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.
Greedy Clerk (mail):
Stevens' dissent is one of the best opinions I have read in some time. My opinion of Stevens just goes up and up --- he manages to show why Justice Breyer's opinion is completely off-the-wall and, in my opinion, wacky. Stevens is able to do this, moreover, without any of the rude little cheap-shots that Scalia often takes when Scalia rips apart another's opinion (don't get me wrong, I am a big fan of Scalia's but Stevens has long since replaced him as my "favorite" justice).

Anyway, Prof. Kerr, I'd be interested in your opinion on why Ginsburg blinked on this. . . .
1.12.2005 1:46pm
Matt Barr (mail) (www):
IMO, the most well thought out, structured, reasoned and frankly convincing of the opinions is Mr. Justice Thomas', dissenting from the remedial majority and noting that the guidelines were unconstitutional as applied to Booker, and arguing that the Court should say so and be done, like they've done hundreds (probably) of times before, rather than taking black Sharpie to a mandatory sentencing law (the Court noted the guidelines had the force of law) and making it non-mandatory.

I have an idea for a homework assignment for Sen. Reid.
1.12.2005 1:48pm
I'm not always in agreement with Thomas, but I think he's hitting the nail on the head with this: the Guidelines themselves are not unconstitutional, it's the decision-making process involved without a jury or beyond a reasonable doubt. That is the fundamental thing that I never have understood about why the Guidelines are even at issue. IMO, the majority is using Blakely as an excuse to throw out these mandatory sentences. That has nothing to do with the Sixth Amendment. That is also what would make this opinion a mess if these opinions were to be implemented with logical consistency--which, of course, they won't. J. Breyer states in the first paragraph of his dissent that "[t]he Court holds that the Sixth Amendment requires a jury, not a judge, to find sentencing facts--facts about the way inwhich an offender committed the crime--where those facts would move an offender from lower to higher Guidelines ranges."

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.
1.12.2005 2:17pm
DJ (mail):
Forget about Booker. The truly interesting opinions today were the dueling Scalia-authored majority and the Thomas dissent in Clark v. Martinez. For those of you out there who have any interest in statutory interpretation theory -- and who have been bedeviled in the past trying to make sense of the so-called canon of avoidance -- Scalia and Thomas's spat makes for fascinating reading. As usual, Thomas's concerns should be taken very seriously.
1.12.2005 2:28pm
Whatever you may think of the new severability analysis invented by the Breyer majority, the remarkable thing about the "soft revolution" is that it is no revolution at all in practice. Despite the seemingly catastrophic impact of the application of Apprendi to the Federal Guidelines, Breyer has managed to preserve the practice and expectiontions of all of the parties who will deal with this on the front lines. The practice by prosecution, defense and probation office will remain as it always has been: to make their recommendations with the starting basis being the Guidelines range and any enhancements that the Guidelines afforded. The trial judge then will consider those recommendations and rule accordingly. Because sentences which are within the now "advisory" Guidelines range will be de facto "reasonable" under the new review standard, there is no point in appealing a sentence made in accordance with the Guidelines. The only sentences appealed will be those outside the range -- which is exactly what happened pre-Booker and Fanfan.

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.
1.12.2005 2:40pm
Eric Rasmusen (mail) (www):
Stevens and Breyer take 52 pages to generate a majority opinion. Adding in appendices and dissents, we get 124 pages. And in the end, an expert like Professor Kerr isn't completely sure what to make of it, except that it looks as if judges have more discretion now. Has that long opinion clarified the law? Doesn't look like it.

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?
1.12.2005 2:41pm
David M. Nieporent (www):
As usual, Scalia's comments are accurate but rude. Funny, to be sure -- as when he points out that all the amici ignored the Court's approach because they were posting from this side of the looking glass -- but rude.

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.
1.12.2005 2:46pm
Brooks H.:
These decisions are a lot to digest, but my quick read-through makes me think that Prosecutor is on the money that these decisions likely will affect sentencing practice only modestly. More to the point, Booker-Fanfan still seem to allow judges to engage in the same post-verdict and plea fact-finding as they previously did, because the declaration that the guidelines are advisory instead of mandatory eliminates the jury verdict-based guideline range as the mandatory maximum sentence for Sixth Amendment purposes. Of course, judges now may diverge from the Guidelines' advisements subject to reasonableness review, but I see nothing that prevents judges from engaging in the same extensive extra-jury fact-finding in determining sentences. Am I correct? If so, as an institutional matter, this decision does much more to empower judges rather than juries, as the Court would try to make us think.
1.12.2005 3:21pm
Dilan Esper (mail) (www):
It looks to me as though Ginsberg's vote created a result that applies Apprendi to the Guidelines while completely missing the point of Apprendi. The point is, JURIES are supposed to decide the facts that enhance sentences. Not trial judges, not the Sentencing Commission, and not appellate judges applying a "reasonableness" test. The result the Court reaches means that the Guidelines will still be out there, judges will still make factual findings that enhance the sentences, and Courts of Appeal will still uphold these sentences as "reasonable" even though the jury never found the facts that support the enhancement. How can this result possibly be consistent with Apprendi?
1.12.2005 4:02pm
If Blakely merely renders federal mandatory sentencing as guidelines, doesn't it then do the same thing at the state level?
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).
1.12.2005 4:39pm
Dilan’s argument that today’s opinion is inconsistent with Apprendi is based on an incomplete statement of the Apprendi rule. Apprendi does not require juries to find ALL facts that enhance a sentence but only those facts that enhance a sentence beyond the statutory maximum. Blakely clarified that the statutory maximum is the maximum sentence that the judge could lawfully impose based on facts found by a jury or admitted by the defendant. Under a mandatory guidelines system, the relevant maximum is defined by the Guidelines, i.e. the top of the range that the guidelines system authorizes based only on the facts found by the jury. But now that the guidelines are advisory, they no longer impose a statutory maximum in the Apprendi sense, because the judge can decide to disregard the guidelines and impose a higher sentence (subject to reasonableness or whatever the new standard is and the maximum penalty stated in the statute defining the crime of conviction). There is therefore no Apprendi problem with an advisory guidelines regime.

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.
1.12.2005 5:37pm
Dilan Esper (mail) (www):
Joe, the problem with that argument is that the sentences are reviewable for "resonableness" and "must" take into account the guidelines. Breyer is quite clear about this, in a mostly unclear opinion. (Of course, ensuring the continued relevance of the guidelines was Breyer's main goal in this case-- he co-wrote the guidelines and therefore had a conflict of interest and should have recused himself from hearing or deciding the case.)

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.
1.12.2005 7:03pm
Prosecutor states that the end sum of Booker is that those who want to save the guidelines win primarily because the the trial judge, prosecutor, defense and probation office will essentially play the same roles as they did pre-Booker. However, this assumes that judges will actually consider the recommendations and rule accordingly. Their willingness to rule accordingly will depend solely on the weight the judge gives to the possibility of being overruled on appeal. If the judge is willing to give little or no value to the chance that they may be overruled on appeal, then they may bypass the recommendation completely and go solely to the legislative minimums and maximums. This of course is what they did before the guidelines were heaved upon them. Why should we assume that they will even consider recommendations? It is hard to imagine that the carrot of automatically being upheld is going to create a situation where life tenured judges are self accepting the guideline schemata. More than likely, the people to win big is the defense counsel. With hardline judges the defense counsel can argue for the recommendation, as opposed to the statutory maximum. On the other hand, with softer judges the defense attorney can argue for the statutory minimum, as opposed to the recommendation. It is the best of both worlds for the defense attorney.
1.13.2005 1:25am
Nancy Ann Kirsch (mail):
Stumble, then rise, Eugene Moloch Volokh.
1.13.2005 2:25pm
Dilan Esper (mail) (www):
One other thing in response to Joe. In thinking about this a little more, I doubt that he is right that Breyer's remedy would be unanimously found to be constitutional if enacted by Congress. Specifically, Justice Scalia certainly doesn't think it is constitutional, because he characterizes the concept that the guidelines can survive as "recommendations", but MUST be considered by trial courts, with sentences being reviewed for reasonableness, as something straight out of "Alice's Adventures in Wonderland", because something that MUST be considered and which can form the basis of a finding of reversible error is NOT, by definition, a "recommendation".

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.
1.13.2005 2:59pm