Kandirakis: reasonable doubt, constitutional avoidance, and more
In United States v. Kandirakis, Massachutses District Court Judge William Young has provided a wonderful survey and critique of the post-Booker sentencing world. Weighing in at 125 pages, the opinion in Kandirakis (available here) is well worth the time for criminal defense practitioners in federal court. The last time Judge Young engaged in such an effort, he anticipated both Blakely and Blakely's eventual application to the federal Guidelines in Booker.
The opinion is full of the history of Booker and its contradictory majority opinions, the role of the Guidelines viewed through the lens of appellate review, and the roots of the Sixth Amendment. My favorite section, and the one that provides the best support for future briefing, is the review of the reasonable doubt standard at sentencing (pages 79 to 109).
Pre-Booker, courts applied the preponderance standard out of deference to the Guidelines’ suggestion in U.S.S.G. § 6A1.3 that the Commission "believes" the standard meets due process. Judge Young found that Justice Stevens’ majority Booker opinion "casts significant constitutional doubt on such blind adherence." Judge Young cites to Justices Scalia’s statement in his partial dissent: "[T]he Commission’s view of what is ‘better’ is no longer authoritative, and district judges are free to disagree – as are appellate judges." In other words, as we have been arguing since the Booker opinion came out (see reasonable doubt blogs summarized here), the slate is clean for the argument that, in the absence of a sentencing statute adopting a standard of proof, the Doctrine of Constitutional Avoidance requires that sentencing statutes be interpreted to incorporate the Fifth Amendment’s reasonable doubt standard to avoid the serious constitutional questions that inhere in increased incarceration based on facts established by less than proof beyond a reasonable doubt.
Although the arguments and precedents are nicely arrayed for our use, Judge Young is ultimately constrained by First Circuit authority: "I hear and I obey." But the Circuits have not expressly addressed the Doctrine of Constitutional Avoidance argument. We need to continue to argue for this position: the legal argument is seamless and right; and the policies underlying the reasonable doubt standard focus sentencing courts on the significance of disputed facts.
Three additional points. There is an interesting review of "pious perjury" at common law at pages 68-69: should we be arguing that the Sixth Amendment right to jury trial includes the sentencing function of "pious perjury", with the jury informed of mandatory minimum punishments, allowing a verdict on a lesser included offense to avoid draconian punishment required by the greater offense? Judge Young discusses the Ex Post Facto Clause under the advisory system at page 123-24: the court applies the Doctrine of Constitutional Avoidance to bar application of higher Guidelines promulgated after the offense given the "substantial weight" given to the Guidelines. And throughout the opinion, Judge Young cites to the Federal Defenders' letter to the Sentencing Commission by Arizona Federal Public Defender Jon Sands on a number of issues. The letter, available here, should be a routine part of our advocacy on sentencing norms. Great work by our national sentencing policy team!
Judge Young’s opinion is, at heart, a love letter to the American jury and the reasonable doubt standard. The long read is worth the effort in providing an overall framework for advocacy and citations to the most important cases in this evolving area. The work also reaffirms and stokes the defense passion to protect the Bill of Rights.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
The opinion is full of the history of Booker and its contradictory majority opinions, the role of the Guidelines viewed through the lens of appellate review, and the roots of the Sixth Amendment. My favorite section, and the one that provides the best support for future briefing, is the review of the reasonable doubt standard at sentencing (pages 79 to 109).
Pre-Booker, courts applied the preponderance standard out of deference to the Guidelines’ suggestion in U.S.S.G. § 6A1.3 that the Commission "believes" the standard meets due process. Judge Young found that Justice Stevens’ majority Booker opinion "casts significant constitutional doubt on such blind adherence." Judge Young cites to Justices Scalia’s statement in his partial dissent: "[T]he Commission’s view of what is ‘better’ is no longer authoritative, and district judges are free to disagree – as are appellate judges." In other words, as we have been arguing since the Booker opinion came out (see reasonable doubt blogs summarized here), the slate is clean for the argument that, in the absence of a sentencing statute adopting a standard of proof, the Doctrine of Constitutional Avoidance requires that sentencing statutes be interpreted to incorporate the Fifth Amendment’s reasonable doubt standard to avoid the serious constitutional questions that inhere in increased incarceration based on facts established by less than proof beyond a reasonable doubt.
Although the arguments and precedents are nicely arrayed for our use, Judge Young is ultimately constrained by First Circuit authority: "I hear and I obey." But the Circuits have not expressly addressed the Doctrine of Constitutional Avoidance argument. We need to continue to argue for this position: the legal argument is seamless and right; and the policies underlying the reasonable doubt standard focus sentencing courts on the significance of disputed facts.
Three additional points. There is an interesting review of "pious perjury" at common law at pages 68-69: should we be arguing that the Sixth Amendment right to jury trial includes the sentencing function of "pious perjury", with the jury informed of mandatory minimum punishments, allowing a verdict on a lesser included offense to avoid draconian punishment required by the greater offense? Judge Young discusses the Ex Post Facto Clause under the advisory system at page 123-24: the court applies the Doctrine of Constitutional Avoidance to bar application of higher Guidelines promulgated after the offense given the "substantial weight" given to the Guidelines. And throughout the opinion, Judge Young cites to the Federal Defenders' letter to the Sentencing Commission by Arizona Federal Public Defender Jon Sands on a number of issues. The letter, available here, should be a routine part of our advocacy on sentencing norms. Great work by our national sentencing policy team!
Judge Young’s opinion is, at heart, a love letter to the American jury and the reasonable doubt standard. The long read is worth the effort in providing an overall framework for advocacy and citations to the most important cases in this evolving area. The work also reaffirms and stokes the defense passion to protect the Bill of Rights.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
posted by Steve Sady at 8/02/2006 01:20:00 PM
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