Monday, April 25, 2005

The Plain Error Mess After Booker

Doug Berman on Sentencing Law & Policy has some interesting thoughts here (he has invited comments) on the conflicting plain error approaches of the circuit courts regarding sentences handed down before Booker in which defense lawyers did not have their crystal balls properly aligned to anticipate how to preserve a sentencing objection. Doug writes:

In some sense, the future development of plain error serves as an interesting test case for the true importance of national sentencing uniformity relative to other goals and interests.  Federal defendants are, because of the different circuit plain error rules, clearly receiving unequal justice in the wake of Booker.  But, though the consequences of unequal justice may be quite significant for individual defendants, the consequences may not be so profound for the entire system to merit Supreme Court correction.  (It is interesting to speculate whether and how other institutions, such as Congress or the US Sentencing Commission, might intervene to clean up the plain error mess.  But this would be pure academic speculation because, to my knowledge, neither body is inclined to address this issue in any way.)

In one sense, lamenting inconsistent plain error rulings is like complaining about the weather -- everyone does it because it's so unpredictable.  The four-step test for plain error adopted by the Supreme Court in Olano and Johnson gives circuit courts two outs, if you will, to avoid granting a remedy: the error must affect "substantial rights," an undefined category, and that error must affect the "fairness, integrity, or public reputation of judicial proceedings," which strikes me as something akin to the Chancellor's boot.  If you read enough plain error cases -- which is like plunging sharp needles into your eyes after a while -- one thing that becomes apparent is the aversion of circuit courts to granting new trials for errors that, while significant, should have been noticed and addressed much earlier in the process.  It is as if the defendant is punished for the sins of counsel who did not call the error to the lower court's attention earlier, and appellate court's just don't like to grant a drastic remedy in that situation except in egregious cases (how's that for a clear standard).

What makes the sentencing cases different, and one reason why the hard line taken by the Eleventh Circuit is so problematic, is that the remedy is quite modest compared to the usual case requiring a new trial.  The new sentencing proceeding could be as simple as a one line order from the district court: "Upon due consideration of all relevant evidence and circumstances, the prior sentence is affirmed."  No need even for the defendant to be present, and perhaps not even a round of briefing from the two sides.  Unlike other changes in constitutional interpretation that can result in convictions being overturned, Booker's revolutionary aspects are much more important for the future while the effect on past cases is not particularly drastic, at least with regard to requiring extensive new judicial proceedings.  (ph)

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