I had the privilege to attend yesterday's argument in the Rita and Claiborne cases. It was not nearly as exciting for the defense as the argument in Booker/Fanfan. In the Booker case, the courts protective view of the 6th amendment was clear. You could tell from the start there was at least 4 strong votes for the federalization of Blakely. You could also see Justices Breyer and Kennedy lobbying votes for the remedial decision.
For those of you not up on federal sentencing law, a fast update: in the mid 80's, Congress clearly upset with the divergence of sentencing and the randomness of the range from circuit to circuit and even judge to judge, set up a mandatory sentencing scheme which would give points for everything a judge should consider when sentencing someone. The judge would make a finding of whether a fact existed or not, add up the points and Voila a sentence would appear. For 18 years that was the law. Finally 3 years ago the court stated that such a sentencing scheme violated a person's right to be judged by a jury of his peers. In order to save a semblance of the "uniformity in sentence" that the guidelines gave, the court in Booker said that while mandatory guideline sentencing was unconstitutional (the merits part of the decision), an advisory guideline system was not. Instead it instructed trial level courts to consult the guideline range but them consider other factors delineated in the sentencing law (18 USC 3553a) so that they would craft a sentence that was the minimum necessary to accomplish the goals of sentencing that were laid out in the law. Courts of Appeal would then review these sentences to determine if they were reasonable given the other sentences within the circuit and the nation (this solution is known as the "remedial" side of the decision.
The cases argued yesterday, asked the question: Are the guidelines just one thing among equal issues the court should consider in crafting a sentence, or are they to be considered reasonable per se, with only extraordinary cases being allowed sentences outside of them?
Yesterday was a more contemplative court. Both anchors of the debate are clearly not happy with the results of the Booker case. Breyer was fighting for judicially mandated, case law driven guidelines that are in fact mandatory by virtue of the fact that a district court will know just what the appellate court will allow, and Scalia is fighting for the 6th amendment right to a jury driven sentencing scheme where a defendant is sentenced only by the facts he admits or a jury finds. The middle seems to be Chief Justice Roberts and Justice Ginsburg who still seems married to the Booker decision.
The attorneys for both sides argued valiantly. But as another commentator has said, they seemed to all be having separate conversations, none of which helped the court to resolve the issues it had before it.
The court was concerned that courts of appeals, deciding which issues were mitigating and which were aggravating, were just acting as mini Sentencing commissions. District court judges who did not want to be overturned would look to the decisions of the appellate courts and decide not what was right for the individual before them but instead decide what would make the appellate court happy. In effect the appellate court's decisions would become defacto mandatory guidelines.
In effect the merit's side of the court was arguing again that the remedial side of Booker was an impossible solution to the 6th amendment problems with guideline sentencing.
The merits side of Booker, clearly overly protective of the guidelines, was arguing that the sentencing statute's purpose in uniformity was a key to the issue and that the guidelines had to be at least per se reasonable unless the case were remarkable.
The issue became clear near the end of the Rita argument and held for most of the Claiborne argument. If the guidelines are really advisory, then the 6th amendment forbids appellate review for reasonableness. Both the Solicitor General and Justice Scalia answered that question that way. In a humorous but serious exchange Justice Bryer jumped in with a defense of the remedial solution which lead the Solicitor to suggest he had heard this argument before and (without saying it)preferred to not be in the middle of it (There is an old African saying that when Elephants make love Butterfly's get crushed... I think the Deputy SG is familiar with the concept)
Here is the rub from where I sit. IF in fact the court thinks that the 6th amendment right to a trial by jury is important. It has to rule that the guidelines are not constitutional at all. That sends Federal criminal law into a tail spin. If it wants to hold on to some semblance of the guidelines, Breyer and his side is going to have to say that the guidelines are to be consulted and that reasonableness review is not to uphold uniformity but to uphold the other goals of section 3553a. Otherwise the court is going to have to say that you can only sentence according to facts found at trial or admitted to by the defendant.
If Congress is seriously interested in uniformity, it will change the sentencing scheme completely, take out issues that allow departure upward or downward and pass a guideline approach that punishes only for the crime committed, with very narrow mandatory minimums and maximums to reduce judicial independence. The review in the appellate level would be then limited to 8th amendment review for cruel or unusual sentencing. Congress could allow appellate courts to review with a lesser standard, but I do not think that such a lesser standard stands a chance in the atmosphere that exists on Capitol Hill today.