Sunday, January 16, 2005

Peter Goldberger on Booker

Peter Goldberger on Booker

Peter Goldberger, NACDL member and criminal defense attorney, always has profound comments on legal issues. He has agreed to share his take on Booker on this list below:

"Booker decided (in the Stevens-drafted part of the majority opinion) that *because* the statute as enacted by Congress in 1984 *requires* (in 18 USC 3553(b)(1)) that a judge impose a sentence within the guidelines unless additional facts are found by the court, and requires the applicable guideline range to be determined and thus increased, enhancement by enhancement, on the basis of non-jury factfinding, the Sentencing Reform Act (not the guidelines themselves, as such) is unconstitutional.

"The Court then turned to remedy. In the Breyer-drafted part of the majority opinion the Court applies severance analysis to determine that the proper judicial remedy for this unconstitutionality is not to strike down the entire statutory scheme (and guidelines), and is not to engraft additional protective procedures onto the present scheme (jury trial of guideline enhancements), but rather to "excise" the particular provisions of the statute which it found to create the unconstitutionality -- 3553(b)(1)(which makes a guideline sentence mandatory unless a departure can be justified on the basis of judicial factfinding) and 3742(e) (which sets forth the strict standards of appellate review). The Court determined that the remaining portions of the Sentencing Reform Act could remain intact and function as a sensible sentencing system that would most nearly achieve the purposes of the 1984 Congress which enacted the statute.

"As a result, Booker (by virture of Justice Breyer's part of the majority opinion) leaves in place, as the binding law of federal sentencing, principally section 3553(a) of title 18 (as well as section 3553(c) and section 3742(f), most importantly). That means that the judge, at sentencing, is obligated to impose the sentence which is "sufficient but not greater than necessary" to achieve the broad social purposes of sentencing described in section 3553(a)(2). As an aid to selecting that sentence, the judge is obligated to "consider" about half a dozen different things, #4 of which (3553(a)(4)) is the applicable guideline range and #5 of which ((a)(5) is the Commission's policy statements, which includes the Commission's opinions about grounds for "departure"). That's the only place, and the only extent, to which the guidelines come into play, although they do come into play at that stage and must be "considered." The judge is also supposed to consider all sorts of other more traditional things as well, such as -- and note these considerations are *separate* from consideration of the guidelines -- "the nature of the offense" and the "history and characteristics of the offender" and "the need to avoid unwarranted disparities". The sentence which is minimally sufficient to serve its public purposes is what the law demands now, and the statute makes quite clear that this sentence is *not* necessarily or even presumptively a guideline sentence. The guidelines have *not* been made "advisory" in the sense of being the sole reference point or even the beginning point for the judge's exercise of discretion. However, once the guideline sentence is made non-mandatory, as under this result, the top of that range no longer meets the Blakely definition of a "statutory maximum," so it is *not* unconstitutional to calculate that "advisory" guideline on the basis of facts not found by the jury. Thus does the clever Justice Breyer save his baby, the Guidelines, from a bathwater fate."

-- Peter Goldberger, Ardmore, PA

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