Wednesday, January 12, 2005

Initial Booker Musings for White Collar Cases

At the risk of speaking without thoroughly reviewing all the opinions (wading through Justice Scalia's attack, which includes a reference to "Wonderland," will have to wait), a couple initial impressions (with quotes).  For a more detailed (and learned) assessment of the decision, check out Doug Berman's postings at Sentencing Law & Policy:

1. Blakely (and Apprendi) are real, and the sentencing judge has significant discretion restored at this point in time.  According to Justice Stevens' opinion for the majority:

Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges; it is that circumstance that makes the Court's answer to the second question presented possible. For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.

The "defined range" is the key--will Congress constrain judges by imposing more mandatory  minimums, or for white collar crimes permit the government to prove a certain amount of loss (intended or actual) and impose a mandatory minimum?  Any number of state crimes are based on the value of an item (e.g. larceny of more than $1000 is a felony), and transporting that into the federal statutes is certainly possible.  While there are a number of mandatory minimums in the narcotics and weapons areas, there are none that I'm aware of in the more traditional white collar statutes: the fraud statutes (mail, wire, bank, insurance, securities), public corruption, and false statements/obstruction.  Of course, if Congress starts enacting a number of mandatory minimums, that will be the next issue the Court may revisit. Note also that prior convictions remain exempt from Blakely: "Accordingly, we reaffirm our holding in Apprendi: Any 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."

2. The standard of appellate review is now "reasonableness"--which drew Justice Scalia's Wonderland" attack--rather than the Feeney Amendment's de novo.  Justice Breyer's opinion states: "In other words, the text told appellate courts to determine whether the sentence 'is unreasonable' with regard to §3553(a). Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable."  This is not a constitutionally required standard, only what the statute is left with (sub silencio) after the Court excised the de novo standard.  Congress can certainly revisit the standard of review and give some guidance to the circuit courts on how to review potentially disparate sentences.

3.  Justice Breyer's opinion used inter alia a mail fraud hypothetical to show why the majority (namely Justice Ginsburg switching sides) rejected the requirement that all relevant aspects of a sentence be decided by the jury.  The opinion states:

Consider, too, a complex mail fraud conspiracy where a prosecutor may well be uncertain of the amount of harm and of the role each indicted individual played until after conviction--when the offenders may turn over financial records, when it becomes easier to determine who were the leaders and who the followers, when victim interviews are seen to be worth the time. In such a case the relation between the sentence and what actually occurred is likely to be considerably more distant under a system with a jury trial requirement patched onto it than it was even prior to the Sentencing Act, when judges routinely used information obtained after the verdict to decide upon a proper sentence.

This point is critically important. Congress' basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity. That uniformity does not consist simply of similar sentences for those convicted of violations of the same statute--a uniformity consistent with the dissenters' remedial approach. It consists, more importantly, of similar relationships between sentences and real conduct, relationships that Congress' sentencing statutes helped to advance and that JUSTICE STEVENS' approach would undermine.

Many recent indictments contain Blakely factors for the jury to decide, and the Enron Barge trial even included a Blakely phase to the sentencing.  While that is not constitutionally required, any inclusion of factual elements to increase a sentence (see #1 above) will have to be alleged in the indictment and proven at trial.  Under the sentencing advisory system, how much disparity will there be, and can the goal of uniformity be reached?

These are preliminary thoughts, and Booker will become a source of many judicial opinions plumbing its depths--pity the poor trees felled in its wake. (ph)

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Tracked on Jan 12, 2005 12:57:20 PM