Beckles Asks SCOTUS To Strike Down Sentencing Guideline For Vagueness
November 29, 2016 (Fault Lines) – Vagueness and ambiguity are evergreen drafting problems. After drafting a great many contracts, resolutions, and even briefs, everyone is forced to capitulate that vagueness and ambiguity lurk in most documents. Moreover, sometimes exacting specificity is avoided not because of sheer tedium, but because some small measure of vagueness is desirable.
For example, the complexity, sophistication, adaptability, scope of harm, and numerosity of victims of white collar crimes tend to require more broadly written statutes. In these situations prosecutors are entrusted to tailor charging decisions, and courts serve as a backstop, policing prosecutors’ charging decisions. Otherwise, the con men are always one new scheme ahead of Congress. On the other hand, broadly drafted statutes in other areas make less sense and are afforded less deference.
Putting those cases aside, vagueness is still an ever-present problem in criminal statutes. Take the word ‘violent’ for example. It would seem like a word about which everyone could agree what it means. Nearly everyone would probably agree that using a credit card skimmer and making fraudulent credit cards is nonviolent. While some consider drug crime to be nonviolent, others do not. The devil, as they say, is in the details.
Congress created years and years of litigation over how it defined ‘violent felony’ through the inclusion of the so-called residual clause: “…otherwise involves conduct that presents a serious potential risk of physical injury to another.” During that time, the Court addressed whether either a DUI or fleeing from the police were violent felonies, with honest disagreement between parties, courts, and judges.
Eventually, the Court agreed to put a bullet in this clause:
This analysis here is rather involved, but suffice it to say, Scalia pointed out that not even the Supreme Court’s own “repeated attempts and repeated failures to craft a principled and objective standard” to interpret the ACCA’s residual clause — and he named them all — had been satisfactory. This confusion led to “numerous splits among the lower federal courts, where it has proved nearly impossible to apply consistently.” What this meant in practice, given federal judges’ preference for bright-line rules and predictability, was that sentences where the ACCA was triggered were all over the place depending on the state you lived — a kind of “hopeless indeterminacy” that violates the Constitution.
“By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” Scalia wrote, “the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.”
And there is nothing like success at the Supreme Court to set off a wave of ‘me too’ CDL and pro se filings, which here was proceeded with manna from heaven:
A few days after the decision came out, the Supreme Court took action in dozens of cases implicating the now-invalidated part of the ACCA, vacating prior judgments and instructing lower courts to give them new sentences, “consideration in light of Johnson.”
And in a hopeful post, law professor and sentencing expert Douglas Berman predicted that thousands will benefit from Johnson, both prisoners wrongfully sentenced as armed career criminals and those sentenced as “career offenders,” a designation under the Federal Sentencing Guidelines with its own interpretive vagaries.
Later, the Court was even willing to bend the rules for review for folks wrongly tagged under this statute—perhaps something of a make-up call. But these cases did not give every career, violent felon a lower sentence. As it turned out, similar language was present in other places:
Johnson was a big deal because ACCA’s residual clause wasn’t the only one. There are two other major ones, the Federal Career Offender Guideline and one in the Immigration and Nationality Act (Section 16(b)). The Career Offender Guideline is similar to ACCA, in that under federal sentencing law if a defendant has a certain class of conviction and two prior convictions for qualifying crimes, including residual crimes of violence, he gets hit with a presumptive 15-year sentence. Under Section 16(b), if someone has a conviction for a residual crime of violence and is not a U.S. citizen, he is presumptively removable from the country and gets almost no procedural protections.
The feds rarely take a single bullet approach to anything, as evidenced here. Now the next big fight is over the Federal Sentencing Guideline’s Career Offender Guideline. Here’s what the Eleventh Circuit said about the issue:
The Supreme Court’s decision in Johnson — in which the Supreme Court struck down, as unconstitutionally vague, the residual clause of the Armed Career Criminal Act (“ACCA”) — does not control this appeal. Beckles was sentenced as a career offender based not on the ACCA’s residual clause, but based on express language in the Sentencing Guidelines classifying Beckles’s offense as a “crime of violence.” Johnson says and decided nothing about career-offender enhancements under the Sentencing Guidelines or about the Guidelines commentary underlying Beckles’s status as a career-offender.
That’s most of the analysis in the short opinion. That’s all the more curious given that this created a 5-1 circuit split. Most of the federal defender’s brief focuses on retroactivity and a comparably shallow analysis as to why Johnson applies the Sentencing Guidelines.
You see, Johnson was about a statute, the ACCA. On the other hand, Beckles is complaining about a sentencing guideline created by the sentencing commission. The former establishes the crime and sets out the absolute range of punishment, and the latter, in a non-binding fashion, guides the sentencing judge in selecting a sentence within the lawful range. Moreover, as Caleb points out, the statute and the guideline aren’t identical.
The Department of Justice points out that the Sentencing Commission has already deleted the clause, rendering Beckles’ complaint of limited general importance. Of course, it’s pretty important to the petitioner, but the Supreme Court is usually considered far above the concerns of a single person. In that light, it makes sense why the federal defender cared so much about retroactivity—it’s the only way Beckles gets the benefit of the change.
But retroactivity is the second hurdle. The first one is whether the Supreme Court’s precedent on the ACCA controls a guideline. Obviously, they are two different rules promulgated by two different rule-making bodies. And while they are both generally aimed at punishment, they do so in critically different ways.
The ACCA created mandatory minimums, below which no sentence could be imposed. In contrast, the guidelines do not authorize any additional punishment; they merely offer guidance. Understandably, you have a constitutional right not to be charged with vague crimes or otherwise have prison exposure linked to vague language. Such statutes would give the government an unchecked ability to arrest and charge people with crimes. Without trying to find a citation to the Federalist Papers, it’s fair to characterize that as not an idea consistent with our limited federal government.
But that’s not the case with the Guidelines. The defendant has been charged and found guilty of a substantive crime, which also set the range of punishments that the judge can choose from. It bears repeating that the Guidelines are advisory and not strictly binding. So, the Guidelines do not expose the defendant to any additional punish, nor do they mandate certain punishments. The source of authority and the scope of the statute and guidelines makes a key difference.
Arguably, the Guidelines, like white collar crime statutes, need to be somewhat broadly worded. They too are intended to capture the wide range of human behavior and then reduce it down to two axes. Defining a broad category of behavior, such as “violent felony,” is bound to have some fuzziness.
The other choice is to lump more dissimilar conduct into categories together, into something less descriptive and list like, which would likely result in less individualized, less ‘fair’ sentences. And the broader, more inclusive categories would end up being just as, if not more, vague. For example, possessing an illegal shotgun, resisting arrest, fleeing, and murder would end up lumped together under some heading. But still the matching of elements would be imperfect and the application would be uneven and probably under-inclusive. So, even with the vagueness, the Sentencing Guidelines may not be the best form of sentencing, but it’s better than all (most?) the others.