As Jeralyn Merritt, a defense attorney who runs the liberal talkleft.com noted
quote: It's all very nice and good to argue these cases in the abstract, as professors and law students, but the reality is, that criminal defense attorneys see the inequities of the guidelines on a daily basis. The jury finds X but the defendant gets sentenced for X + Y because of an argument the prosecutor makes to the judge, after the trial, where the burden of proof is reduced and where the rules of evidence aren't applicable. Ashcroft today held a news conference and said, essentially, the guidelines are necessary because they have made the crime rate go down because they send the message that you shouldn't do the crime if you can't do the time.
No one is arguing defendants shouldn't be held accountable for their conduct. It's another thing entirely to double or triple their time based on arguments the jury never hears and the prosecution is allowed to establish by hearsay and speculation.
My prediction: Blakely will be held to apply to the guidelines. If the prosecution is seeking an increase based on additonal facts, there will be need to be a second phase of the trial, where the jury is presented with facts, subject to the rules of Evidence, which the prosecution must establish beyond a reasonable doubt. That's the Constitution, that was our system until 1987 when the Guidelines came in, and since 1987, some defendant somewhere has gotten screwed by the Guidelines every day. Enough.
Dagonee, I know you are heading towards being a prosecutor. What are your thoughts on this in general and particularly in contrast to Mr. Merritt's?
posted
There are two questions - the constitutionality of the guidelines and the soundness of the policy.
Blakely was 5-4, with a very strange mix of justices on each side. There is one key difference between the Blakely and federal guidelines, and that is that the guidelines are not statutory, they are regulations. Why does this matter? It may not. But, it is possible that, as long as the guidelines specify maximum penalties no greater than the statutory maximums, this will not be seen as depriving the defendant of the right to grand jury indictment and trial by jury.
By making the sentencing factors statutory, Washington state basically created elements of the crimes; these elements need to be found beyond a reasonable doubt in order to be taken into account at sentencing.
There's a colorable argument that the basic elements found in federal criminal statutes are all that need be found by a jury. The elements in the non-statutory sentencing guidelines could be construed as something other than elements of the offense. Ironically, this would be based on the theory that elements must be statutorily defined. These not being statutes would mean they aren't elements.
It's hard to see how they would reach this conclusion, but the majority was so thin that it's definitely possible.
From a policy standpoint, federal sentencing guidelines were originally created to end disparity in sentencing, including racial disparity. There are two competing policy concerns with sentencing: that sentences for similar crimes be similar, and that judges maintain discretion so that special cases can be dealt with justly.
These two concerns are competing - providing discretion guarantees that the disparity in sentences will increase. Lowering disparity decreases discretion. The only way to handle both is to somehow predict every single possible factor that could justify departing from the normal sentence and putting down hard and fast rules for each possible combination - an impossible task.
I'm not sure what the right balance is. Most federal crimes (over 98%) get plead out, the average sentence is much longer than the average state sentence, and most federal sentences are fully served. People definitely get screwed by the guidelines. But avoiding that screwing opens the door for disparity in sentencing again.
With lifetime-appointed judges, the disparity is harder to fix, too.
Don't pay too much attention to the predictions made based on the questions asked by Justices. These can be an indication, but are never safe as a predictive measure.
One item I forgot to mention last night is the problem for defendants if the guidelines are scrapped. Several of the guidelines relate to the suffering of the victim or the "excessive cruelty" of the defendant. Traditionally, these items are not presented to the jury in great detail because they are obviously prejudicial. No defense attorney wants the jury to here that the victim suffered great pain for 12 hours before dying. Currently this can often be kept out or minimized because the pain is not relevant to the issue of the defendant's acts or state of mind.
However, if excessive cruelty is now an element that must be included in the indictment and proved to the jury, the judge cannot easily keep this evidence out.
As several of my links indicated, and you seem to indicate as well, Ashcroft supports guidelines because they result in increased prison sentences. I understand what you're saying, that it's a mixed bag with several issues, and that it could sometimes hurt the defendant, but overall, guidelines and after-the-trial sentencing doesn't seem to be very 'fair' to the defendant.
I am going to guess that the guidelines probably help push up that 98% plea bargain rate, too.
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posted
Absolutely, although the plea rate wasn't much lower before that. Here's what I think the biggest problem is: Someone can always find a horror story with a murderer getting no jail time to support the guidelines, and someone can always find a horror story about some guy selling a joint and going away for 30 years to oppose the guidelines.
We saw the same thing with the 3 strikes laws. They were inspired because some guy with two assaults with a deadly weapon served half his time and then killed a little kid. But once they were passed, we saw the guy go to prison for life for stealing a bicycle from a garage.
I also seem to recall reading somewhere that the body that is in charge of making suggestions for sentencing guidelines is routinely ignored.
It's politically very easy for a politician to be 'tough on crime' and to try and score brownie points with the electorate by pushing for increased sentencing for criminals. I think in the minds of many people, there's nothing wrong with a philosophy of lock'em up and throw away the key. So, politically, you have a great deal of pressure for increased sentencing.
This is one of those times that I am thankful we have the courts to, hopefully, put some kind of brakes on the populist impulses. I am also thankful for the many religious activists who push for compassion in the law, too.
posted
OK, my prediction on this case, which should be decided soon:
5-4 the guidelines are upheld, largely on the grounds that they do not lead to sentences which exceed the statutory maximums.
On this line of cases, Scalia has been the swing vote, and he has fairly consistently ruled that minimums can be increased by judge-made factual findings, but maximums can't.
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