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Supreme Court Decisions: Federal Sentencing Guidelines and Immigrant Imprisonment

One of the Most Significant Criminal Cases in Years,

William F. Fox Jr.
Dean of the Columbia School of Law at The Catholic University of America, Practicing Professor and Practicing Attorney
Wednesday, January 12, 2005; 4:00 PM

William F. Fox Jr., dean of the Columbus School of Law at The Catholic University of America, law professor and practicing attorney, was online Wednesday, Jan. 12, at 4 p.m. ET to discuss today's Supreme Court ruling about federal sentencing guidelines.

Read the story:Supreme Court Says Federal Sentencing Guidelines Not Mandatory (Post, Jan. 12)

A transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.


William F. Fox: Good Afternoon,

Virtually everyone who has an interest in criminal sentencing has eagerly awaited the two decisions (Booker & Fan Fan) that the Supreme Court announced today. The Court has made "advisory" sentencing rules that have been in place for more than 15 years and that have rigidly controlled the entire federal criminal process. The rules ("guidelines") are now "advisory." But that will create additional problems for lower courts.


Washington, D.C.: Will those federal prisoners sentenced under the guideline system be able to appeal their sentences now?

William F. Fox: This question addresses a separate constitutional issue known as "retroactivity." Right this minute, the Court's Booker/Fan Fan decision governs only those two cases and any sentencing matters in the future. In all likelihood, the Court will have to issue a separate decision, in yet another case, on retroactivity. However, in my opinion, prisoners sentenced under the guidelines in the past will have to be given the opportunity to re-argue their sentences in light of the guidelines being only "advisory." This will likely have the effect of sending thousands of federal criminal cases back to the original sentencing court for a fresh sentencing proceeding.


Catholic University of America, Columbus School of Law, Washington, D.C.: Dean Fox:

Now that the Supreme Court has in essence reduced the sentencing guidelines to "guidelines-light," what do you think is the next step for those concerned about one of the original causes of the guidelines: the random nature of sentences across different forums?

William F. Fox: Right this minute, persons concerned with uniformity across the country can only hope that the various federal district judges look closely at and stay in touch with sentences handed out by their brother and sister judges around the country. As soon as the Court made the guidelines "advisory" it negated any kind of mandatory uniformity around the country, leaving the individual judges free to make up their own minds as to a sentence in a particular case. However, the sentencing statute does contain issues and considerations that all judges should take into account in pronouncing sentence. These issues and considerations may produce *some* uniformity simply because all judges will examine them. These considerations include the sentencing "ranges", the need for just punishment, etc.


Washington, D.C.: Hi, Dean Fox. What do these decisions mean for the future of the federal sentencing guidelines? Are the courts going to scrap them altogether?

William F. Fox: Today the Court was desperately trying to avoid invalidating the entirety of the sentencing guidelines. They have tried to preserve some portions of the statute while making the guidelines merely "advisory." In my opinion, this just can't work in light of the two earlier cases, Apprendi and Blakely, which require that all facts taken into consideration in sentencing be proved to the jury beyond a reasonable doubt. I believe the guidelines are now nearly worthless. It's now time for Congress to get back into this fray if it wants to try to preserve some semblance of the old guidelines.


Washington, D.C.: What problems do the advisory opinions create for lower courts? Shouldn't the lower courts just follow the opinions?

William F. Fox: The decision(s) announced today essentially tell individual federal judges that they have to make up their own minds as to sentences in individual cases and certainly are not "bound" to follow the dictates of the guidelines. This takes us very nearly back to so-called "indeterminate" sentencing--the very thing that the guidelines were intended to get rid of.


Beaumont, Tex.: Do you think Congress will act to restore the mandatory nature of the guidelines, perhaps by requiring everything to go in front of the jury?

William F. Fox: This is something that Congress could very easily do. Requiring that all facts that enter into the sentencing decision be decided by the jury beyond a reasonable doubt conforms to the holdings in Apprendi and Blakely (the two earlier Supreme Court decisions affecting state courts). Individual factors in the guidelines could be used so long as they are proved beyond a reasonable doubt. It's hard to say what Congress might to. The original sentencing guidelines were one of the first comprehensive forays by Congress in federal court criminal sentencing.


Washington, D.C.: Can Congress do anything to prevent the "retroactivity" issue, or will the courts simply be flooded now?

William F. Fox: As I see it there is virtually nothing Congress can do to prevent earlier-sentenced prisoners from seeking review of their sentences in light of Booker/Fan Fan.


Washington, D.C.: What effect, if any, do you think today's decisions will have on cases resolved by way of a plea bargain?

William F. Fox: A plea bargain is an instance in which a defendant essentially waives his/her constitutional right to a trial. But he/she still has to be sentenced. It may reduce the number of occasions when a defendant is willing to negotiate a plea. However, if a defendant does enter into a plea agreement he/she not only waives his/her right to a trial but also waives his right to the Booker/Fan Fan prerogatives.


Washington, D.C.: I am a layperson, so I do not understand the effect of the Supreme Court's decision on federal sentencing guidelines. What will a judge do differently that he/she did before today's decision? Will this change trials and plea bargains in some significant way?

William F. Fox: An individual judge now has FAR more freedom of action in setting a sentence in a particular case. Under the now-invalidated "mandatory" guidelines, an individual judge had almost no freedom to make up his/her own mind.


Washington, D.C.: Do you think that this will dramatically change how judges sentence people or do you think for the most part judges will continue to use the guidelines except for in special situations?

William F. Fox: Judges will, probably by habit, refer to the guidelines but not be controlled by them. The actual effect on sentencing is hard to predict. Some judges may use this new freedom to issue very harsh sentences; some may use their new freedom to be much more lenient. However, I know a large number of federal district judges and very few of them are totally "soft" on criminal behavior.


New York, N.Y.: Hello Dean Fox,

Today's decision produced rather unusual alliances in both the majority and dissenting camps. Can you talk a bit about this?

William F. Fox: The "head count" on the Court is somewhat surprising--for example to see Justice Ruth Bader Ginsberg on the same side of such as hot issue as Justice Clarence Thomas. The two of them don't often agree. It seems to me that Justice Breyer, who was a member of the original Federal Sentencing Commission, is doing his absolute best to try to "save" at least some little part of the guidelines. What is clear is that a lot of the traditional alliances and combinations of judges on other issues such as capital punishment or abortion are not seen here.


Washington, D.C.: Isn't the result reached today almost the opposite of the result and purpose of the similar Blakely case (which started this whole ball rolling)? State judges cannot use any facts not found by a jury in sentencing, but it seems federal judges have free reign.
Can you comment on this?

William F. Fox: I have two questions that are similar. Two earlier cases, Apprendi and Blakely, require that "facts" that are involved in sentencing (for example, exactly how much narcotics was in the possession of a defendant) be found by the jury beyond a reasonable doubt. This standard applies to all courts. Under today's decisions, this rule continues to apply. I don't think that federal judges can disregard this rule. Under Booker/Fan Fan, if a judge refers to specific facts as the basis for his/her sentencing decision, those facts must be presented to the jury and proved beyond a reasonable doubt.


Alexandria, Va.: What's wrong with allowing judges to use their own judgment? We have seen so many stories of judges feeling their hands were tied and that they were forced to impose overly harsh penalties. What abuses or injustices led to the guidelines in the first place, or is it good they are (in effect) gone now?

William F. Fox: The major goal of the original guidelines was to provide uniformity in sentencing throughout the United States. When the guidelines were being considered by Congress, huge disparities in sentencing were uncovered not only among various federal district courts but also among individual judges sitting on the same court. For example, one judge might give a certain defendant 10 years and another judge (with exactly the same facts) might give that defendant a 2 year sentence. We got these results because under "indeterminate" sentencing Congress would set extraordinarily wide boundaries, say, from 2 to 25 years for a particular crime and an individual judge was okay is he/she stayed within the 2-25 boundary.


Washington, D.C.: How has the composition of the federal bench changed from Democrat appointees to Republican appointees during the time that mandatory sentencing was not recognized as unconstitutional? Are there judges today who feel the sentencing guidelines are too lenient?

William F. Fox: This is one instance in which I don't think a judges' earlier political affiliation makes much difference. Note the fact that Justice Breyer (a Democratic appointee)is very much in favor of the guidelines as originally promulgated and Justice Scalia has said, from the beginning, that they were unconstitutional. I know very few judges who believe that the guidelines are too lenient. Most of them regard the guidelines as either "okay" or perhaps a bit harsh.


McLean, Va.: Does this have any effect on state laws that institute mandatory sentences, i.e., mandatory minimum jail time, license suspensions, etc? Thank you.

William F. Fox: Not necessarily. Today's decision, along with Apprendi and Blakely, simply require solid "proof" of whatever goes into forming a particular sentence.


Sacramento, Calif.: Do you think this decision could be revisited should the Court makeup change?

William F. Fox: It's entirely possible that a change in the Court's makeup could cause a change here, but keep in mind that most judges are dedicated to the principle of stare decisis (i.e., not overturning earlier decided cases). So a new justice (irrespective of his/her personal ideas) might be very reluctant to try to overturn Booker/Fan Fan.

Also, don't lose sight of the fact that a large portion of today's opinion is devoted to asking CONGRESS to take a fresh look at all of this. A new Supreme Court justice might just wait to see what Congress may do, if anything.


Philadelphia, Pa.: Is there any guidance from this opinion on how to handle the inevitable tidal wave of habeas corpus litigation that will come from an invalidation of the guidelines?

William F. Fox: There's very little in the nature of specific guidance. Toward the end of the opinion is a series of statements to the effect that today's decision does not necessarily affect all sentences and that lower courts will not be required to review all previous sentencing decisions, but I predict that your "tidal wave" will, in fact, occur. However we slice this one, lower federal courts are going to be up to their ears in habeas petitions.


Los Angeles, Calif.: How will this decision effect current inmates that are now awaiting in the middle of their appeals?

William F. Fox: As I see it, if a defendant has not yet been sentenced, a court must apply Booker/Fan Fan. If a defendant has already been sentenced, he/she will have to apply to the court that pronounced sentence for a review of that sentence in light of today's decisions--so, in my opinion, virtually all sentences previously announced may be suspect and subject to being reviewed and modified.


Washington, D.C.: Will federal district court judges still have latitude to consider behavior which a jury acquitted a criminal defendant of acquitting in making an assessment of the length of a sentence for the crime for which he/she was convicted?

William F. Fox: Possibly. Keep in mind that under Apprendi/Blakely (the two major cases that predated Booker/Fan Fan, whatever facts the judge takes into consideration must be proven beyond a reasonable doubt. Whatever behavior that was involved in a trial that resulted in acquittal, if it is to be considered in a new setting, must be proved beyond a reasonable doubt. Just because a defendant is acquitted, does not necessarily mean that certain individual facts that underlie that acquittal could not be proven.


Gaithersburg, Md.: I was called to a jury trial, for a sexual assault, in Maryland. The judge stated that his responsibility was to sentence the defendant, once we reached a decision. Our responsibility was to decide the guilt of the defendant. Several potential jurors seemed relieved that they did not need to sentence the defendant.

Would this provision of Maryland law be impacted by the Supreme Court decision? I do not know if Maryland is unique in assigning the duty to sentence to judges.

William F. Fox: Under Apprendi/Blakely as amplified today by Booker/Fan Fan juries are going to be central to the sentencing process. The pronouncement you heard from your judge simply doesn't apply under the current state of the law. Judges will still make the final decision on "how many years." But the jury will decide all "facts" that enter into his/her determination of length of sentence.


Herndon, Va.: Why is it more constitutional for a judge to apply his arbitrary judgment based on his assessment of facts not decided by a jury than it is for a judge to be required to apply a standard set of rules based on his assessment of facts not decided by a jury?

William F. Fox: I know it sounds somewhat simplistic but in deciding Apprendi and Blakely, the Court decided that the 6th Amendment of the U.S. Constitution requires all facts (whether they enter into the basic question of guilt or whether they enter solely into the question of sentence) to be proved beyond a reasonable doubt. I don't agree that today's decision permits a judge to "assess" facts not found by a jury.


Washington, D.C. With today's decision on sentencing, federal judges can still use non-jury findings to increase sentences, but state judges cannot. To me, this seems unfair to the states, what justification does the court have for this?

William F. Fox: After today's decision, judges can refer to but are not required to abide by the considerations stated in the federal sentencing guidelines. When a judge refers to an underlying fact as part of his/her sentencing decision, that fact must be presented to and proved to the jury. As I read today's decision, findings not presented to a jury may NOT be used to establish sentences. One of the things that today's Court was trying to do is harmonize the earlier Apprendi/Blakely decisions with the federal sentencing guidelines. Essentially, the Court is saying that there is to be very little difference between the manner in which sentences are set in state court as compared with federal courts.


washingtonpost.com: The discussion is over. We thank Dean Fox for being with us today.


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