The Much Exaggerated Demise of the Sentencing Guidelines

The harsh United States Sentencing Guidelines were developed in during the drug war.  Many federal judges hated the injustices that sometimes resulted despite their wishes.  Under them, the sentencing hearing was more important than the trial.  Yet there, proof beyond a reasonable doubt doesn’t apply, judges can consider crimes the jury acquitted a defendant of, and evidence often comes in affidavits from people not in the courtroom.The U.S. Supreme Court in its Booker case held last year that the scheme was unconstitutional because judges rather than juries decided maximum sentences.  But, the repeal hasn’t provided the safety valve for mercy that was expected.  The courts have all but ignored this U.S. Supreme Court ruling.  A recent decision from the 10th Circuit Court of Appeals in Denver of a Utah case shows the heads I win, tails you lose interpretation that Booker has been given.

After Booker, judges still calculate what sentence would have come down if the sentencing guidelines were in place.  They’re not supposed to have to follow them, however.  Officially, they are merely advisory.

But, in practice, appellate courts have routinely upheld sentences in excess of the guideline ranges, while they have routinely reversed sentences below the guidelie ranges.  Sentencing within the guideline ranges are presumed reasonable in the 10th Circuit, which includes Colorado, even where mitigating circumstances are present.

The latest development comes in Denver’s 10th Circuit Court of Appeals.  It held on Tuesday that a sentence within the guideline range must be upheld as reasonable, even if the judge indicates on the record, an apparently mistaken belief that the sentencing guidelines are mandatory, ignoring recent, binding U.S. Supreme Court precedent from Booker, a case that every federal judge in the country should be familiar with, because it applies to every single federal criminal case.

Normally, when a judge says something that indicates that the wrong legal standard is applied in a case, the appellate court simply clarifies the law for the judge and asks that judge to take a fresh look at the case in that light.  The defendant isn’t guaranteed a break, but is, at least, assured that the judge did so realizing what the law was in the case.  It is a modest remedy that doesn’t let a convicted criminal go free, and often results in only a modest change if any.  If the judge intended to do what he said and merely misspoke, that can swiftly be corrected.  But, the 10th Circuit, when the sentencing guidelines were involved, wasn’t willing even to let an ambiguity in the judge’s statement that seemed to show that he misunderstood the law be cleared up.

As Professor Douglas Berman, a sentencing law professor whose blog posts have been cited in more court cases than many law review articles (and more than any other blogger in the world), describes this case:

So, it is reasonable to carelessly treat the guidelines as mandatory, but unreasonable to thoughtfully treat the guidelines as advisory.  Yeah, sure, … that’s a fair reading of Booker.  Of course, such a guideline-centric, anti-defendant attitude has been prevalent in the circuit courts for 18+ months, as evidenced by the ugly patterns of reasonableness review.  As documented here, thoughtful district judges have come to believe, based on circuit precedents, that Booker does not really provide any additional sentencing discretion to sentencing judges.

Though I have now read hundreds of post-Booker circuit opinions, I still amazed and surprised by the judicial activism reflected in those appellate rulings that seem so eager to preserve the pre-Booker guideline sentencing system despite Booker’s declaration that such a system is unconstitutional.  I am also troubled that the usual critics of judicial activism, who are so quick to assert that liberal judicial ruling are lawless, have not made a peep about the post-Booker circuit activism keeping the guidelines propped up.

The Bush Administration has made a nationwide push for this tortured interpretation of Booker, and by and large, it has won.

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Andrew Oh-Willeke

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