Tuesday, October 09, 2007

0-3 On The Sentencing Certs That Matter The Most

Professor Berman is mourning denial of certiorari in one of his favorite sentencing cases and asked for nominations for other disappointing cert denials (here). The choice looks easy to me: The single most important sentencing issue, which is potentially involved in almost every federal sentencing, is whether judge-determined facts that increase the guidelines level should be found beyond a reasonable doubt, either under the Doctrine of Constitutional Avoidance or under the Fifth Amendment.

Since Booker, this huge issue has been, for the most part, ducked by the circuit courts, which tend to view the post-Booker world as if Blakely and Apprendi never happened. In Grier, the Third Circuit engaged in the first real debate on the reasonable doubt standard and shattered into five different opinions, three involving judges who believe that the reasonable doubt standard should apply. The Ninth Circuit in Pike, with considerably less analysis, has continued to underplay the issue of the Fifth Amendment’s reasonable doubt requirement, instead relying on pre-Booker caselaw to approve sentences that would be unreasonably harsh in the absence of findings made by a judge by only a preponderance of the evidence.

Both Grier and Pike were briefed to the Supreme Court in petitions for certiorari (here and here). In Grier, the Court called for a response by the Solicitor General, then on October 1st, among the piles of cert denials, both Grier and Pike ended on the cutting room floor. The reasonable doubt issue has never been addressed with any rigor in any circuit other than the Third. We need to keep raising and litigating the reasonable doubt issue, taking advantage of the analyses in the Grier and Pike cert petitions, as well as the dissenting and concurring opinions in Grier.

The reasonable doubt issue is one of the big three that the Supreme Court should address based on their exceptional importance. In Apprendi and Blakely, the Court accepted cert in the absence of any split in the circuits because of the importance of the principle behind those Sixth Amendment cases. To the same extent, the Supreme Court should accept certiorari on the Fifth Amendment question regarding reasonable doubt for sentencing factors, especially those constituting separate crimes.

The other two big Federal Defender issues the Supreme Court has ducked are the continuing viability of Almendarez-Torres (briefed here) and the construction of the good time statute (blogged here). On Almendarez-Torres, Justice Stevens and Justice Thomas sparred regarding the denial of cert in Rangel-Reyes, with Justice Stevens stating that the absence of a split was sufficient to demonstrate that no Supreme Court review is appropriate. Similarly, in Moreland, Justice Stevens asserted that the absence of a split regarding the interpretation of the good time statute – as ambiguous – made certiorari inappropriate, even though he agreed with the district court in Moreland that the statute was apparently being misinterpreted (at the expense of 36,000 years of cumulative federal prisoner time at the cost of over $800 million dollars).

Supreme Court Rule 10(c) specifically identifies questions that are important as appropriate for certiorari: where a circuit court “has decided an important question of federal law that has not been, but should be, settled by” the Supreme Court. The standard of proof for aggravation of almost every federal sentence, the amount of good time provided to over 95% of federal prisoners, and the requirement of proof of the timing, nature, and existence of prior convictions in thousands of illegal reentry and armed career criminal cases are at least important questions of federal sentencing law that the Supreme Court should finally resolve.

When I compare the cert grants regarding criminal law statutes and principles that involve maybe a handful of federal cases, it appears the cert grants are not efficiently allocating the Supreme Court’s resources to the issues that matter the most. We need to keep providing the Court the opportunity to grant certiorari in the three big issues that affect Federal Defender clients every day.

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


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