Friday, January 21, 2005

Booker: reasonable doubt survives

After Booker, what standard of proof prevails at sentencing? Here is a Fifth Amendment argument that the "reasonable doubt" standard should still control based on statutory construction:
Booker is strictly a Sixth Amendment case. The reasonable doubt standard derives from the Fifth Amendment under Winship. The sentencing statutes do not set a standard of proof; the preponderance standard derives from Chapter 6 of the guidelines. Given the closeness of the decision on jury rights, the reasonable doubt standard may be a constitutional winner.
Think about the rationale of Summerlin v. Schriro - retroactivity did not apply because judge determinations beyond a reasonable doubt were sufficiently reliable. Then remember Justice Thomas's footnote 6 in his dissent to Justice Breyer's opinion in Booker, in which he quotes Chapter 6 regarding the Commission's belief that the preponderance standard applies, then says "The Court's holding today corrects this mistaken belief."
The serious remaining constitutional question regarding reasonable doubt opens a statutory construction argument that subsumes the actual constitutional question. On the same day Booker was decided, the Court issued its opinion in Clark v. Martinez, in which the Court expanded on the doctrine of constitutional avoidance as a rule of statutory construction. The federal sentencing statutes should be construed to avoid the difficult constitutional question on whether harsher sentencing -- whether presumptive or required except in extraordinary circumstances -- violated due process when the greater punishment was based on less than an admission or proof beyond a reasonable doubt.
This is just what the Ninth Circuit did in Buckland to save the federal drug statute. Even without Justice Thomas's note on the effect of the first part of Booker on Chapter 6, the statutory construction argument would require the guidelines and commentary to fall under Stinson, in which the Supreme Court found that statutes govern over inconsistent guidelines. The result should be that post-Blakely precedent is only reversed on the Sixth Amendment question, not on the reasonable doubt requirement.
As a practical matter, this construction would afford greater reliability and consistency in sentencing. Harsher sentencing would only occur based on the highly reliable standard (eliminating the evil of the tail wagging the dog in so many drug cases); appellate review for reasonableness would be based on the familiar standard from Jackson v. Virginia; and judges are probably more comfortable than juries with guilty clients arguing about the degree of culpability. As always, most cases will probably be resolved by negotiation.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon.


Anonymous Anonymous said...

penetrating analysis. Mike L.

Friday, January 21, 2005 10:29:00 AM  
Blogger Douglas said...

Very powerful and important stuff, to which I will add a few thoughts in a coming post on my SL&P blog. Good work.

Friday, January 21, 2005 1:28:00 PM  
Anonymous Anonymous said...

A good indication of how the Court will likely resolve the preponderance/reasonable doubt debate can be found in Harris v. United States, 536 U.S. 545 (2002), and the cases it relies upon like Jones v. United States and Almendarez-Torres. After a defendant has been convicted beyond a reasonable doubt on the elements of a crime, or after he has admitted the elements by entering a plea, the Court has no difficulty with the idea of permitting a judge alone to make findings regarding sentencing factors by a preponderance of the evidence as long as those findings do not increase punishment beyond the statutory maximum.

Reaffirming McMillan and employing the approach outlined in that case, we conclude that the federal provision at issue, 18 U.S.C. § 924(c)(1)(A)(ii), is constitutional. Basing a 2-year increase in the defendant's minimum sentence on a judicial finding of brandishing does not evade the requirements of the Fifth and Sixth Amendments. Congress "simply took one factor that has always been considered by sentencing courts to bear on punishment ... and dictated the precise weight to be given that factor." McMillan, 477 U.S., at 89-90, 106 S.Ct. 2411. That factor need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt.

The Court is well aware that many question the wisdom of mandatory minimum sentencing. Mandatory minimums, it is often said, fail to account for the unique circumstances of offenders who warrant a lesser penalty. See, e.g., Brief for Families Against Mandatory Minimums Foundation as Amicus Curiae 25, n. 16; cf. Almendarez-Torres, supra, at 245, 118 S.Ct. 1219 (citing United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System 26-34 (Aug.1991)). These criticisms may be sound, but they would persist whether the judge or the jury found the facts giving rise to the minimum. We hold only that the Constitution permits the judge to do so, and we leave the other questions to Congress, the States, and the democratic processes.

Harris v. United States, 536 U.S. at 568-569 (brandishing firearm sentencing fact of 18 U.S.C. §924(c) that judge can find by a preponderance of evidence).

Additionally instructive regarding the preponderance/reasonable doubt debate, post-Booker, is Kennedy’s Part III in Harris, joined by Rehnquist, O’Connor and Scalia. Part III discusses, at length, the Sixth Amendment jury trial right and the Fifth Amendment protection afforded by the beyond a reasonable doubt standard. These Constitutional protections do not come into play once a conviction by jury trial or plea has been obtained.

As the Court reiterated in Jones: "It is not, of course, that anyone today would claim that every fact with a bearing on sentencing must be found by a jury; we have resolved that general issue and have no intention of questioning its resolution." 526 U.S., at 248, 119 S.Ct. 1215. Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.

Harris, 536 U.S. at 558.

One of the real battles post-Booker might not be what standard to apply to sentencing as that issues seems to have already been resolved. Harris, Jones, Almendarez-Torres, McMillan. Instead, there may likely be more of a fight over what facts are elements of a crime (apply reasonable doubt standard get protection of Blakely) as opposed to what facts are simply sentencing factors (preponderance standard prevails).

Tuesday, January 25, 2005 2:39:00 PM  
Blogger shipwreckedcrew said...

This analysis flies in the face of the Supreme Court's determination in Pennsylvania v. McMillan that burdens of proof at sentencing are not subject to constitutional due process considerations.

"[W]e now turn to petitioners’ subsidiary claim that due process nonetheless requires that visible possession [of a firearm] be proved by at least clear and convincing evidence. ... Pennsylvania has deemed a particular fact relevant and prescribed a particular burden of proof. We see nothing in Pennsylvania’s scheme that would warrant constitutionalizing burdens of proof at sentencing. [FN8]

FN8 ... As noted in the text, sentencing courts have always operated without constitutionally imposed burdens of proof; embracing petitioners’ suggestion that we apply the clear-and-convincing standard here would significantly alter criminal sentencing, for we see no way to distinguish the visible possession finding at issue here from a host of other express or implied findings sentencing judges typically make on the way to passing sentence.
477 U.S. at 91.

The vitality of McMillan has been questioned since Apprendi, but it has yet to be overruled. As of now, the language in this decision trumps any "implication" of Booker on the subject of burden's of proof at sentencing in a post-Booker world.

Monday, February 07, 2005 5:39:00 PM  

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