25 June 2004

The Massachusetts Ruling that Federal Sentencing Guidelines are Unconstitutional

Well, I read Blakely last night and don’t think it changes much in the Massachusetts opinion. It doesn’t hurt the district court judge’s decision and its affirmation that the jury is the only body which can decide facts determinative of the maximum sentence is in the same vein as the trial judge. However, it doesn’t really reach the core matter which the trial judge’s opinion hinges on.

The Massachusetts Opinion:


This ruling does not find the entirety of the federal sentencing requirements unconstitutional. Under this finding the base number which is assigned to a crime and the considerations of prior record which effect it are still held to be constitutional. All other factors which a judge can find that would otherwise cause an increase in the maximum sentence after a finding of guilt are unconstitutional and cannot be applied. However, the opinion seems to leave those factors which mitigate a sentence in place because case law allows a judge to determine factors which determine minimum allowable sentences.

The Core of the Opinion:

At it’s core this opinion is very simple. It separates the theory of the sentencing guidelines from the reality of the sentencing requirements. The theory is that they are guidelines the judiciary can depart from them in appropriate cases as determined by the judge. The reality is that they are requirements which were set in stone until the Feeney Amendment, when they became cast in steel. It is this dichotomy upon which the entire argument rises or falls.

Apprendi, Ring, and now Blakely do not care much about theory; rather, they are concerned with effect. The sentencing requirements are fixed such that, for all practical purposes, the judge cannot determine the sentence within the statutorily set out limit but only within the allowed sentencing range on the grid. Thus, the statutory limit has been superceded by the guideline range and it determines the maximum sentence. This having occurred Apprendi and its progeny attach to the sentencing requirements and there can be no increase to the maximum punishment range by judicial evidentiary findings except those proceeding from the Defendant’s prior record.

It’s a well argued thesis based upon the realities of the modern federal courthouse.


The judge goes on to make his disagreement with Mistretta fairly plain and seems to be of the opinion that post-Feeney, the constitutionality of the shift of power from the judiciary to the executive branch embodied in the guidelines badly needs to be reviewed by the Supreme Court with a firm eye on the reality of the criminal justice system. There is a long section discussing whether the Sentencing Commission does or should have the powers granted it by Congress (Congress cannot delegate powers not allotted to it under the constitution). Much of this could have been shorn away to make his actual argument stronger.

ETC. Relevant:

Three portions of the bric-a-brac seem relevant.

First, the judge opines that the federal sentencing requirements strongly detract from the right to a jury trial (the important underlying consideration in Apprendi analysis).

Second, the judge discusses why he raises this argument sua sponte. He is convinced that under the current system Defendants dare not raise such claims because they must cowtow to the prosecution in order to gain any crumbs the prosecutor might throw their way.

Third, he discusses options to remedy the constitutional error. The first is bifurcated jury trials wherein the sentencing factors are decided by the jury in the post conviction session. The second, which the judge adopts, is to sentence only based upon the points for the offense as modified by the Defendant’s prior record.



As much as I like the opinion and believe the federal sentencing guidelines to be plainly constitutionally wrong I doubt the opinion’s viability. This is a very close issue but I see two problems with the Court’s analysis.

(1) The trial court seems to assume that Feeney and the sentencing requirements set an equal barrier to departures upward and downward; one would hope for such logical consistency. Nevertheless, if Feeney set a concrete floor but left a ceiling made of straw this opinion falters because courts can decide factors which determine minimum punishments. Although I’ve not researched the matter, I’d bet good money that upward departures have survived at a much higher rate and received more favorable appellate language. This is just a reality of any appellate court handling criminal appeals. All departures may start with the same standard but when a trial judge departs upward for someone who has been convicted of three sexual torture killings the appellate court is going to have to be dragged kicking and screaming to a reversal; if it can find a reason to uphold the trial court it will. On the other hand, when someone is convicted of dealing in crack cocaine and the judge departs downward the appellate court is not going to be as inclined to defer to the trial court. This is just human nature and (lest we forget) judges are human too.

I know that upward departures occur. Within the last few months an employee of the City of Richmond received an upward departure for stealing from the city (the feds seem to charge one member or another of the Richmond government every three months or so). So I’m not sure that the maximum punishment argument will stand up to scrutiny.

(2) I’m not sure the appellate courts will recognize the trial judge’s ability to raise this issue sua sponte. As a matter of fact, I think there is a strong chance that the appellate court will use this as an excuse to punt and refuse to accept the trial judge’s opinion because it was not something argued in a case. The trial court shows a reality based belief that the system will not allow defendants to make this argument. However, appellate courts are one step away from the trail court experience and seem to most often consist of those who have had no experience at all in the criminal justice system (or at least no Defense experience). Without any real world knowledge, the view from the appellate bench does not always represent reality.


The potential out of this opinion depends on how strong the courts believe the jury system should be. The common moving force behind the decisions in Apprendi, Ring, and Blakely is the primacy of the jury. If viewed through this lens the sentencing requirements are a disaster which foreclose a jury for all but a desperate or stubborn few. Assuming that 95% of the cases stay underneath the maximum set by the guidelines can that 5% departure upward be enough to salvage the constitutionality of the entire system? If we truly believed in jury trials it should not.


That’s my snapshot view of a 176 page decision. Much is missing and/or extremely simplified. I strongly recommend reading the section which outlines how the federal judicial system actually works and the Apprendi argument.

[Addendum] Per the helpful comment below, I quote this from an 8th Circuit dissent:
Since May of 2000, the government appealed twenty-five cases in which the district court reduced the defendant’s sentence. Of those, our court reversed the district court twenty-three times, and affirmed only twice.

When it comes to cases in which the district court increased the defendant’s sentence, one would expect to see a similar pattern of reversals, inasmuch as we have employed similar standards of review for both upward and downward adjustments and departures. Unfortunately, that is not the case. Since May of 2000, we were presented with appeals from forty-six upward departures. Of those, we reversed only two, and affirmed the other forty-four.

In other words, during the same three year period that our court was consistently reversing shorter sentences, we were consistently affirming longer ones. It is difficult for me to reconcile this contrast, and I am deeply concerned with the trend and the message it sends to district courts–that more severe sentences are far more likely to withstand appellate review.
If that's the view from the 8th I can only imagine the 4th or 5th. That would seem to confirm my worries that courts have already refused to impose the same standard to an upward departure as they have a downward.

1 comment:

Anonymous said...

For an empirical examination of the reversal rate of upward departures versus downward departures by the Eighth Circuit, see Judge Heaney’s dissenting opinion in United States v. Yirkosky, 338 F.3d 936, 942-44 (8th Cir. 2003). Available at http://www.ca8.uscourts.gov/tmp/021176.html