Tuesday, July 17, 2007

Rita And Reasonable Doubt

In Rita, the Supreme Court addressed the standard of review for sentencing appeals and approved a presumption of reasonableness for Guidelines sentences, with the caveat that the presumption applied only on appeal. Rita leaves the most important post-Booker sentencing question unanswered: whether controverted facts that aggravate the Guidelines range must be proved to the judge beyond a reasonable doubt. The Rita opinion provides additional arguments that, whether under the Doctrine of Constitutional Avoidance or directly under the Fifth Amendment, the reasonable doubt standard should apply, especially in light of the fractured Third Circuit en banc opinion in Grier, where three judges found that the reasonable doubt standard should apply.

One of the most interesting aspects of Rita was the seemingly conscious limitation of the reasoning to Booker’s Sixth Amendment holding. This limitation leaves completely open the critical distinction between Sixth and Fifth Amendment jurisprudence: the reasonable doubt standard is simply more important than the identity of the finder of fact. We know this from retroactivity doctrine, which requires retroactive application of new constitutional rules related to reasonable doubt but not to jury trial; from the sanctity of the form of the rights, which prevents dilution of the reasonable doubt standard, while permitting non-unanimous and fewer than twelve member juries; and the language used in characterizing the rights, which finds juries basic to Anglo-American jurisprudence, while the reasonable doubt standard is of “transcending value.” The key throughout is our society’s dedication to a very high standard of reliability before a fact can justify additional punishment.

The reasonable doubt standard is before the Supreme Court in petitions for certiorari to the Third Circuit in Grier and the Ninth Circuit in Pike (cert petitions linked here and here), where the arguments are articulated in detail. Rita gives us some reason for optimism that the Court will accept certiorari and ultimately bring us closer to a Unified Theory of Post-Booker Sentencing, which requires that all controverted facts warranting greater punishment be established beyond a reasonable doubt.

The first contribution from Rita stems from Judge Ambro’s anticipation in Grier of the “significant danger” of recreating an unconstitutional sentencing scheme by adopting a presumption of reasonableness. Grier, 475 F.3d at 588 n.37 (concurring). To demonstrate the constitutional dangers – to engage in a bit of metablogging – Judge Ambro cited to the Federal Sentencing Reporter article based on this blog, which points out the higher level of Fifth Amendment protection, as well as the firm line the Court has traditionally drawn in protecting against presumptions that dilute the reasonable doubt standard’s protection. Although the Rita Court found that judge-made findings permitted a presumption of reasonableness on appeal, the Court did not address the question whether the reliability issues underlying the reasonable doubt standard would create constitutional issues if the presumption was based on controverted facts established only by a preponderance of the evidence.

Second, the fragmented Rita opinions reflect serious residual concern regarding the real world effects of Booker. There is not a Federal Defender who does not know that aggravating Guidelines factors result in a greater punishments. The concurring opinion of Justices Scalia and Thomas, while recognizing the stare decisis effect of Booker, also sees the unresolved Sixth Amendment problems with the Guideline scheme, as did Justice Souter’s dissent’s reference to the “gravitational pull” of the Guidelines range. My favorite sentence, when translated to the Fifth Amendment reasonable doubt context, demonstrates a real understanding that we are not debating academic points but deciding how long people are incarcerated for facts not proved beyond a reasonable doubt: “Under the scheme promulgated today, some sentences reversed as excessive will be legally authorized in later cases only because additional judge-found facts are present; and as Justice Alito argued in Cunningham, some lengthy sentences will be affirmed (i.e., held lawful) only because of the presence of aggravating facts, not found by the jury, that distinguish the case from the mine-run.” For those differences to meet Fifth Amendment standards, controverted facts must be established beyond a reasonable doubt.

In Summerlin, the Supreme Court rejected retroactive application of Ring, which recognized the Sixth Amendment right to a jury determination of aggravating factors resulting in the death penalty. The reasonable doubt standard provided the key to the Court’s reasoning: because the facts were established to the judge beyond a reasonable doubt, they were sufficiently reliable that the finality of the decision need not be disturbed. In contrast, every day federal judges impose harsh sentences aggravated by months and years based on facts proved by only a preponderance. A majority of the Supreme Court should find the contrast significant.

Third, the Rita majority, with no mention of the standard of review, reassured itself that the presumption of reasonableness was based on “the thorough adversarial testing contemplated by federal sentencing procedure.” From the time Blakely came down and since Booker, the role of the reasonable doubt standard has been hotly debated between District Court judges who recognize the practical importance of controverted facts that affect the Guidelines, which should require a resolution of the disputed facts beyond a reasonable doubt, and Courts of Appeals that persist in approving of controverted Guideline ranges proved only by a preponderance based on pre-Blakely circuit authority. To assure the reliability of facts necessary to the period of incarceration, the most important feature of the adversarial process at sentencing would be the application of the reasonable doubt standard to controverted sentencing facts.

We need to be consistent and persistent in protecting our clients against sentence aggravation based on a civil standard of proof rather than the reasonable doubt guaranteed by the Fifth Amendment. As briefed in the linked petitions in Grier and Pike, the Court can reach the desired result either by the Doctrine of Constitutional Avoidance or directly under the Fifth Amendment. The Grier majority opinion is especially flawed, as briefed on pages 11-15 of the Pike petition. While making our records and preserving our issues, we should use the Rita opinion’s presumption of reasonableness to emphasize the appropriateness of the traditional constitutional standard of proof of facts that increase the available punishment: beyond a reasonable doubt.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


Blogger catdirt said...

you should add a "blogroll" to this blog.

Wednesday, July 18, 2007 10:55:00 AM  

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