--he is mentally impaired or he was abused as a child--and now leniency seems in order." [Critical Race Theory: The Cutting Edge, xvii-xvii]

While guidelines can accommodate for some of these facts (via mitigating and aggravating factors, for example), the problem is that there are infinite combinations and permutations of facts that might surround even one type of crime. The idea that the legislature might be able to account for ALL of them in advance (much less how they interplay with each other) is a vain hope, but people can observe the relevant facts and relationships in individual situations and judge accordingly. The problem, as Publius points out, is that individuals might also add in subconscious class and/or racial biases to the process. But all that means is that there must be a renewed emphasis on rectifying those problems at the appellate level. Saying "some people will get screwed, so let's screw everybody" is not, in my view, a moral answer to the problem.

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