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Judge: Follow Guidelines in All But Exceptional Circumstances

U.S. District Court Judge Paul Cassell has rushed to press with the first post-Booker decision and it's awful. You can read it here. As one lawyer e-mailed us, "Read it and Weep. The radical right has been planning for this." Two paragraphs in Cassell's opinion tell the story:

To be sure, reasonable minds may differ about whether the Guidelines are the best standard against which to measure the fairness of sentences. It is no secret that some judges believe sentences are too harsh, although the degree of judicial dissatisfaction with the Guidelines is easy to overstate.81 The fundamental fact remains, however, that the Guidelines are the only standard available to all judges around the country today. For that reason alone, the Guidelines should be followed in all but the most exceptional cases.

For all these reasons, the court concludes that in exercising its discretion in imposing sentences, the court will give heavy weight to the recommended Guidelines sentence in determining what sentence is appropriate. The court, in the exercise of its discretion, will only deviate from those Guidelines in unusual cases for clearly identified and persuasive reasons. This is the only course that implements the congressionally-mandated purposes behind imposing criminal sentences.”

So we've already gone from the guidelines being advisory only to they should be given heavy weight and applied in all but exceptional circumstances? If so, Booker and FanFan, and more importantly, Blakely, are meaningless, and defendants are worse off than before they were decided, because we are back to Judges deciding sentencing facts rather than juries and judges deciding and imposing guideline enhancements in all but exceptional cases, a term that is bound to vary greatly from judge to judge. So much for reducing disparity in sentencing.

Whatever happened to the Booker court's finding this violated the Sixth Amendment? That sure didn't matter for long. Seen under Cassell's lamp, even the change in the standard of appeal to "reasonableness" will end up hurting defendants. After getting a guideline sentence based on facts decided by a judge without a jury, the issue on appeal will be was it unreasonable for the judge not to find the case exceptional thereby justifying the non-application of or deviation from the guidelines. Right now, all we have to show for a departure is that the case is "outside the heartland." Cassell's method will move that burden up to "exceptional."

Law Professor Doug Berman of Sentencing Law and Policy thinks its a great opinion. Sam Heldman (known to the blogosphere as Ignatz) says it's terrible.

Look at the timing. We waited 4 1/2 months for a decision in Booker and FanFan. But Judge Cassell was able to pump out a opinion on Booker in 24 hours. Sounds like it was pre-written and he just used the opinion to support his point of view, rather than what he should have done, which was formulate a point of view after reading the decision.

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    Re: Judge: Follow Guidelines in All But Exceptiona (none / 0) (#1)
    by Che's Lounge on Fri Jan 14, 2005 at 12:26:09 PM EST
    Exceptional- adj. 1. having big money connections.

    Re: Judge: Follow Guidelines in All But Exceptiona (none / 0) (#2)
    by wishful on Fri Jan 14, 2005 at 03:12:58 PM EST
    So, did this just neuter the 6th Amendment Blakely considerations? Can judges now sentence in any range, even without the aggravators (you know, against the jury and beyond reasonable doubt doctrines)? What I'm asking is: Blakely essentially called the interim guideline sentences statutory maxima. So the judge needed to have a guilty plea or jury finding for each crime and its matching sentence. If a crime wasn't charged and guilt assigned beyond a reasonable doubt, the sentence was proscribed by the guidelines. Now it seems that a crime of illegal lane change could garner the sentence for murder if the judge was so inclined, without offending the 6th Amendment. If the sentence is outside the range, all the judge needs to do is offer an explanation. On appeal, the defendant would have to prove unreasonableness for a remand. As if! I don't think justice is really a goal here. Am I wrong?

    Re: Judge: Follow Guidelines in All But Exceptiona (none / 0) (#3)
    by wg on Fri Jan 14, 2005 at 05:04:50 PM EST
    this judge is either totally confused or I need a better explanation of what Booker is. My understanding was that Booker delegalized the situation where under previous system judges could make any (uncharged) adverse determination and once such determination was made, he/she/it had to apply sentencing guidelines to it. In other words it delegalized penalizing defendants for acts that have not been properly adjudicated by jury. This judge seems to be saying -- SC did not take away my right to find defendants guilty of uncharged acts, I can still do it, and I'm still free to penalize them accordingly. Using guidelines if I feel like it. Corruption of SC intent?

    I'm with wg on this. I'm also surprised this decision came out of a USDC in NY. It appears to go to great lengths to twist the clear logic of the USSC decision, so far, in fact, that I believe that one can read this recent decision as doing PRECISELY what the USSC has directed the USDC judges NOT to do: become hidebound by these guidelines. This fight is not even close to being over since we have yet to see how Congress is going to weigh in on this. And this is NOT about the alleged fairness re the discretion of USDC judges in sentencing. This is all about a turf war between the USSC and Congress. Always has been.

    Re: Judge: Follow Guidelines in All But Exceptiona (none / 0) (#5)
    by wishful on Fri Jan 14, 2005 at 10:26:58 PM EST
    After reviewing some of the sentences being handed down in the military reported here at TL, maybe the military justice system can be used instead of our dysfunctional civil/criminal "justice" system.

    Look at the facts in this case. The defendant admitted to all the guideline facts. That means that if the Stevens remedy had been in effect the Judge would have been REQUIRED to use the guidelines. Under that standard the defendant would still have gotten at least 188 months and could have gotten up to 235 months. At least under the Breyer standard the Judge could have given the defendant less than 188 months.

    The courts will use these only for guidelines until they decide to bust someone for possession of marijuana and then they will rely on the decision to add extended sentencing above and beyond what the law calls for. Seig Heil!