Vol. 11, No. 36
Covering Cases Published in the Advance Sheets through September 6, 2004

Blakely - The Oral Arguments Are Finished - Now We Await the Supremes

The Patriot Act: Under Attack - But Still Being Expanded

The Growing Fiasco at Guantanamo Bay


Blakely Developments

On October 4, 2004, the opening day of its current term, the Supreme Court heard oral arguments in the two Blakely case it has agreed to consider - namely, U.S. v. Booker, 73 U.S.L.W. 3033 (U.S. Aug. 2, 2004) (No. 04-104) and U.S. v. Fanfan, 73 U.S.L.W. 3073 (Aug. 2, 2004) (No. 04-105).

While it is impossible to predict how the Supreme Court will ultimately rule in these two cases, the general consensus of the lawyers and commentators who attended the oral arguments seems to be that a majority of the Justices will hold that the Federal Sentencing Guidelines cannot be distinguished from the Washington state sentencing scheme that was invalidated in Blakely v. Washington, 124 S.Ct. 2531 (2004); and that therefore large portions of those Guidelines will be held unconstitutional.

Equally clear, most commentators found it far more difficult to predict how sentencing in the Federal system will proceed if judges are no longer permitted to make factual findings, based on a preponderance of the evidence, that increase the sentences of criminal defendants.

The press was, of course, filled with articles about the likely outcome of Booker and Fanfan; and we have posted a number of those articles on our Website at www.ussguide.com. But it was the bloggers who contributed the most detailed analyses of the oral arguments - particularly Prof. Berman on his Website, Sentencing Law and Policy; Thomas Goldstein, of Goldstein & Howe, at his firm’s Website, SOCTUSBlog; and Jason Hernandez, an enterprising third-year law student at Columbia Law School, who gave perhaps the most detailed recounting of the oral arguments as they developed, at his Blakely Blog.

As an example, Tom Goldstein made the following comments and prediction about the sentencing options that were discussed during oral arguments and that will ultimately emerge from the Court’s ruling:

“The government urge[d] the Court to hold that the [Guidelines] are ‘advisory’ and that judges have the discretion to sentence anywhere within the range of the statute of conviction (hereinafter, ‘advisory guidelines’) [while] the defendants urge[d] the Court to hold that the [Guidelines] are still ‘binding’ but the facts that give rise to enhances sentences must be alleged in the indictment and proved to a jury beyond a reasonable doubt (hereinafter, ‘jury factfinding’).

Three Justices appeared to favor advisory guidelines: the Chief Justice and Justices Kennedy and Ginsburg (i.e., a member of the Blakely majority defecting to join the government on remedy).

Four Justices appeared to favor jury factfinding: Justices Stevens, Scalia, O’Connor (i.e., a Blakely dissenter defecting to join the majority on remedy), and Souter.

That leaves Justice Thomas (who did not ask any questions) and Justice Breyer. Justice Breyer identified discrete categories of findings that it would not be practical to put before the jury. It seemed that he might have been angling for a compromise under which jury factfinding is generally required, but not in those discrete categories of cases in which it would be impractical. On the other hand, he made clear he doesn’t believe there is any obstacle to treating the [Guidelines] as non-binding.

Neither the Justices for the advocates discussed the Double Jeopardy and Ex Post Facto implications of a ruling by the Court in the so-called ‘pipeline cases.’

On the basis of the foregoing, I predict the Court will require jury factfinding, at least in a substantial percentage off cases.”

Professor Berman added a number of wonderful tidbits (as he always does). He started by predicting a decision in Booker and Fanfan “sometime in November” and he even predicted that Judge Thomas (who never spoke - "as is his custom”) would write the majority opinion.

Professor Berman also commented on the fact that no one discussed “the critical question of how past cases could be impacted by Blakely - that is, no one mentioned the issue of retroactivity in any way.” He then commented: “I would be surprised if Booker and Fanfan formally address retroactivity questions, though there is certainly a huge prison population eager to make Blakely claims even when sentences long ago became final.”

Writing for Legal Times, Tony Mauro made a number of interesting comments. He felt that one exchange between Justice Stevens and the Solicitor General was revealing because it seemed to give Justice Stevens pause. “Stevens appeared surprised to hear that as much as 65 percent of all federal sentences pose Blakely-related issues, [stating] ‘I thought the unconstitutional departures were quite few’.” Mr. Mauro then commented: “If that high percentage gives Stevens second thoughts because of how widespread an impact a ruling against the guidelines would have, Stevens might seek out a middle path.”

Mauro also commented: “The most ardent advocate for the guidelines during oral argument appeared to be Justice Stephen Breyer, who was a member of the Sentencing Commission from 1985 to 1989. Some judicial ethics experts have suggested that because of his participation in drafting the original guidelines, Breyer has a personal stake in the outcome of Booker and Fanfan that should have led him to recuse. But Breyer remained in the case and was an active questioner, even making several references to his membership on the commission. If prosecutors are forced to prove to a jury all the facts that go into sentence, Breyer said, then large numbers of sentencing appeals will surge through the courts, including the Supreme Court, in effect turning the high court into the Sentencing Commission -- a deja vu prospect he did not relish.” ("Supreme Court Considers Federal Sentencing Guidelines After ‘Blakely,” by Tony Mauro, Legal Times, October 5, 2004.)

Whatever happens, it is clear that Blakely, Booker and Fanfan will continue to dominate the courts until the Supreme Court rules. It is also pretty clear that whatever the Court decides, it is likely to be an “interim solution” that will ultimately be replaced by new sentencing laws written by Congress - a view that Justice Scalia expressed during the oral argument.


Doe v. Ashcroft, 04 Civ. 2614 (VM), (S.D.N.Y. 09/29/04) (Judge Marrero)

In this sharply worded 120-page ruling, Judge Victor Marrero struck down a key component of the USA Patriot Act as unconstitutional because it allows the FBI to demand information from telephone companies and Internet service providers without judicial oversight or public review.

The provision of the law in question, 18 U.S.C. § 2709, gives the Government the right to use a type of an administrative subpoena known as a National Security Letter (“NSL”) without court approval. In addition, § 2709(c) prohibits the targeted companies from revealing that demands were ever made.

The American Civil Liberties Union (“ACLU”) filed this lawsuit on behalf of an unidentified Internet service provider, challenging the use of the national security letters on a number of grounds. It objected to provisions of the law that require the target companies to disclose to the Government their customers’ names, addresses, credit card data and details about their Internet use.

While it is not clear how many of the NSL subpoenas have been issued in the past three years, the ACLU obtained a list covering the first fourteen months after the act was passed that was six pages long, although the companies’ names were blacked out.

Judge Marrero found that § 2709 “violates the Fourth Amendment because, at least as currently applied, it effectively bars or substantially deters any judicial challenge to the propriety of an NSL request. In the Court’s view, ready availability of judicial process to pursue such a challenge is necessary to vindicate important rights guaranteed by the Constitution or by the statute.”

He called the NSL subpoena an “ominous writ” issued by the FBI “in tones sounding virtually as a biblical commandment. He also said that he worried that anyone who received a NSL, except “the most mettlesome and undaunted” targets, would feel barred from even consulting with a lawyer.

Judge Marrero also said that the permanent ban on disclosure of the demand to release records to the Government, “which the court is unable to sever from the remainder of the statute, operates as an unconstitutional prior restraint on speech in violation of the First Amendment.” He continued:

“In simplest terms, § 2709(c) fails to pass muster under the exacting First Amendment standards applicable here because it is so broad and open ended. In its all-inclusive sweep, it prohibits the NSL recipient, or its officers, employees, or agents, from revealing the existence of an NSL inquiry the FBI pursued under § 2709 in every case, to any person, in perpetuity, with no vehicle for the ban to ever be lifted from the recipient or other persons affected, under any circumstances, either by the FBI itself, or pursuant to the judicial process.”

Finally, he concluded that § 2709 would be used to violate the privacy rights of subscribers to Internet service providers “if judicial review is not readily available to an ISP that receives an NSL.”

Judge Marrero called the use of NSLs to get communications records “a unique form of administrative subpoenas cloaked in secrecy”; and he said that “democracy abhors undue secrecy” and that “an unlimited warrant to conceal . . . has no place in our open society.”

“Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction. . . . At that point, secrecy’s protective shield may serve not as much to secure a safe country as simply to save face.”

Judge Marrero then warned that “[s]ometimes a right, once extinguished, may be gone for good.” He also cited the Supreme Court’s recent pronouncement in Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2650 (2004) that “a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

As a matter of note, the ACLU was forced to filed this lawsuit under seal to avoid the stiff penalties for violating the law’s broad gag provisions; and, since filing this case, the Government has consistently attempted to prevent the ACLU from disclosing almost any information about this case. Claiming that much of the information the Government wanted to keep secret was innocuous, non-sensitive information, the ACLU created a special (and revealing) web page (at www.aclu.org/gagorder) to display the types of information it was forced to ask the court’s permission to disclose publicly.

It is also worth noting that even as § 2709 was being attacked, the Government was proposing massive new changes to the Patriot Act - using the 9/11 Commission’s proposals to revamp the nation’s intelligence agencies as the cover to broaden the Government’s surveillance powers over citizens. In a press release, dated September 29, 2004, the ACLU called portions of the 9/11 Commission Bill a “Trojan horse” that contained unconscionable provisions that were being fostered by election year politics.

Noting that the new bill contains many of the provisions of the draft Patriot Act 2 that was leaked on Capitol Hill last year, the ACLU called it a “virtual wish list for law enforcement that would undermine liberty.”

Laura Murphy, the Director of the ACLU’s Washington Legislative Office said:

“The House leadership bill, in its current form, is a Trojan horse. The bi-partisan 9/11 Commission did not call for an assault on immigrants or an expansion of the Patriot Act; they said that the Patriot Act needs thorough review. By including these unwarranted provisions in this legislation, the Republican leadership is playing election year politics with intelligence reform.”


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

64

1,672

20,599

District Courts

68

1,020

 11,422


Copyright © 2004 Punch and Jurists, Ltd.