Commentary: Flexibility may not shorten sentences

The Daily Record (Baltimore, MD)
January 13, 2005 Thursday
Peter Geier


With six separate opinions, including two different 5-4 majority opinions, yesterday's pronouncement(s) on the U.S. Sentencing Guidelines were long and involved. But at least one federal judge in Maryland was looking forward to every word.

U.S. District Judge J. Frederick Motz said he had not yet read the opinion yesterday afternoon but welcomed what he has heard about it.

"If the reports I have read are accurate," Motz said in an e-mail, "the Supreme Court has cut through the Gordian Knot. With a few bold strokes of the pen, it has given the guidelines the flexibility they need to be workable and fair."

The judge said he always believed that the sentencing process needs guidelines to give it overall uniformity.

"At the same time, I have believed that the federal sentencing guidelines have never been 'guidelines' at all but rigid mandates that too often have resulted in injustices in individual cases," creating "an appearance of sentencing uniformity when no such uniformity has existed," Motz wrote.

In effect, they "merely transferred the discretion to make many sentencing decisions from judges to prosecutors and other law enforcement officials when they decide what charges to pursue," he noted.

Motz said he welcomed the restoration of a trial judge's sentencing discretion "subject to the standard of reasonableness, and the Guidelines will help provide content to that standard."

"Moreover, transparency has been returned to the process because, when imposing sentence, judges -- unlike prosecutors who make their charging decisions in the privacy of their offices -- must articulate their reasons on the public record," the judge wrote.

Perils of advisory approach

In a nutshell, the first majority opinion found that the mandatory U.S. Sentencing Guidelines violated a defendant's right to trial by jury. That 5-4 opinion was authored by Justice John Paul Stevens.

Stevens, however, disagreed with most of his colleagues about how to fix the constitutional flaw. He dissented from the second majority opinion, which found that the remedy was to treat the guidelines as something that must be considered -- but not necessarily adhered to -- by the sentencing judge. Justice Ruth Bader Ginsburg constituted the fifth vote on that opinion, which was written by Justice Stephen Breyer.

Assistant Attorney General Christopher A. Wray said in a prepared statement issued yesterday by the Justice Department that an advisory approach has its perils.

"To the extent that the guidelines are now advisory " the risk increases that sentences across the country will become wildly inconsistent," Wray wrote.

The Justice Department "remains committed to the core principles and the just foundation created in the Federal Sentencing Reform Act, and the guidelines that resulted from the Act -- fair, tough, uniform, predictable and proportionate sentences," he wrote. It "looks forward to working on this critical issue with Congress, the U. S. Sentencing Commission, the Judicial Conference, victims of crime and all other Americans who have a stake in seeing justice done."

Advisory or not, Gary W. Christopher, first assistant federal public defender in Baltimore, noted that the 17-year-old guidelines still carry a lot of weight with judges.

"The guidelines have a lot of teeth and a lot of authority," he said.

"When the old way of thinking is supplemented by new approaches, and the courts have their own discretion to make modifications if they think the guideline sentence is too harsh or too lenient, we may learn to love the new regime," he said.

The fact that they are to be advisory rather than mandatory is sure to have an impact on plea negotiations, but the public defender's office would have to see how the U.S. Attorney's Office interprets the decision, Christopher said.

As for the "the old parlance about downward departures and upward adjustments" -- the former guideline standards the court used to modify sentences -- "none of that is particularly germane any more," he said.

Other defense lawyers greeted yesterday's decision with some skepticism, with one describing it as "bittersweet."

Carmen Hernandez, vice president of the National Association of Criminal Defense Lawyers, said during a conference call with reporters that the decision may not necessarily make much difference to defendants.

Critics who fear there may be a rash of lenient sentences may be surprised, she hinted, for the simple reason that judges will still have to consult the existing guidelines.

"I don't think the sky is falling down for the Department of Justice," she said. "I don't think the prison cells will be empty after today."

However, she noted that the ruling will lead to more litigation from defendants who were convicted prior to the decision.

Professor Douglas Berman, an expert on sentencing law at Ohio State University Moritz College of Law, said the decision sidestepped the Sixth Amendment issues raised in the case.

The court first upheld Blakely v. Washington, and therefore the premise that the sentencing guidelines are mandatory, but then ruled that the guidelines should be discretionary, he noted.

However, there can still be a Sixth Amendment problem if the judge makes factual findings, Berman said.

Jon Sands, the federal public defender in Arizona, who also spoke on the conference call, agreed with Berman, saying yesterday was "a bittersweet day for criminal defendants."

Although the court upheld Blakely, its remedy still left the sentencing power in the hands of the judges, he said.

Professor Frank Bowman, a former federal prosecutor now with the Indiana University School of Law, acknowledged that the ruling gives many judges what they have wanted for years.

"What we have is unconstrained judicial discretion," he said. "We have an unprecedented system."

He added: "It's not a tremendous windfall to inmates, it's a windfall for people who like to litigate, because there's going to be lots of litigation."

As for the implications for those directly involved in the case, Dean A. Strang, the federal public defender in Wisconsin who represented Freddie Booker in the case decided yesterday, said the nature of the decision meant his client could receive the same 30-year sentence he appealed against.

"Unfortunately he may end up with the same sentence as was originally imposed," Strang said.

What happens next?

As for what happens next, DLA Piper Rudnick Gray Carey partner Arthur F. Fergenson, who clerked for Chief Justice Warren E. Burger, said the Supreme Court had made it clear to Congress that sentencing guidelines are not the way to regulate sentencing.

The obvious alternative is to ditch the current system altogether and replace it with a series of enhancements that prosecutors will add to their charging documents before the case ever goes to court, he noted.

"That would be constitutional," Fergenson said.

Most importantly, judges would have to adhere to the sentencing range provided in the statute, thereby losing some of the discretion that Booker would grant them.


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