Q. What is going on with federal sentencing? First I heard that Congress had made it very difficult for judges to mete out lenient sentences. Now I hear that the federal courts have decided that federal sentencing guidelines may be unconstitutional because judges are imposing sentences that are too harsh. What gives?

Answer:

Before 1986, federal judges were allowed a great deal of leeway in sentencing those convicted in their courts. The assumption was the judge was the most competent and experienced person to take into account any mitigating circumstances involved. In the early 1980s growing numbers of observers were concerned that equally culpable defendants convicted of identical crimes often received quite different sentences. Much of their alarm focused on sentences they believed were too light. Judicial leniency was viewed as one reason for rising crime rates.

In 1984, with broad bipartisan support Congress passed the Sentencing Reform Act.[1]

The Act established the United States Sentencing Commission and charged it with developing sentencing guidelines. The guidelines, the Act said, should be designed to avoid “unwarranted sentencing disparities among defendants with similar records…while maintaining sufficient flexibility to permit individualized sentences” where appropriate.

The Act required at least 3 of the 7 voting members on the Commission to be federal judges. There were two non-voting members: the U.S. Attorney General and the Chair of the U.S. Parole Commission.[2]

The Act reduced but did not eliminate judicial sentencing discretion. Judges could depart from the guidelines when the “court finds that there exists aggravating or mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines…” But judges who did so had to offer “the specific reason” they chose that path.

Along with the sentencing guidelines Congress imposed mandatory minimum sentences, largely for drug and weapons offenses, and for repeat offenders. Today over 60 criminal statutes contain mandatory minimum penalties applicable to federal crimes.[3]

Congress expected that mandatory minimums would be applied in all eligible cases, but as early as 1991 the Sentencing Commission recognized this was not occurring. The reason was simple. Some 95 percent of defendants plead guilty and waive their rights to a jury trial.[4] In these cases the prosecution alone determines the offense to which the defendant pleads guilty. Thus the sentences varied based on the prosecutors wide discretion regarding what offense to charge the defendant with. The Commission concluded that sentencing guidelines would more effectively ensure sentencing uniformity than mandatory minimums, which allow judges no discretion and grant too much power to prosecuting attorneys.

After 2000, several members of Congress and U.S. Attorney General John Ashcroft became concerned with what they perceived as a growing number of “downward departures” from the guidelines, that is, sentences more lenient than the guidelines recommended. In April 2003, Tom Feeney (R-FL) introduced an amendment to the House version of the PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today). The amendment was written by the Department of Justice.

The PROTECT Act was a legislative response to child kidnapping and sexual abuse. It instituted the “Amber Alert” program and increased the severity of mandatory sentences for offenses involving child pornography, sexual abuse and commercial sexual exploitation.

The Feeney Amendment significantly restricted federal judges’ ability to impose sentences outside of the guidelines. The amendment requires a district’s chief judge to submit a written explanation, with supporting documents such as the pre-sentencing report and plea agreement, to the Sentencing Commission within 30 days of a judge imposing a lenient sentence. Upon request, the Commission must pass along this data to the Justice Department and to the judiciary committees in both chambers of Congress.

The 1984 Sentencing Reform Act required the Sentencing Commission to consist of “at least” three judges, but for much of the time judges actually constituted a majority. The Feeney Amendment changes the minimum to a maximum by requiring that “not more than three” of the 7 members can be judges, ensuring that judges will be never again constitute a majority.

The amendment passed on a voice vote on the floor of the House and was inserted into the conference committee report. There were no hearings on the amendment.

The passage of the Feeney Amendment set off a firestorm of opposition by federal judges. Within days the 27-member Judicial Conference was urging Congress to overturn the amendment in part because the nation’s judiciary was neither given advanced warning nor offered the opportunity to comment. The Judicial Conference is chaired by the Chief Justice of the U.S. Supreme Court. The other members include the chief judges of the nation’s l3 Courts of Appeals, a district judge from each of the 12 geographic circuits and the chief judge of the Court of International Trade.

In December 2003 Chief Justice William Rehnquist, a Nixon appointee, warned Congress that the Act was “an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties.”[5]

In memoranda issued July 28 and September 22, 2003 Attorney General Ashcroft ordered 94 U.S. Attorneys around the country to request or agree to downward departures (sentences that are less than the minimum defined by the guidelines) only in “rare” circumstances in the future. Instead, the Attorney General ordered that prosecutors charge defendants with “the most serious, readily provable offense” in every case.[6] Moreover, attorneys should actively oppose downward departures in sentencing including appealing those that do occur.

In November 2003 the Ninth Circuit Court rejected the government’s appeal of a lenient sentence.[7] The Court held that the government’s appeal failed because it did not state a specific substantive basis for the objection. The U.S. Attorney’s office response revealed, perhaps unwittingly, the official policy and the local attorney’s perspective, “…it’s the policy of the United States Attorney’s Office to object to downward departures. I no longer have any discretion in making recommendations to the court with respect to downward departures. I am chafing under this bit but it is a bit that I cannot remove.”

In October 2003 the Sentencing Commission issued a detailed report on downward departures. It found that the proportion of cases falling below the sentencing guidelines had indeed increased from 19 percent in 1991 to 36 percent in 2001.[8] But the increase had occurred almost entirely in two categories. One was in the category of “substantial assistance departures” where the defendant agrees to actively help the government. The other, in the “non substantial assistance departures” category was a result of the enormous increase in the number of immigration cases and the need to dispose of them quickly.

The Commission found dramatic increases in the percentage of downward departures from the sentencing guidelines in the 5 southwest border districts, a result of the large number of immigration cases. In virtually all other districts the percentage of downward departures was stable or even declining.[9]

The Feeney Amendment has had a major impact on the federal judiciary. Opposition by the judges has taken many forms. At least two judges have resigned in protest. Brooklyn U.S. District Court Judge Jack Weinstein announced he would henceforth videotape all his sentencing hearings so when the government appeals a sentence the Appeals Court will be able to see the defendant and apply those “many tangible and intangible factors” that don’t appear in a transcript. Weinstein wrote, “The defendant’s words, his facial expressions, and body language, the severity of any infirmity, the depth of his family’s reliance, or the feebleness of his build cannot be accurately conveyed by a cold record.”[10]

In Minnesota, U.S. District Court Judge Paul Magnuson denied a motion for downward departure but angrily added, “The day of the downward departure is past. Congress and the Attorney General have instituted policies designed to intimidate and threaten judges into refusing to depart downward and those policies are working…The Court is intimidated, and the Court is scared to depart.”[11]

Judge Robert Patterson Jr. of the Southern District of New York granted a downward departure but warned, “If, as a result of Congress’ increasing pressure to eliminate any departures from the Guidelines, trial judges’ sentencing decisions do not comply with the basic tenets of fairness and justice, the confidence in our citizens that the courts play an independent and fair role in the dispensation of justice will be diminished or lost. Then our system of justice will be regarded as subservient to the other branches of government…”

In May 2003, at the urging of the Judicial Conference, Senator Ted Kennedy and Representative John Conyers introduced the JUDGES Act (Judicial Use of Discretion to Guarantee Equity in Sentencing). The Act would repeal certain provisions of the PROTECT Act that don’t have to do with child kidnapping and sex abuse. No progress has been made on that bill to date.

While Congress and the Justice Department have been concerned about downward departures, a Supreme Court decision in mid-2004 threatens the federal guidelines in cases involving upward departures. Here’s a brief background. In 2000 the Supreme Court ruled in Apprendi v. New Jersey that facts used to increase the penalty for a crime beyond the statutory maximum must be proved to a jury beyond a reasonable doubt.[12] The maximum sentence a judge may impose can be based only on the facts reflected in the jury verdict or admitted by the defendant.

Applying the Apprendi decision in a June 24, 2004 ruling (Blakely v. Washington), the Court found that a sentence based on facts beyond those admitted in the defendant’s plea (remember, in 95 percent of the cases the defendant pleads guilty) is unlawful even if the sentence falls within guidelines.[13] In Blakely the sentence imposed by the judge, based on facts presented in an evidentiary hearing, was less than the statutory maximum under Washington State sentencing guidelines. But it exceeded the standard range for the crime. The judge imposed this harsher sentenced based on facts beyond those the defendant admitted in his plea bargain. Writing for the 5-justice majority, Justice Scalia concluded, “every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.”

Justice Scalia asserted in the majority opinion that “the Federal Guidelines are not before us, and we express no opinion on them.” But Justice O’Connor, writing on behalf of the four dissenting justices, observed that the Blakely decision “casts constitutional doubt” over sentencing guidelines systems enacted by state and federal governments alike. The dissenting justices pointed out that the federal guidelines’ provision for upward departures is almost identical to the state of Washington’s sentencing guidelines overturned in Blakely.

An amicus brief filed by the Justice Department warned that if the Washington state guidelines were overturned the federal guidelines would be questioned as well because “facts other than the elements of the offense enter into almost all of the calculations under the Guidelines, beginning with the most basic calculations for determining the offender’s presumptive sentencing range.”[14]

The Blakely decision has thrown the entire federal sentencing guidelines into turmoil. Upwards departures from federal sentencing guidelines cannot be imposed unless it is based on facts that have been proved to a jury beyond a reasonable doubt. This means jury trials may require a second penalty-phase jury proceeding, because aggravating and mitigating circumstances often cannot be admitted in trial (lest they bias the jury). To this point only cases in which the death penalty could be imposed have gone before a sentencing jury.

This is the sentencing procedure in use in Kansas since a 2001 state Supreme Court ruling struck down the state’s previous sentencing guidelines with the same reasoning used in Blakely. The Kansas legislature passed a law requiring prosecutors to prove to the jury facts upon which a harsher sentence would be based, either as part of the main case or in a separate sentencing proceeding, if the defendant had not admitted to those facts in a plea bargain.[15]

But what works in state courts may not work in federal courts. Existing federal sentencing guidelines were thrown into question by a recent ruling by U.S. District Judge Paul Cassell. In one of the first post-Blakely rulings, Judge Cassell noted that a routine federal robbery case might require 20 separate sentencing determinations, ranging from what type of institution was robbed to whether guns were used or taken to whether the defendant abused a position of trust.[16] If juries rather than judges are to make sentencing decisions, he concluded, it requires substantial changes in the sentencing procedure that only Congress can bring about. Furthermore if the government is prohibited from seeking upward departures, then it would be “fundamentally unfair” to allow defendants to benefit from downward departures. Thus the court ruled the federal guidelines unconstitutional.

The Justice Department has developed a “Blakely waiver” under which the defendant agrees not to challenge the sentence as part of a plea bargain. Prosecutors are rushing to add aggravating factors to all pending and new indictments so they can be considered in sentencing. They have been urged to prove all the factors required for longer sentences as part of the main case, asking juror to complete special verdict forms reflecting their findings.

One possible resolution of the situation is for the existing federal guidelines to be redrafted with higher penalties. This would limit the need to prove aggravating factors while allowing judges to reduce sentences based on mitigating factors. In the current climate this is likely to lead to longer sentences.

Another possibility is to return to indeterminate sentencing, the situation before the 1980s. Judges could impose sentences anywhere within a possible range of, for example, zero to 20 years. Few people think it is a good idea to reintroduce the dangers of arbitrariness and discrimination in this way.

The US Supreme Court agreed in early August to hear two cases, beginning October 4th, its first day back in session after its summer recess. The cases, from Maine and Wisconsin, will resolve questions about whether the Court’s June 24 ruling that struck down the sentencing system in the state of Washington also means the federal system is unconstitutional.

The Maine case involves a thirty year old man convicted in federal court in Portland of cocaine trafficking and sentenced June 28 to 6 years in prison. Federal prosecutors had argued that the judge should have followed federal sentencing guidelines, which would have allowed him to consider evidence of the defendants involvement with crack cocaine that was never presented to jurors, resulting in a sentence of 15 to 19 years in prison. But the judge concluded that Blakely decision also applied to his case, and refused to triple the sentence based on factors that weren’t part of the jury’s verdict.

The second case involves a Wisconsin man convicted of distribution of cocaine “base” and sentenced to 30 years to life in prison. The Appeals Court for the Seventh Circuit in Chicago overturned Booker’s sentence, concluding it was unconstitutional after the Blakely ruling.