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Transcript of K. Toledo_Seminar Paper 2014_Prof. Burris
Constitutional Challenges of Federal Sentencing Procedures POST – BOOKER DISPARITY and SUBSTANTIAL ASSISTANCE Krizia L. Toledo
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INTRODUCTION
Throughout the course of the Federal criminal justice system, the sentencing
process has faced notable changes. At the onset, case study is provided on select
Supreme Court cases that shaped the Federal Sentencing Guidelines (“Guidelines”).
The foregoing provides an analysis of sentencing procedures since the implementation
of the Guidelines and the Constitutional challenges faced throughout their application.
Analysis will also focus on constitutional issues stemming from sentencing disparity
caused by application of substantial assistance statutory considerations. Consideration
is given throughout to the foundational principles of sentencing, whether those
principles are met and the practices potentially impeding the meeting of those principles
in relation to constitutional guarantees.
Constitutional rights are designed to protect citizens from the deprivation of
individual liberties by limiting government’s ability to do so if and when one is faced with
a criminal charge.1 “Thus, the recognition of Constitutional rights at sentencing is
paramount.”2 The language of the Constitution provides several guaranteed rights in the
context of criminal justice. The Fifth Amendment of the Constitution states, “No person
shall be … deprived of life, liberty or property, without Due Process of Law,” 3
guaranteeing fundamentally fair proceedings in a court of law. The Sixth Amendment
guarantees, “In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury … [and] to be informed of the nature and cause of
1 Carissa Byrne Hessick & F. Andrew Hessick, Recognizing Constitutional Rights at Sentencing, 99 Cal. L. Rev. 47, 49 (2011). 2 Id. 3 U.S. Const. amend. V, -Due Process. 2 Id. 3 U.S. Const. amend. V, -Due Process.
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the accusation … .”4 The Fourteenth Amendment provides language similar to the Fifth,
guaranteeing preservation of fundamental freedoms and requiring government to give
equal protection to all citizens.5
I. Enactment of the Federal Sentencing Guidelines
The Sentencing Guidelines have provided the Federal court system with a
uniform sentencing policy governing the sentences rendered to those facing federal
criminal charges, through Congress’ enactment of the Sentencing Reform Act (“SRA”).
These guidelines are the product of the United States Sentencing Commission
(“Commission”), an independent, permanent agency of the judicial branch of the federal
government installed by Congress.6 Three principle issues motivated its enactment: (1)
Unfettered sentencing discretion bestowed federal trial judges; (2) Uncertainty of
punishments administered; and (3) Appropriate seriousness of penalties for crimes of
specific offenders.7 The Guidelines were created to promote four basic goals: (1)
Certainty in punishments rendered according to the charge(s) faced; (2) Uniformity in
punishments rendered to similarly situated defendants; (3) Proper proportionality
between considerations for decision and the decided punishment; and (4) Meeting the
purposes of sentencing. 8 The four basic purposes of criminal punishment are
4 U.S. Const. amend. VI, - Jury Trials. 5 U.S. Const. amend. XIV, - Privileges and Equal Protect. 6 http://www.ussc.gov/sites/default/files/pdf/about/overview/USSC_Overview.pdf at 1. 7 Id. 8 Id.
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deterrence, incapacitation, rehabilitation, and just punishment. 9 Each is to be
considered in the determination of an individual’s sentence.
The Guidelines went into effect November 1, 1987.10 Congress made clear that
equality is a valued principle since uncertainty in sentencing was a main issue the
Commission was entrusted to address.11 Congress attributed disparity (inequality) to the
unfettered discretion afforded to judges in deciding a defendant’s sentence. To address
this issue, Guidelines were made mandatory and restricted judges by requiring them to
impose prison terms within a narrow range specified by the guidelines. From the onset,
the Guidelines have allowed judges to depart upward or downward from the mandatory
ranges in a limited set of circumstances. 12 This imposed system became highly
controversial and was particularly criticized in two major ways: (1) defendants were not
being treated as individuals making the practice unjust; and (2) guidelines provided
prosecutors with great power in determining the sentence ranges since sentences
largely depended on the charged offenses.13
II. Historical Constitutional Challenges Post Guideline Enactment
MISTRETTA - Separation of Powers The first notable constitutional challenge was brought forth in Mistretta v. United
States, 488 U.S. 361 (1989), where petitioner argued that the creation of the
Commission violated the separation of powers doctrine. In response, the court held that
the Commission, like other entities created by Congress, “do not exercise judicial power
9 U.S.S.G. Ch. ONE. Pt., A. Subpt. 1 10 See supra note 6 at 2. 11 18 U.S.C. §3553(a)(2) (1993). 12 J. Kelly Strader & Sandra D. Jordan, Ch. 19: Sentencing, White Collar Crime: Cases, Materials, and Problems, Second Edition, 613 (2009). 13 Id.
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in the constitutional sense of deciding cases and controversies, but they share the
common purpose of providing for the fair and efficient fulfillment of responsibilities that
are properly the province of the Judiciary.”14 In deciding to uphold the constitutionality of
the Commission as an agency of the judicial branch, the Court’s main inquiry was
“focused on the unique aspects of the congressional plan at issue and its practical
consequences in light of the larger concerns that underlie Article III.”15 The court then
stated, “although the Guidelines are intended to have substantive effects on public
behavior (as do the rules of procedure), … They do no more than fetter the discretion of
sentencing judges to do what they have done for generations-impose sentences within
the broad limits established by Congress.”16 Throughout the challenges posed to the
Guidelines, the separation of powers doctrine argument is not one that ever influenced
significant change.
Within the same month of the Mistretta Decision (January of 1989), the
Guidelines were implemented nationwide.17
APPRENDI - Due Process It seems as though the guideline procedure was steadily followed for about
eleven years without serious constitutional challenge, until Apprendi v. New Jersey, 530
U.S. 466 (2000). This case involved statutory consideration and not particularly the
Guidelines.18 In Apprendi, the Court address whether the due process clause requires
14 488 U.S. 361, 389 (1989). 15 Id at 393. 16 Id at 396. 17 See supra note 6 at 2. 18Id at 31.
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that a factual determination with potential to increase the maximum prison sentence by
10 years be proven beyond a reasonable doubt and decided by a jury. The Court held,
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 19 The Court also held “[I]t is unconstitutional for a
legislature to remove from the jury the assessment of facts that increase the prescribed
range of penalties to which a criminal defendant is exposed.”20 It was this case that
began to unravel the sentencing procedure created and initially implemented by the
Commission by attacking its constitutionality.
It is important to discuss the dissenting opinions, particularly Justice Breyer’s, an
original member of the Commission during its implementation.21 By analyzing the
different opinions held, one may recognize how a Justice’s interpretation of the
Constitution shapes the law. Justice Breyer based his opinion on “administrative need
and procedural compromise”, not on theory.22 Through his book, Active Liberty, Breyer
supports the utilitarian method of interpreting the Constitution, thus it is understandable
why his dissent is based on procedure rather than theory of the Constitution. His
interpretation is tailor to the need at hand. Breyer states, “There are, to put it simply, far
too many potentially relevant sentencing factors to permit submission of all (or even
many) of them to a jury.”23 Breyer relies on the principles set forth by the Commission
and recognizes that certain determinations, such as the fact in this case, have been
19 Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). 20 Id. 21 http://www.ussc.gov/about/commissioners/former-commissioner-information. 22 Apprendi v. New Jersey, 530 U.S. 466, 556-557 (2000). 23 Id at 557.
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traditionally made by judges, not juries; therefore, the Guidelines were made to give
judges a framework from which to work from while leaving them the ability to tailor
sentences to the individual facts surrounding the crimes of each defendant. 24
Ultimately, Justice Breyer contends,
“The Guidelines note that a sentencing system tailored to fit every conceivable wrinkle of each case can become unworkable and seriously compromise the certainty of punishment and its deterrent effect. To ask a jury to consider all, or many, such matters would do the same.”
Breyer recognizes that in “sentencing systems, proportionality, uniformity, and
administrability are all aspects of basic “fairness” that the Constitution demands,” and
contends that “a sentencing system, in which judges have discretion to find sentencing-
related factors, is a workable system and one that has long been thought consistent
with the Constitution.”25 Therefore, the Constitution does not require sentencing statutes
to be treated differently than any other.26
BLAKELY - Sixth Amendment Right to Jury Trial
Following the principles set forth in Apprendi, the Court addressed the issue of a
defendant’s sixth amendment right to jury trial more directly in Blakley v. Washington,
542 U.S. 296 (2004). Notably, this court held, “there was no distinction of the
constitutional significance between the federal sentencing guidelines and the
Washington [statutory] procedures at issue.”27
24 Id at 556. 25 Id at 559. 26 Id at 559. 27http://www.ussc.gov/sites/default/files/pdf/amendmentprocess/Supreme_Court_Cases.pdf at 31.
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In this case, the defendant was sentenced to three years above the 53-month
statutory maximum of the standard range for the offense charged.28 The District judge
based the sentence on facts within the guilty plea and an additional factual
determination made from those facts provided (that defendant acted with deliberate
cruelty).29 Such factual finding by the judge was held to have violated the defendant’s
sixth amendment right because “the facts supporting that finding were neither admitted
by petitioner nor found by a jury.”30 The petitioner had admitted to the elements of
second degree kidnapping and was therefore on notice regarding a punishment
appropriate with that charge, not three years above that expectation.31 The Court held
that when a judge inflicts punishment outside of that inflicted by the jury verdict, the
judge exceeds his proper authority.”32 This finding would seem consistent with the
purposes of the Commission in limiting judicial discretion. The SRA stated that a judge
could impose a sentence above the statutory maximum based on a finding of
substantial and compelling reasons. 33 The Court also acknowledged that the Act
provides aggravating factors (as examples) of what would constitute justification for this
type of departure.34 This Court also relies on language of the SRA when it points out
that such substantial and compelling reasons should be founded on factual findings
made by the jury, the traditional fact finder.35 The Court clarified that relevant “statutory
28 Blakley v. Washington, 542 U.S. 296 (2004). 29 Id. 30 Id at 303. 31 Id at 299. 32 Id at 303 – 304. 33 Section 9.94A. 120(2) 34 Section 9.94A.390. 35 “When a judge imposes an exceptional sentence, he must set forth findings of fact and conclusions of law supporting it.” Blakley, citing Section 9.94A.120(3).
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maximum” is the maximum that may be impose without any additional findings by the
judge.36 The Court expresses the importance of this constitutional right:
“Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.”37
This case presented a significant battle of Constitutional interpretations, specifically the
intent of the Framers in granting the American people the right to a jury trial and its
effects on the judicial system.
Justice Scalia delivered the majority opinion and in discerning the Framer’s intent
stated, “the very reason the Framers put a jury-trial guarantee in the Constitution is that
they were unwilling to trust government to mark out the role of the jury.”38 Scalia is
known to interpret the Constitution by adhering to Originalist theory: “It's what did the
words mean to the people who ratified the Bill of Rights or who ratified the Constitution,"
Scalia says.39 Therefore, he argues that the sixth amendment right to jury trial does not
limit the judge’s role, but secures the role of the jury in providing the judge what is to be
considered at sentencing, particularly facts in and stemming from the plea bargain.40
Scalia further states, “Without that restriction, the jury would not exercise the control the
Framers intended.”41 Ultimately, the Court held, “By reversing the judgment below, we
are not, as the State would have it, finding determinate sentencing schemes 36 Id at 305 – 306. 37 Id. 38 Id at 308. 39 Justice Scalia on the record, cbs.com, August 24, 2008. 40 Blakely at 306: “[T]he common people, should have as complete a control ... in every judgment of a court of judicature as in the legislature,” citing Letter from Thomas Jefferson to the Abbe Arnoux (July 19, 1789). 41 Id at 306.
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unconstitutional,” because “This case is not about whether determinate sentencing is
constitutional, only about how it can be implemented in a way that respects the sixth
amendment.”42 The majority basically contends that the appropriate legislative action
would be to:
“retain structured schemes that attempt to punish similar conduct similarly and different conduct differently, but modifying them to conform to Apprendi's dictates,” thus, “judges would be able to depart downward from presumptive sentences upon finding that mitigating factors were present, but would not be able to depart upward unless the prosecutor charged the aggravating fact to a jury and proved it beyond a reasonable doubt.”43 This scheme seems reasonable for two reasons: 1) The effectual difference
between upward departures and downward departures, and 2) The fact that a
defendant could waive his jury trial right and still have the opportunity to argue facts
before the judge (as the majority contends).44 From what can be gathered, the majority
places importance on preserving the Constitutional right embedded in the language of
the Constitution, while the dissent defends the statutory sentencing scheme arguing
principles authorized by the constitutional separation of powers.
The dissent, including Justice Breyer, fear this decision will threaten the fairness
of the judicial system by encouraging plea bargaining, as a result of additionally created
factors the Prosecution could use as tools. 45 He also fears the elimination of a
defendant’s right to argue certain sentencing factors before the judge.46 The difference
of opinions revert back to Aprendi, and how much legislative influence should be 42 Id at 308. 43 Id at 333, as explained by Justice Breyer in his dissent. 44 Id at 310. 45 Id at 331. 46 Id at 331: “Considering that most criminal cases do not go to trial and resolution by plea bargaining is the norm, the rule of Apprendi, to the extent it results in a return to determinate sentencing, threatens serious unfairness.”
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accepted in the judicial system’s sentencing determinations.47 The dissent contends that
legislative guidelines promulgated by the Commission are constitutionally appropriate,
while the majority contends that the legislative Guidelines are infringing upon the jury’s
fact-finding role. Ultimately, the dissent attack’s the majority’s decision in stating that
this conclusion as an
“extention of Apprendi to the present context will impose significant costs on a legislature's determination that a particular fact, not historically an element, warrants a higher sentence. While not a constitutional prohibition on guidelines schemes, the majority's decision today exacts a substantial constitutional tax. … Thus, facts that historically have been taken into account by sentencing judges to assess a sentence within a broad range all must now be charged in an indictment and submitted to a jury, simply because it is the legislature, rather than the judge, that constrains the extent to which such facts may be used to impose a sentence within a pre-existing statutory range.48 The dissent justifies their interpretation of the Framer’s intent by arguing that
“broad judicial sentencing discretion was foreign to the Framers; they were never faced
with the constitutional choice between submitting every fact that increases a sentence
to the jury or vesting the sentencing judge with broad discretionary authority to account
for differences in offenses and offenders.” Thus, the decision of the majority will have far
reaching consequences. 49
In reading these decisions, it can be quite difficult to determine which opinions
are constitutionally fair and truly in the best interest of the populist alone. Surely, it can
be said that when a person is faced with the potential deprivation of their liberty, their
47 Id at 329: Breyer contends this decision creates, “consequences that threaten the fairness of our traditional criminal justice system; it distorts historical sentencing or criminal trial practices; and it upsets settled law on which legislatures have relied in designing punishment systems.” 48 Id at 318. 49 Id at 323.
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primary concern is likely theoretical and not institutional considerations of a procedure’s
practicality. Regardless of the differing opinions, the consequences of this decision did
in fact open the floodgates for further constitutional criticism of the Guidelines.
BOOKER - Sixth Amendment Right to Jury Trial
Blakely and Apprendi focused primarily on the meaning of “statutory maximum”
and the appropriate handling of charges deemed above said maximum. These cases
challenged the Constitutionality of the Guidelines’ procedure in a subtle way directed to
interpretation of the statutory language. United States v. Booker, however, rendered the
death of determinate sentencing procedures under its sixth amendment Constitutional
challenge. The heart of the Guidelines as Congress intended was no longer. Up until
Booker, the sentencing guidelines were mandatory and judges were bound to the
calculations of the presentencing investigation report (“PSR”) so long as Congress and
the Commission had contemplated the issues. The same majority as the two previous
cases decided Booker, thus arguments of Constitutional interpretation were based on
many of the same principles of each respective side. The Booker decision addressed
two main issues: (1) the “merits” decision on the Sixth Amendment; and (2) the
“remedial” decision on how the Guidelines should be interpreted.50 Regarding the
“merits” decision, the Court in a 5-4 decision, upheld the decision in Blakely regarding
the sixth amendment application to the Guidelines and held “the Guidelines violated the
sixth amendment in cases where a defendant’s right to a jury trial is limited.”51
50 See supra note 12 at 618. 51 See supra 27 at 31.
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Given determination made, the Court decided “remedial” decision was necessary
to avoid sixth amendment Constitutional violation when applying the Guidelines. In
doing so, in a “separate majority opinion by Justice Breyer, joined by Chief Justice
Rehnquist, Justice O’Connor, Justice Kennedy, and Justice Ginsberg, the Court
concluded that the two provisions of the [SRA] that have the effect of making the
Guidelines mandatory must be invalidated in order to allow the statute to operate in a
manner consistent with congressional intent.”52 The determined remedy was to excise
two provisions of the SRA [18 U.S.C.A. §§ 3553(b)(1) and 3742(e)] rendering the
Guidelines advisory.” 53 Under this modification of the SRA, a judge at sentencing would
be required only to consider the Guidelines’ suggested range rendered by a defendant’s
presentencing investigative report, and would also be able to use their discretion in
tailoring the sentence to the individual defendant by considering other statutory
concerns. The excision of 18 U.S.C.A. § 3553(b)(1) removed the imposition of
sentences within the guidelines range.54 The excision of 18 U.S.C.A. § 3742(e), cross-
referenced by §3553(b)(1), removed the appellate standard of review it set forth (de
novo).55 The majority held that “appropriate review standards may be inferred” by
several factors in addition to history of relevant appellate practice, which “imply a
practical standard of review already familiar to appellate courts: review for
“unreasonable[ness].”56 For a sentence to be unreasonable under Booker means a lack
52Id at 32. 53Id. 54 United States v. Booker, 543 U.S. 220, 259 (2005). 55 Id. 56 Id at 261.
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of “strong connection between the sentence imposed and the defendant’s real
conduct.”57
In arriving to its remedy of severability, the majority noted that statutes “should
not be invalidated more than is necessary.”58 More specifically, the Court used the
following criteria, “we must retain those portions of the SRA that are: (1) Constitutionally
valid, (2) Capable of functioning independently, and (3) Consistent with Congress’ basic
objectives in enacting the statute.”59 The remainder of the SRA was found to satisfy the
Court’s Constitutional requirements, by requiring:
“judges to consider the Guidelines’ sentencing range established for ... the applicable category of offense committed by the applicable category of defendant; to [consider] the pertinent Sentencing Commission policy statements, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims; to [consider] impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and [to] effectively provide the defendant with needed educational or vocational training and medical care.”60
Various dissenting opinions were filed. In regards to the “merits” decision, Justice
Breyer, joined by three others argued, “nothing in the sixth amendment forbids a
sentencing judge to determine (as judges at sentencing have traditionally determined)
the manner or way in which the offender carried out the crime of which he was
convicted.”61 Therefore, should not be a requirement for such findings to be made by a
jury.62
57 Id at 246. 58 Id at 258. 59 Id at 258 – 259. 60 Id at 259 – 260. 61 Id at 326. 62 Id.
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Justices in disagreement with the “remedial” decision argued that the Court
exceeded its judicial power by overstepping powers specifically granted to Legislature.63
Justice Stevens stated, “While it is perfectly clear that Congress has ample power to
repeal these two statutory provisions if it so desires, this Court should not make that
choice on Congress’ behalf.”64 In support, dissenters deemed this severance scheme
an “innovative” approach and inconsistent with past severability cases where the
Judiciary is not bound by a statutory provision only in a particular case.65 Justice
Steven’s wrote,
“In order to justify “excising” 18 U.S.C. §§ 3553(b)(1) and 3742(e), the Court has the burden of showing that Congress would have preferred the remaining system of discretionary Sentencing Guidelines … to any available alternative, including the alternative of total invalidation, which would give Congress a clean slate on which to write an entirely new law. The Court cannot meet this burden because Congress has already considered and overwhelmingly rejected the system it enacts today.”66
Justice Steven’s also contends ”Congress revealed both an unmistakable
preference for the certainty of a binding regime and a deep suspicion of judges'
ability to reduce disparities in federal sentencing.”67
In continuing analysis of cases that follow, it is important to keep in the forefront
Congress’ principle purpose of the SRA – diminishing disparity. The majority believes
this goal “depends for its success upon judicial efforts to determine, and to base
63 Id at 302-303. (Justice Stevens dissenting states, “The Court's system … frustrates Congress' principal goal in enacting the SRA, and violates the tradition of judicial restraint that has heretofore limited our power to overturn validly enacted statutes.”)
64 Id at 272.
65 Id at 283 -284. 66 Id at 292. 67 Id.
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punishment upon, the real conduct underlying the crime of conviction.”68 The minority
responds by stating, “Congress only wanted judges to consider those characteristics
within the limits of a mandatory system,” since the “existence of sentencing disparities
can be traced directly to the unfettered discretion the law confers on those judges. …”69
Justice Breyer’s and the majority’s interpretation of Congress’ intent could
reasonably given more weight. Justice Breyer, having served on the Commission, was
present during analysis and deeply consideration of Congress’ purposes under the
SRA. Justice Breyer did not agree with the “merits” decision, however, it is not
surprising that he was the one to lead the majority in the “remedial” decision. It seems
fitting that a member of the Commission be the one to correct the Constitutional
problem in a way that did not eradicate the Guidelines altogether and did not engage in
legislative drafting.
It appears Congress and dissenting Justices on “remedial” decision believe
disparity, due to unfettered judicial discretion, cannot be properly addressed without a
mandatory system, however, the Court’s remedial solution did not resurrect total
unfettered judicial discretion. Judges are regulated under §3553(a)(4)70, which requires
consideration of the Guideline ranges, but permits enough discretion to “tailor the
sentence in light of other statutory concerns.”71
68 Id at 223. 69 Id at 296. 70 “(a) Factors to be considered in imposing a sentence.--The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider-- (4) the kinds of sentence and the sentencing range established for—“ (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines-- (i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States CIdode, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or …” 71 Id at 221.
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III. Implications of Booker – Unwarranted Disparity
The Booker decision sparked mass criticism and commentary. 72 Defense
attorneys were thrilled, Judges felt liberated and Prosecutors feared unpredictability.73
The important concern here on out is whether sentencing disparity, Congress’ major
concern, has in fact diminished Post-Booker or not. Before exploring further, it is
important to note that Congress specifically sought out to target unwarranted disparities,
not all disparity altogether. The Commission has pointed out that disagreement exists
on the definition of unwarranted disparity however; “similar treatment for similar
offenders and different treatment for different offenders is the hallmark of fair
sentencing.” 74 Additionally, “unwarranted disparity is eliminated when sentencing
decisions are based only on offense and offender characteristics related to the
seriousness of the offense, the offender’s risk of recidivism, or some other legitimate
purpose of sentencing.”75 The need to eliminate disparity is directly linked to the vital
preservation of the Constitutional guarantees of fundamental fairness, equal protection
and due process all together.
In light of this understanding, studies have shown that disparity among
sentences for similar crimes has increased somewhat after Booker. 76 Since the
Guidelines were initially implemented to eliminate disparity, it is reasonable to conclude
72 See supra note 12 at 628. 73 Mark Hansen, You Say You Want a Revolution: In Booker Plus Five, There’s Been Rumbling But Hardly Rebelling, A.B.A. J., March 2010. 74Fifteen Years of Guidelines Sentencing, Chapter Three: Presentencing, Inter-Judge, and Regional Disparity (2004), http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/15-year-study/chap3.pdf at 79. 75 Id at 80. 76 See supra note 12 - Letter Update 2014 at 71.
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that unwarranted disparity issues most likely arise when sentences fall outside of the
suggested Guideline range for a particular case. According to the Commission’s most
recent data report for 2014, 50.5% of sentences fell below Guideline range and only
6.7% fell above guideline range.77 The percentage of Government sponsored below
range sentences has shown a steady increase since 2009 with the degree of sentence
time decreasing (according to the crime).78 A similar, yet slightly less increased pattern
is seen with unsponsored below range departures, most recently reported at 35.1% of
cases.79
In 2007, the Supreme Court addressed how sentencing decisions should be
reviewed in more detail. The Court held that abuse of discretion standard of review
applies to appellate review of sentencing decisions.80 Appellate review follows two
general steps: (1) ensure no significant procedural error occurred (such as failing to
consider the § 3553(a) factors, … or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range) and (2)
if decision procedurally sound, then consideration is given to the substantive
reasonableness of the sentence imposed under the abuse-of-discretion standard.81
Included under § 3553(a) factors, are the required considerations in order to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct when imposing a sentence. Additionally, under
77 U.S. Sentencing Commission Preliminary Quarterly Data Report, 3rd Quarter Release Fiscal Year 2014, http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/quarterly-sentencing-updates/USSC-2014-3rd-Quarterly-Report.pdf at 1. 78 Id at 12. 79 Id at 12 and 22. 80 Gall v. United States, 552 U.S. 38, 51 (2007). 81 Id.
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§3553(e) a Judge may deliberate departing downward, below a suggested statutory
minimum, upon motion of the government, by considering a defendant’s assistance in
the investigation or prosecution of another person who has committed an offense.
Appellate standard of review is important to understand when assessing the disparities
in statutory interpretation among different and even same jurisdictions. Those
interpretations directly effect the determination of a sentence’s reasonableness.
IV. Substantial Assistance Constitutional Concerns
Numerous and notable Constitutional challenges have involved sentences where
Government sponsored substantial assistance82or §3553(e) consideration was applied
at sentencing. Constitutional challenges are based on violations of both substantive and
procedural due process rights83, separation of powers doctrine84, and equal protection
clause85 . Claims of due process violation and separation of powers doctrine are
generally based on the argument that prosecutors possess excessive discretion in
deciding whether to sponsor cooperation efforts or not, in light of the fact that decisions
not to sponsor were unreviewable.86 The courts have held prosecutorial discretion is not
excessive thus Constitutional given the historic discretion afforded prosecutors through
82 Under §5k1.1 the government has the discretion to file a motion for a downward departure based on a defendant’s substantial assistance to the government in an ongoing criminal investigation or prosecution. 83 See United States v. Doe, 934 F.2d 353 (D.C. Cir 1991), United States v. Donatiu, 922 F.2d 1331 (7th Cir. 1991), United States v. Levy, 904 F.2d 1026 (6th Cir. 1990). 84 See United States v. Spillman, 924 F.2d 721 (7th Cir. 1991), United States v. Huerta, 878 F.2d 89 (2d Cir. 1989), United States v. Ayarza, 874 F.2d 647 (9th Cir. 1989). 85 See United States v. Horn, 946 F.2d 738 (10 Cir. 1991), United States v. Musser, 856 F.2d 1484 (11th Cir. 1988). 86 See supra notes 76 and 77.
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charging and bargaining powers.87 Following Booker, “courts have held that judges now
have the flexibility to order §5k1.1 downward departures even in the absence of a
government motion.”88 For example, the Second Circuit stated,
“In formulating a reasonable sentence a sentencing judge should take under advisement any related arguments, including the contention that a defendant made efforts to cooperate, even if those efforts did not yield a government motion for a downward departure pursuant to §5k1.1.”89
Additionally, “the Eighth Circuit has reversed sentence because the trial court failed to
consider its post-Booker discretion to find grounds for substantial assistance departure
even in the absence of a government motion.”90 Despite the advancements made
through the decisions of various District Courts, prosecutorial discretion in this area is
still expansive, notwithstanding the fact that the decision to grant such government
motion occurs at punishment phase of a trial distinguishable from discretion exercised
at the beginning of a trial through charging and plea bargaining powers. Furthermore,
pursuant to the most recently published Guidelines manual by the Commission,
sentencing courts are still advised that “substantial weight should be given to the
government’s evaluation of the extent of the defendant’s assistance.”91
Equal Protection Clause Violation
The third general Constitutional argument of equal protection clause violation
appears to be more scarcely addressed. “Frequently there is a genuine disagreement
87 Id. 88 See supra note 12 at 651. 89 United States v. Fernandez, 443 F.3d 19 (2d Cir. 2006). 90 See supra note 12 at 651, and see United States v. Lazenby, 439 F.3d 928 (8th Cir. 2006). 91 USSG §5k1.1, comment. (n.3)
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between the defense and the government on the level of assistance that a defendant
can provide.”92 The challenge to substantial assistance statutes is that violation occurs
“because minor participants and those of relatively low culpability are without sufficient
knowledge to be of any substantial assistance to authorities, and therefore, cannot
benefit from the departure.”93 Additionally, the ability to assist may depend on whether
the government already acquired the information a defendant has to offer, regardless of
the information’s good quality. This situation is also common for lower level defendants
in criminal schemes when the top tier defendants begin to cooperate with authorities
long before lower defendant’s are captured or surrender. When this scenario occurs, the
top tier individual has likely exhausted most of the information to be given. This problem
has been coined the “Cooperation Paradox” created when
“the highly culpable offender is the best placed to negotiate a big sentence break, and minor players, peripherally involved and with little knowledge or responsibility, have little to offer and thus can wind up with far more severe sentences than the boss.”94
The way an ordinary person envisions criminal responsibility is trumped by the
paradoxical result of less culpable defendants receiving longer sentences than more
culpable defendants.95 This paradox also frustrates the consideration of the very factor
the Court has deemed crucial to avoid unwarranted disparities – relevant conduct.
92 See supra note 12 at 659. 93 Lee, Cynthia Kwei Yung, Prosecutorial Discretion, Substantial Assistance, and The Federal Sentencing Guidelines, 42 UCLA L. Rev. 105, 138 (1994). 94 Schulhofer, Stephen J., Rethinking Mandatory Minimums, 28 WAKE FOREST L. Rev. 199, (1993) 95 See supra note 86, citing supra note 87.
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Results have rendered sentencing differences of 3 years and even 25 years
between defendants of higher and lower culpability.96 Currently, the Commission has
reported 51.4% decrease from Guidelines minimum due to §5k1.1 considerations.97
Assuming generally that lower level offenders with no opportunity for substantial
assistance considerations receive Guidelines minimum sentences at the very least, the
potential of disparity among co-defendants or defendants in related cases is grave.
Despite the disparate results, neither §5k1.1 nor §3553(e) have been deemed
unconstitutional since “the statute does not discriminate on the basis of race or a
suspect class” and therefore, it must be upheld “in the absence of persuasive evidence
that Congress had no reasonable basis for drawing the lines that it did.”98 In 2010, the
Eleventh Circuit cited Musser stating,
“Congress' desire to ferret out drug kingpins is obviously served by encouraging those with information as to the identity of kingpins to disclose such information. Hence, there is a rational relationship between the statute and Congress' purpose. Moreover, all minor figures, are treated similarly by the statute, which belies any claim of unequal treatment.”
Whether or not substantial assistant considerations are ever found
unconstitutional for violating principles of fundamental fairness and/or an
offender’s right to liberty without due process of law, “it is still important to
recognize the generated disparity since it highlights a clear hindrance rather than
96 See supra note 87, n. 69, citing United States v. Brigham, 977 F.2d 317 (7th Cir. 1992), and United States v. Evans, 970 F.2d 663, 676 – 78 & n.19 (10th Cir. 1992). 97 U.S. Sentencing Commission Preliminary Quarterly Data Report, 3rd Quarter Release Fiscal Year 2014, http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/quarterly-sentencing-updates/USSC-2014-3rd-Quarterly-Report.pdf at 19. 98 See supra note 86, citing United States v. Musser, 856 F.2d 1484, 1487 (11th Cir. 1988).
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service to the goals of Congress.”99
The Guidelines provide two different sections that arguably might equalize
substantial assistance disparities.100 Statistical analysis provides the reality of
such potential equalization. According to the most recent data provided by the
Commission, §3B1.2 adjustment for role (1 to 4 level decrease) was applied to
6.9% of cases in fiscal year 2013.101 The Commission does not provide specific
statistics regarding application frequency of §3553(f) safety valve at this time. In
fiscal year 2013, §5k1.1 departure was applied to 12.6% of cases.102 This shows
that substantial assistance departures are applied almost twice as much as role
adjustments. The median decrease in months for a §5k1.1 application in 2013
was 50 months (about 4 years).103 By looking at the Sentencing Table applicable
in 2013 in considering available adjustments under §3B1.2, a one level decrease
from 36 to 35 (for example) could render a decrease of 20 months (about 1.6
years).104 Similarly, a 4 level decrease from 36 to 32 could render a decrease of
99 See supra note 86. 100 USSG §3B1.2 (Mitigating Role for minimal or minor participation), and USSG §3553(f)(1) – (5)(Safety Valve provision for drug related offenses applied if subsections to (f) are met, including no leading role). 101 Chapter 3 Adjustments - Guideline Calculation Based, http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/guideline-applicationfrequencies/2013/Chapter_Three_Adjustments_Guideline_Calculation_Based.pdf at 2. 102 U.S. Sentencing Commission Preliminary Quarterly Data Report - Fiscal Year 2013, http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/quarterly-sentencing-updates/USSC_2013_Quarter_Report_Final.pdf at 1. 103 Id at 19. 104 Sentencing Table, http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2013/manual-pdf/Sentencing_Table.pdf.
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67 months (about 5.6 years).105 The higher the offense level is the greater
difference in suggested months for sentencing. Ultimately, these are just
hypothetical ballpark figures, but the difference in percentage of applicability
between the two is certainly alarming enough to question the fundamental
fairness of the rendered sentences with these considerations. It appears the
rational relationship between statute and Congress’ purpose in this context
warrants these disparities. Case law shows that courts are unwilling to consider
this disparate impact in deciding a sentence. 106 Substantial assistance
considerations also appear to carry greater weight than the deterrence purpose
of sentencing.
Proposed Change
Given the necessity of vital informant rendered information through
substantial assistance, a proper solution would allow such assistance but would
also address the wide range of disparity caused at sentencing. Many in the legal
community have presented suggested solutions. In considering the purposes
Congress sought to address through the enactment of the Commission,
particularly limiting and structuring the discretion exercised by Judges, a level
adjustment system seems to be the most fitting solution. This disparity could be
“better controlled if a set 3 to 5 level discount were implemented to restrict the
105 Id. 106 See United States v. Cruz-Mejias, 396 Fed.Appx.593 (11th Cir. 2010) (Limiting downward departure sentence to only those defendants who could provide substantial assistance did not violate equal protection rights of defendant).
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extent of the departures awarded.”107 This application would function the same
way as other structured aspects of the sentencing calculations, such as the
previously discussed role adjustment (allowing a 1 - 4 level reduction based on
defined requirements for each). It would also continue to allow individualized
assessment of each offender through fettered judicial discretion. The disparity in
the frequency in which it is applied would still exist as a result of the compromise
made in retaining the possibility of assistance. Despite this frequency, this
system could structure departures in a way that preserves fundamental fairness
and diminishes the distasteful weight given to cooperation superior to the
fundamental sentencing purpose of deterrence.
CONCLUSION
A reasonable person would not expect complete elimination of disparity in
sentencing, whether it be warranted or unwarranted. Judges are humans and will
inevitably exercise individual philosophies on punishment, involving any given
amount of influence for any particular purpose of sentencing. Congress’ utopian
ideologies for sentencing procedures seem impractical at its full extent. However,
after in depth consideration of this legal arena, it appears the Commissions
Guidelines, coupled with the elimination of the mandatory application provision
provide a satisfactory and generally equitable system. With that being said,
Congress (through frequent studies by the Commission) should not become
complacent. It is their Constitutional granted power and duty to see that the law it
107 Lee, Cynthia K.Y., The Sentencing Court’s Discretion to Depart Downward in Recognition of a Defendant’s Substantial Assistance, 23 Ind. L. Rev. 681, 684 - 685 (1990).