Initial Reaction to Booker/Fanfan Majority Opinions:
I have now worked my way through the majority opinions in Booker/Fanfan; while I'm sure I'll have a better picture after I read the rest of the opinions, in the interests of timeliness I thought a quick and tentative post now might be of interest.
The basic picture is that the Apprendi Five held to apply Blakely to the guidelines, but that Justice Ginsburg balked at the idea of foisting all of Blakely's implications on Congress and either forcing Congress to stick with it (highly unlikely) or make them rewrite the law immediately. She was willing to take a softer approach: Blakely applies, rendering the entire Federal Sentencing Guidelines advisory and non-binding, with the caveat that the Feeney Amendment's de novo review of upward departures is gone and replaced with a general reasonableness appellate standard of review for sentencing decisions. The four Blakely dissenters were willing to go along with this softer view, at least in light of the Apprendi Five's decision to apply Blakely to the federal guidelines. Thus Justice Breyer writes the second half of Booker/Fanfan ruling that the Guidelines are now advisory, not binding law, and that sentencing decisions are to be reviewed by appellate courts under a reasonableness standard.
What to make of this? In the end, Justice Ginsburg's switch led to the Justices imposing a soft revolution in sentencing law instead of an aggressive one. Blakely remains the law: the Court has adhered to its view that all sentencing schemes must comply with the Apprendi Five's preferred elements-analysis approach to the Sixth Amendment. But the Justices won't impose on Congress the vision driving at least some of the Apprendi Five (and embraced by many of Blakely's academic supporters) that the Court can force the system to bolster defendant's rights by simply tacking on a set of jury trial rights onto the existing guidelines system. The Blakely revolution is here to stay, but the Court isn't going to impose its specific substantive vision on an unwilling Congress.
This is all just a very tentative reaction. More (and hopefully better) analysis later. In the meantime, I'll enable comments.
The basic picture is that the Apprendi Five held to apply Blakely to the guidelines, but that Justice Ginsburg balked at the idea of foisting all of Blakely's implications on Congress and either forcing Congress to stick with it (highly unlikely) or make them rewrite the law immediately. She was willing to take a softer approach: Blakely applies, rendering the entire Federal Sentencing Guidelines advisory and non-binding, with the caveat that the Feeney Amendment's de novo review of upward departures is gone and replaced with a general reasonableness appellate standard of review for sentencing decisions. The four Blakely dissenters were willing to go along with this softer view, at least in light of the Apprendi Five's decision to apply Blakely to the federal guidelines. Thus Justice Breyer writes the second half of Booker/Fanfan ruling that the Guidelines are now advisory, not binding law, and that sentencing decisions are to be reviewed by appellate courts under a reasonableness standard.
What to make of this? In the end, Justice Ginsburg's switch led to the Justices imposing a soft revolution in sentencing law instead of an aggressive one. Blakely remains the law: the Court has adhered to its view that all sentencing schemes must comply with the Apprendi Five's preferred elements-analysis approach to the Sixth Amendment. But the Justices won't impose on Congress the vision driving at least some of the Apprendi Five (and embraced by many of Blakely's academic supporters) that the Court can force the system to bolster defendant's rights by simply tacking on a set of jury trial rights onto the existing guidelines system. The Blakely revolution is here to stay, but the Court isn't going to impose its specific substantive vision on an unwilling Congress.
This is all just a very tentative reaction. More (and hopefully better) analysis later. In the meantime, I'll enable comments.
Related Posts (on one page):
- The Blakely Revolution, Justice Scalia, and the Living Constitution:
- Implementing Blakely and Remedies for Structural Rules:
- Initial Reaction to Booker/Fanfan Majority Opinions:
Anyway, Prof. Kerr, I'd be interested in your opinion on why Ginsburg blinked on this. . . .
I have an idea for a homework assignment for Sen. Reid.
Does anyone know exactly what Breyer means here? Surely that does not mean that all the new factors in a presentence report have to go to a jury.
There will be some adjustment time as some defendants in the early days of Booker will over-value their chances of getting 0-6 months perhaps and will now seek a trial, whereas before they may have been more eager to plea under the prior regime. But the "advisory" guideines still has many enticements for the defendant to come to an agreement. Moreover, there will be many instances where the prosecutor and defendant can come to an agreement about joint recommendations regarding certain enhancements or departures-- a practice that was regularly used even under the old scheme -- from which a trial court rarely disagrees.
In the end, those who wanted to save the Guidelines win.
Here we have further evidence that the Court is not so much a college of experts as a legislature of people with differing policy views, assisted by an intelligent but inexperienced staff. Would an elected Supreme Court do worse?
Thomas's were even better, though. Without trying to slap Breyer in the face, he got the point across that this decision makes no sense. The mandatory nature of the guidelines is fine; it's the lack of jury involvement that's the problem. So they address the wrong issue, and in so doing manage to ignore completely the purpose of the guidelines.
If not, why shouldn't Blakely force Congress to revise standards? They can simply require that all information that prosecutors wish to use for sentencing must be presented to the jury in a sentencing recommendation phase, wherein the jury is presented the evidence to be used for sentencing and reports to the judge what evidence should be used in that determination based on the view of the jury (requiring unanimity for the inclusion of factors beyond the basis of the conviction).
The dissenters from the “remedial majority” do not claim that the new regime violates Apprendi. Their argument is that it was for Congress, rather than the Court, to structure a “fix.” If Congress actually created the advisory guidelines regime that the remedial majority has imposed, I don’t think any of the justices would say that the regime violates the Sixth Amendment.
So the trial judge MUST start with the guideline sentence, and may only depart if the departure is reasonable. That means that the guideline sentence DOES set the mandatory minimum and maximum unless a "reasonable" sentence lies outside the guidelines. Then, the upward departures from that range are based on facts found by the trial judge, not the jury. I simply do not see how that is consistent with Apprendi.
Breyer's opinion reduces a constitutional requirement of jury fact-finding to nothing more than a question of standard of review. Judges can do all the fact-finding they want, including to support an enhancement above the maximum sentence, as long as their work is reviewed for reasonableness and not de novo. That is simply not what Apprendi was about.
Given that, I don't see how Scalia would find the Breyer remedy constitutional if enacted by Congress. He's saying that it's just enhancement of maximum sentences by another name.