[Sorry, the video for this story has expired, but you can still read the transcript below. ]
GWEN IFILL: Justice Breyer observed today, as we mentioned, that the court’s word is not the last word, but it does reset the course of a long-ranging debate.
Here to discuss that are Douglas Berman, a law professor at Ohio State University — he writes on sentencing law and policy; and Mary Beth Buchanan, U.S. Attorney for the Western District of Pennsylvania. She’s also the director of the Executive Office for U.S. Attorneys.
Mary Beth Buchanan, were you surprised at today’s outcome?
MARY BETH BUCHANAN: The Justice Department is pleased that the Supreme Court did not declare the sentencing guidelines to be unconstitutional.
But we are disappointed that they made the guidelines advisory rather than mandatory as they had been before today’s decision. So overall, I would say that, you know, we are both pleased and disappointed.
GWEN IFILL: But what do you do with that?
MARY BETH BUCHANAN: I think what we will do in this case, we will continue to advise our prosecutors to go into court and to do exactly what Justice Breyer said in his opinion:
To consider the factors set forth in the guidelines in seeking and imposing an appropriate sentence. It is important that we have consistency and fairness and the judges must continue to look at the guidelines in order to achieve that goal.
GWEN IFILL: Doug Berman, were you surprised at the outcome?
DOUGLAS BERMAN: I certainly was surprised at the way Justice Ginsburg switched sides so that we have two different five/four majorities on each question for the court.
GWEN IFILL: So what do you think… was it a good or a bad middle-ground that the court seemed to strike or reach for today?
DOUGLAS BERMAN: I think it really was a middle-ground although it’s a middle-ground that Justice Ginsburg is perhaps the only one who likes.
GWEN IFILL: What do you mean?
DOUGLAS BERMAN: There’s a deep split between the four dissenters in each question the court is facing that it’s a quite deeply divided court. And the dissenters who were concerned about this advisory system, I think, say that this is worse than the old system that we had.
And so what we have is a court struggling to figure out what the new world is going to look like. The only certainty is the old world has to change, but I think Justice Breyer’s opinion for the court is trying to hold on to that old world as much as possible. And he has Justice Ginsburg providing the fifth vote to allow that to happen.
GWEN IFILL: Let me ask you this. I’m going to ask Mary Beth Buchanan as well. Do you think based on your reading of this decision today that the guidelines as they existed are binding anymore? That’s to you, Doug Berman.
DOUGLAS BERMAN: Oh, I’m sorry. I don’t think so at all. I don’t think they can be binding. I think that’s the only thing that the court makes very clear is that applied in a binding way they are unconstitutional. They have to be advisory.
But there’s a big gap between completely advisory and completely binding. And it’s going to be for lower courts to figure out how much authority they are given effect in the application of this quite confusing and uncertain ruling.
GWEN IFILL: How big a gap do you see here, Mary Beth Buchanan?
MARY BETH BUCHANAN: I think that the courts are going to continue to look at the sentencing guidelines in order to arrive at an appropriate sentence. These guidelines have been in effect for 20 years.
And there has been a lot of work that has gone into these guidelines both by the sentencing commission and by the Justice Department and by the private bar in arriving at appropriate sentence ranges and sentencing enhancements.
And the courts must continue to look at that. And if they don’t apply those factors, the appellate court will have an opportunity to overturn verdicts that they deem to be unreasonable. So that would be the standard for appellate court review.
GWEN IFILL: This whole idea of unreasonable verdicts is part of the reason or some people’s view that some verdicts were unreasonable. It’s part of the reason why these guidelines existed at all.
So does the greater discretion of judges in fact have greater discretion here? Doesn’t that equal in your mind a greater disparity in outcome?
MARY BETH BUCHANAN: Well, certainly the decision today does give judges greater discretion because they are not required or mandated to follow the guidelines. But they must still apply those factors.
And we believe that judges or we hope that judges will act in good faith in imposing sentences, but of course when guidelines are no longer mandatory, it does allow for a greater disparity and possibly inconsistent sentences which the guidelines were intended to eliminate.
GWEN IFILL: Doug Berman, what do you make of that? Do you agree with that?
DOUGLAS BERMAN: I agree completely. And it’s worth pointing out that even when the system was mandatory, we saw some pretty significant variations in different parts of the country.
Different appellate circuits had enforced the departure rules more or less stringently and so even a system that was formally binding led to some disparities but not that great because judges had to follow these rules.
Now that we’re in a position that these rules are advisory, I think there is a real reason to be concerned that from jurisdiction to jurisdiction, circuit to circuit, we may see some pretty significant variations on how the rules are going to be applied.
GWEN IFILL: What -
DOUGLAS BERMAN: I’m certain that judges -
GWEN IFILL: Go ahead.
DOUGLAS BERMAN: — as they always do will try to apply the rules in good faith. But Justice Scalia pointed out in his dissent that the advisory approach means that judges can use their own opinion of the purposes of sentencing and come to their own judgment about what is the right sentence in a particular case and the understanding has long been that guidelines were designed to not let individual judges use their own perceptions in each individual case to make a difference, although of course that’s one of the reasons they’ve been criticized is the belief that judges should be able to do that in each individual case.
GWEN IFILL: What is the immediate impact, Mary Beth Buchanan, if you can read that at this point? Are we seeing the gates thrown open, are we seeing the lower courts clogged with appeals? Are we seeing Congress at each other’s throats over it?
MARY BETH BUCHANAN: I would say there are several issues that we will immediately be faced with. First, for the last couple of months we’ve been uncertain on how the court would rule on this issue.
So we have been presenting more facts to the federal grand juries and to the trial juries in assisting them in making their decisions. Now with the opinion that was issued today, we will no longer be required to present these additional facts to the jury.
GWEN IFILL: Overcompensating just in case the law changed?
MARY BETH BUCHANAN: Exactly. And we will now no longer be required to do that because the courts have determined that that was really an unworkable situation. And that will eliminate some of the complexity in some of the charging decisions that we’ve made and in some of the presentations to the jury. So that’s probably the first thing that we’ll see.
Second we’re going to have to take a look at what judges do with this. And we will work with Congress to determine if additional legislative action should be taken.
GWEN IFILL: What do you think about that, Mr. Berman? What would be the first wave of impact from this decision?
DOUGLAS BERMAN: I think all of the ongoing cases, many of which, as Ms. Buchanan highlighted, have been adjusted to anticipate what the ruling might be, those will all have to be sorted out. And there are so many cases at different stages — some at indictment, some with sentence that have gone forward — there have been what have been called Blakely waivers, which a number of defendants had entered into to allow the old rules to apply. I’m curious about whether those are still binding and enforceable now that we’ve been told that the old rules can’t apply.
GWEN IFILL: Is there any way to know how -
DOUGLAS BERMAN: Sorting all those issues out -
GWEN IFILL: I’m sorry to interrupt. Is there any way to know how many -
DOUGLAS BERMAN: — will be very challenging. I’m sorry.
GWEN IFILL: Is there anyway to know how many cases are affected by this kind of ruling?
DOUGLAS BERMAN: I would certainly say thousands, tens of thousands not a wild guess. Acting Solicitor General Paul Clement mentioned that there were 1,200 cases per week sentenced in the federal system. And it’s been over six months, so somewhere in the range of 30,000 cases that they’ve had to try to figure out what’s going on during this period of uncertainty.
GWEN IFILL: Ms. Buchanan, one of the questions that were raised about the sentencing guidelines is they were so hard and fast that there wasn’t a lot of room for mitigating factors like extreme age or extreme youth. Does this change that or should it even change that?
MARY BETH BUCHANAN: I disagree with that statement. I think that judges have always, even under the federal sentencing guidelines, had the ability in certain cases to depart from the sentencing guidelines. What they were required to do was to state their reasons on the record as to why they were departing.
And there were certain factors that judges were not allowed to take into consideration. Now with the court’s decision today, the courts are not bound by specific sentencing ranges so they do have greater flexibility. And I think that they will use that opportunity to depart most likely in greater numbers.
GWEN IFILL: Do you see greater flexibility, Doug Berman?
DOUGLAS BERMAN: Absolutely. And I think that’s one of the areas where we’re likely to see some potential variation. The judges in some courtrooms and some parts of the country may start focusing a lot on the nature of the offender, whether he or she has family circumstances that are compelling, whether he or she has a drug dependency problem.
Those are the kinds of factors that the guidelines had mostly taken off the table. They still could be considered in small ways. But now there certainly is more flexibility to consider them in much more significant ways.
But again, whether the appellate courts over time will allow judges to consider these factors in great number and to a great extent as opposed to the facts of the offense, that’s an uncertainty that I’m looking forward to finding out how the courts deal with.
GWEN IFILL: And just to be clear about this, today’s ruling, Mr. Berman, didn’t have anything to do with, say, mandatory minimums, did it?
DOUGLAS BERMAN: It didn’t formally. And there’s still established law that judges can find the facts to support mandatory minimums. But the court had been split on that issue in the past as well and didn’t speak to it. The old rulings are still in force, but I certainly think some defendants may start trying to challenge that as well.
GWEN IFILL: And does it, Ms. Buchanan, affect the — a number of cases obviously are plea bargained. It doesn’t come ever down to really a jury or a judge ever getting to decide the agreement is cut before it gets to that. Does this affect that at all?
MARY BETH BUCHANAN: Well, I think the defendants are always free to enter into plea agreements. And the sentencing guidelines were very helpful in assisting the parties in projecting what the sentence might be. And I think that the ruling today does cause some uncertainty with respect to negotiating pleas, but I believe that most cases will continue to be resolved through plea agreement.
GWEN IFILL: And, finally, do you believe that in the end what the court has done is kick the can down the road to Congress or to appeals courts?
MARY BETH BUCHANAN: Unfortunately today’s ruling does put into question what courts can do in terms of imposing sentences. And the important thing that Congress intended when they enacted these guidelines 20 years ago was to promote fairness, consistency, and proportionate sentencing. And we hope that that is going to continue to take effect and we will certainly do everything we can within the Justice Department to promote fairness and consistency in sentencing.
GWEN IFILL: Mr. Berman, to Congress or to the appeals courts?
DOUGLAS BERMAN: I would say all of the above. I’d also add to the mix the United States Sentencing Commission. Justice Breyer actually went out of his way in his opinion to highlight the role that the commission is still to play in codifying and providing additional guidance to judges as they try to apply these new standards.
And so I think we’re going to see every branch, including obviously the Justice Department as well as the executive branch, have a role to play in figuring out what these rules mean, who will step up and take a leadership role, and what the new world order will look like depends on a lot of the factors and a lot of the different players.
GWEN IFILL: Doug Berman, Mary Beth Buchanan, thank you both very much.