Lawyer asks law profs: “Looking for a chance to persuade the courts that man-mins are unconstitutional?”
Earlier this year I started to correspond with Caleb Mason concerning his effort to preserve a sentence imposed below a federal mandatory minimum in the face of a government appeal. I suggested to Caleb that he write up an account of the case and his pitch for amicus help. Here is the pitch:
Join my case as amici! I was appointed by the Ninth Circuit in a CJA (Criminal Justice Act) case to defend a below-man-min sentence against the Government’s appeal. I argued in my brief that man-mins are straight-up unconstitutional under Booker. The vast majority of man-min cases out there involve a district judge reluctantly imposing the sentence with an opinion saying how much he or she hates doing so. The defendant appeals, but there’s not much for the Court of Appeals to do. My case is the opposite — it’s the rare one in which the judge actually imposed a sentence below the man-min, and we’re asking the Court of Appeals to affirm it. Judge Manuel Real, who at age 95 is on full active status (he won’t even take senior status), has the courage of his convictions when it comes to man-mins.
In this case (a CP case with a small number of images, no other bad conduct, a very sympathetic defendant history, and a demonstrated commitment to rehabilitation), Judge Real explained that 48 months was enough custody time, despite the 60-month man-min, because of lifetime s/r. My brief (which can be downloaded below) argues that mandatory minimums are unconstitutional under Booker. Here is the main issue statement:
Issue 1: Statutory mandatory minimum sentences are unconstitutional.
Caselaw of this Court is to the contrary, but Mr. Lavinsky preserves his arguments for review by an en banc panel of this Court and by the Supreme Court. Statutory mandatory minimum sentences are unconstitutional because they violate the constitutional imperative of separation of powers. Fashioning an individual sentence based on the facts of an individual case is a quintessential judicial power. The Court’s decision in United States v. Booker, 543 U.S. 220 (2005), should apply equally to statutory mandatory minimums as to mandatory Sentencing Guidelines, because the animating principle in Booker is separation of powers, and the mandatory guidelines that Booker rendered advisory had, per Mistretta v. United States, 488 U.S. 361 (1989), the same legislative authority as statutory provisions in the United States Code. Additionally, the history of sentencing practices in the United States shows that the proliferation of statutory mandatory minimum sentences is an anomaly, and is inconsistent with both historical practice and historical understanding of the separation of powers.
For Booker fans (I should note that I went to the Booker oral argument; I wasn’t yet a member of the Supreme Court bar, so I arrived at 11 p.m. the night before and waited on the sidewalk all night like an animal…), this case is a nice, clean opportunity to make the argument that Doug made immediately after Booker, and that has long been apparent to those of us who have been trying to understand what’s happening in federal sentencing over the last decade: Booker is about preserving the inherent constitutional power of judges. It’s not about juries. It’s never been about juries. It could have been about juries, if Justice Ginsburg had stuck with the merits majority for the remedial opinion. But she didn’t, and we have a remedial majority that rejects out of hand the “jury factfinding” option for sentencing — which would have been not just the right answer but arguably the only answer if the merits opinion were really animated by the jury trial right. (And of course, Booker applies to defendants pleading guilty as well, which it wouldn’t if it was a purely jury-trial right.)
Anyway, my argument is simple. Booker held mandatory guidelines to be unconstitutional. Under Mistretta, each mandatory guideline was nothing more or less than a little man-min, with the same force of law as a statutory man-min written directly in Title 18. Thus, if the guidelines had to be made advisory to preserve their constitutionality, then so should man-mins. Read the brief (available below) — I think this is a decent and reasonably original argument.
Second, I argue that to the extent that Booker invalidating the SRA (in particular its mandatory aspects), it restored judicial power to the pre-SRA status quo which, I argue, included an understood background power (whether inherent or under pre-SRA statutory law) to sentence below a specified minimum.
I was thinking that we’d get a quick memorandum from the panel, and then gear up for an en banc petition and cert petition. But the panel just set the case for argument on February 16. So that’ll be fun. And it’d be great if one or more of the judges indicated that he or she thinks the full court ought to consider this issue.
I’ve been bugging Doug about putting together an academic amicus brief on the legal reasons why courts should hold man-mins unconstitutional. I know there are a hundred people out there who can articulate the arguments better than me, and who probably have clever arguments I haven’t thought of. So to you eggheads that think you have opinions about sentencing but never set foot in a courtroom: This is your chance! Do it! Write something someone will read! And a court, no less.
Someone besides me needs to organize and write the amicus brief. If anyone is willing to do that, I’ll help with contacting signers, and finding counsel for amici in the Ninth Circuit and Supreme Court. Please contact me [cmason @ brownwhitelaw.com] with any questions.