While scanning the law reviews over at CoOp for something that might keep me interested long enough to finish my lunch, I stumbled across a note by William & Mary 3L David C. Holman entitled Death by a Thousand Cases: After Booker, Rita, and Gall, the Guidelines Still Violate the Sixth Amendment.  The first part of the title seemed intriguing, sufficiently so to make me ignore the second part.  I decided to read.

For the most part, the note described what anyone in the trenches has long understood to be the case, that while the Supreme Court has tried to nudge the judiciary away from the Federal Sentencing Guidelines, they remain largely as entrenched as ever.  Of course, Holman is far too young to remember how judge after judge, circuit after circuit, rejected the guidelines through 1989 as an unconstitutional usurpation of their authority and responsibility, the Supreme Court held otherwise. 

Since then, a generation of federal judges have come to wrap themselves in the guidelines like a cape of invincibility.  Sentence within the Guidelines and you are protected from harm.  Remember that few federal judges come to the bench with any criminal law experience, or any particular sense of understanding about their role in the criminal justice system.  They may be extraordinarily smart and experienced in their area of practice before hand, but criminal law is an entirely different field from others.  The totality of their exposure to criminal law was learned on the bench under the Guidelines.  Other than that, they were probably like most people, unsympathetic toward those accused of crimes and strong believers that law enforcement was bulwark of society, to be respected and given the benefit of the doubt.

The idea behind the Guidelines was simple, creating uniformity across the nation to “fix” the problem of purported wild sentencing disparities from shore to shore.  It promoted a notion of sentencing fairness by sentencing everybody to the worst possible sentence and refusing to permit judges to consider the legitimate sentencing factors of 18 U.S.C. §3553.

David Holman argues that for all the effort of Booker, Rita and Gall, little has changed.  He complains that the trilogy was too ambiguous to serve their purpose of letting the circuits know that advisory means advisory.  While I might substitute the word “subtle” for ambiguous, the trilogy failed to give the necessary smack across the face that sent the clear message that the era of the Guidelines was over.  They remain a port in a storm.

But more importantly, Holman correctly notes that the Department of Justice remains wedded to the Guidelines.  Prosecutors have always loved them, as their wonderfully harsh penalties have served the government well as a wedge to turn defendants into snitches and scare them away from the exercise of the right to trial.  The risk can be so great that “rolling the dice” is truly a crapshoot.  As much as our executive branch loves the Constitution, the last thing it wants us to do is use it, which would make them have to work really, really hard.  Anything that allows them to tout freedom while rendering its exercise too grave a risk receives our government’s support.

Holman, however, takes his argument to a different place when he blames three groups for allowing the “unconstitutional” use of the Guidelines to continue:  the Probation Officer, the prosecutor and the defense lawyer.  While he is absolutely correct about the first two, he completely misses the point as to defense lawyers.

The complaint about probation is that its Presentence Report is a recitation of the applicable Guidelines, and though they would deny it, based solely upon the government view of the facts.  If you’ve never seen a PSR, it can be a sickening report, where every word uttered by an agent appears to be undisputed gospel.  Probation is supposed to be neutral.  Probation believes itself to be neutral. It’s not. Not even close.  And they will never understand why.

As for prosecutors, they are under orders from Washington to rely on the Guidelines.  In fact, any variance below needs special permission from Washington.  And frankly, why should they bother?  They’ve got the Guidelines.  It makes their life easy and simple.  Why complicate life?

But defense lawyers have no say in the process.  Holman says that defense lawyers haggle over pleas based on the Guidelines, and are therefore enablers of the process.  It’s not because they choose to, but the options for pleas are presented by the Government.  Looking in from the outside, it’s understandable that Holman doesn’t understand the dynamics of plea negotiations.  The defense doesn’t drive negotiations; the prosecution does. 

A defendant has three options when indicted for a federal offense.  Plea, snitch or go to trial.  Should the defendant decide to “cooperate”, he’s subject to doing whatever the prosecution demands upon pain of losing his 5K1.1 letter, which would render his cooperation useless.  If the defendant goes to trial, the guidelines are irrelevant unless and until there’s a conviction, at which point the defense will fight the Guidelines tooth and nail.

But if a defendant is interested in the possibility of a plea, the power shifts to the government.  It is the government that offers the plea, notwithstanding any arguments that the defense may make.  And the plea offer will come in terms of the Guidelines.  It has to, from the government’s standpoint, because that’s their rules.  The defense can disagree all its wants, stamp its feet, demand otherwise, but then there will be no plea.  The parties may haggle over dollar amounts, quantities, time frames, but ultimately the outcome will be squeezed into the Guidelines.  Take it or leave it, buddy.

The best one can expect is plea agreement that stipulates as to the proper application of the Guidelines, but leaves the defense free to argue for a non-Guidelines sentence.  My experience is that the prosecution is becoming less resistant to this approach, and certainly the defense wants as much latitude as possible to argue for a sentence below the Guidelines.  Of course, plea cases such as this aren’t the fodder of much appellate review, and therefore don’t find their way into the research for law review notes such as Holman’s.

Holman’s note presents some great research and some interesting arguments and proposals, something that would be worthy of remembering when preparing to argue why a sentence is unconstitutional.  But don’t blame the victim for having no choice in being the victim.  No defense lawyer chooses the Guidelines as the basis for haggling over a sentence.  They are rammed down our throats. 

The better question is why one arm of government, represented by the DOJ and the U.S. Attorneys, chooses to ignore another branch of government, represented by the Supreme Court, and demand that the Guidelines remain the rule?  The answer, as far as I can tell, is that until the third branch, Congress, finally does away with the Guidelines or enacts a law that forbids the DOJ from relying upon the Guidelines, they will continue to demand that all plea negotiations utilize the Federal Sentencing Guidelines as the basis.  The option for the defense is take it or leave it.

And there’s nothing the Supreme Court can do about it.