Carefully thinking through “sentencing chaos”

There is no question that, as noted here and here, sentencing in the federal system has been chaotic in the wake of Blakely. However, the amicus brief filed by the NAFD makes (at p. 2) this provocative (and I think accurate) statement about the chaos:

For those who practice criminal law in the federal courts every day, the only chaos has been caused not by applying Blakely to federal criminal cases, but rather by those trying to avoid its application or to force its reconsideration.

The whole NAFD brief seeks to document how the “requirements of Blakely are assimilated readily into the federal sentencing scheme, with little or no change to current statutes or rules.” Id. And district court decisions such as O’Daniel (discussed here and here) and Johns (discussed here), as well as the on-going cases detailed in the NAFD brief, certainly seem to back up the NAFD’s assertions.

As a thought experiment, it is fascinating to imagine what the last three post-Blakely months might have looked like if DOJ and the US Sentencing Commission had tried to make lemonade from what they thought was a Blakely lemon. Surely the multi-directional circuit splits noted here and the wild variations in district court practices would not have been as diverse and dramatic if DOJ was not pressing arguments that seem to fly in the face of Blakely‘s holding and express language. (Of course, the decision by DOJ to “Blakely-ize” indictments highlights it did have the good sense to “preserve” on-going federal cases even while arguing Blakely‘s inapplicability.)

Though allocating blame for the last three months is certainly fun, I am more concerned now with the future than the past. And my review of the respondents’ briefs in Booker and Fanfan have me convinced that chaos will continue to reign supreme if the SG prevails on its severability claims. I have highlighted before here and here and here various questions and concerns about the SG’s severability claims, and the respondents’ briefs only deepen these worries. I am hopeful, but not all that optimistic, that these questions and concerns will be addressed in the SG’s reply brief.

Most pressing now, in my mind, is some account by the SG of how advisory guideline sentencing is supposed to work. The Fanfan brief astutely notes that the SG “devotes some 23 pages to attacking jury factfinding [but] begins and ends its discussion of advisory Guidelines in just over one page.” Fanfan Brief at pp. 48-49. Even putting aside the initial critical questions of whether all or some cases get “advisory” treatment and what comes of all the Blakely-ized indictments, I am very curious as a matter of substance and procedure how advisory guideline sentencing is supposed to operate.

Here are just a few of the many questions I have about the operations of a guideline-advisory world:

1. What should a probation officer put in presentence report (PSR)? For the guidelines to truly be advisory, PSRs would still need to include guideline calculations (still based, I would assume, on both charged and uncharged facts that compell guideline enhancements). But, to aid a court exercising its (now unfettered) sentencing discretion, shouldn’t a PSR also cover a broad range of “offender” issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing? Recall that the SG asserts that still operative is 18 USC 3553(a), which mandates that a judge “impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of punishment specified in the Sentencing Reform Act. It seems that a lot of mitigating “offender” facts — which have been deemed “not relevant” or “not ordinarily relevant” by the Commission in its binding guidelines — would become very relevant if the guidelines became merely advisory.

2. What should prosecutors and defense counsel put in sentencing memoranda to the court? Would prosecutors and defense attorneys be able to contest, either factually or legally, aspects of the PSR’s advisory guideline determinations? Especially because these calculations might prove to be legally significant for Due Process/Ex Post Facto reasons, I would suspect that even advisory calculations might need to be heavily litigated (and perhaps subject to appeal, see point 4 below). And, in addition to raising issues about the shadow calculations, would prosecutors and defense attorneys then have separate sections in sentencing memoranda with arguments and recommendations concerning various “offender” issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent because binding guidelines declare them largely off limits?

3. What decision-making process must a sentencing court employ? Would a district judge have to resolve on the record factual disputes over advisory guideline calculation? Would departures still play a role at this stage — i.e., if a court would have departed (up or down) if the guidelines were binding, would that (possibly important but still hypothetical) decision need to be explained and justified on the record? When turning to the application of its discretion, would the court need to give a hearing to defendants interested in presenting evidence concerning various “offender” issues — e.g., family circumstances, drug dependency, lack of guidance as a youth? Again, recall that these offender issues arguably become legally significant to the extent a sentencing judge is required, pursuant to 18 USC 3553(a), to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of punishment specified in the Sentencing Reform Act.

4. What happens to and during appellate review? The SRA’s appellate review provision, 18 USC 3742, does provide for “plainly unreasonable” review when “there is no sentencing guideline.” What will that mean in a world with advisory guidelines, and how might Due Process and Ex Post Facto claims fit into this strange new world of appeals from advisory guidelines? Would a defendant be able to raise claims about a PSR’s or a district judge’s “advisory” guideline calculations? Will a defendant be able to argue simply that an imposed sentence, no matter how low as compared to the advisory guidelines, was still “greater than necessary” to comply with the purposes specified in the Sentencing Reform Act?

Because I am in the ivory tower and not “on the ground” with the courts and lawyers handing out 65,000 federal sentences per year, perhaps I am mistaken that the SG’s arguments raise all these challenging questions. (Indeed, I hope folks who are “on the ground” might use the comments to help me work through these issues.) But everything I have read is pointing me to the view that the SG’s arguments on severability will actually create more, not less, sentencing chaos. Of course, there is that ever-present worry that some defendants might get a “sentencing windfall,” SG brief at 68, but I will try to explain further tonight why even that concern may be something of a red herring.