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Sentencing Law and Policy
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The revenge of Breyer?

By Douglas Berman

The more I think about the Booker outcome, they more amazed I am that Justice Breyer found a way to win the federal sentencing battle despite having lost the Apprendi/Blakely war.  As one reporter put it to me, we might call the outcome “The revenge of Breyer.”  To echo again my new favorite song from The Who, the fitting Won’t Get Fooled Again, in a lot of cases for a lot of defendants the new federal guidelines boss (created by US Supreme Court Justice Breyer) may look a lot like the old guidelines boss (first created by then-US Sentencing Commissioner Judge Breyer).  For more explanation of this point, see my post The FSG are dead, long live the FSG!! 

That said, in some courtrooms and certain cases, a new advisory sentencing world may look a lot different than the old world.  Only time, and lots of litigation, will reveal the real impact of Justice Breyer’s remedial handiwork, which ultimately sets up a remarkable experiment in advisory guideline sentencing and creates the possibility of developing a (long-desired) purpose-driven “common law of sentencing.”  (Of course, we also have to wonder how long Congress might let such an experiment operate.) 

Personally ironic for me is that I think Justices Stevens, Scalia and Thomas have a much stronger legal argument on the remedy in Booker, and yet Justice Breyer’s opinion for the remedial majority creates by judicial fiat a system of sentencing that looks a lot more like the idealized guideline system that, I believe, early advocates of guideline reform sought.  For more on these point, see generally my early articles about the old mandatory system in A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STANFORD LAW & POLICY REVIEW 93 (1999) and Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 77 NOTRE DAME LAW REVIEW 21 (2000).)

As a last few thoughts for this post, I think it is appropriate and important to still view the federal sentencing story as the minor (headline-grabbing) battle in the broader jurisprudential war taking place on the Supreme Court.  By my read, Booker does not significant change the basic Blakely equation for the states (which is still where over 90% criminal cases are handled), although it does confirm that states cannot evade Blakely through “administrative guidelines” while they apparently can evade Blakely through “advisory guidelines” enforced by judicial review.  Thus, it seems likely states with guideline systems will continue to move toward Blakely-izing their systems to in fact give more effect and substance to the jury trial right.

In addition, it is also important to note that the broader jurisprudential war being waged within the Supreme Court will continue in the terms ahead.  Booker did nothing to clarify many of the critical questions that Blakely left in its wake, question such as the scope and application of the prior conviction exception (background here) or the nature of Blakely admissions (background here).  As I detailed in this post last month, states need more guidance on Blakely ASAP, and the only obvious message that comes from Booker for states is that the Supreme Court remains deeply divided on these issues.