//  7/27/17  //  Commentary

Since becoming attorney general, Jeff Sessions has announced plans to ramp up civil forfeiture laws, revive prosecutions for crimes involving small amounts of marijuana, and charge defendants with crimes that carry more severe penalties. He has also come out with outlandish policies on immigration-related crimes and consent decrees with local police departments, and reversed the Department of Justice’s position in the ongoing Texas voter-discrimination litigation.

Sessions’ positions are not only unjustifiably punitive; some of them also undermine the premises of a recently decided Supreme Court case.

In their March ruling in Beckles v. United States, the justices held that the U.S. Sentencing Guidelines, legislative rules that identify sentencing ranges for defendants based on their conduct and criminal history, are not subject to the vagueness doctrine, the constitutional prohibition against vague penal laws, which are problematic because they fail to provide adequate notice that certain behaviors are proscribed. Prior to 2005, a statute required federal judges to sentence defendants within the range specified by the guidelines. In United States v. Booker, the Supreme Court held that viewing the guidelines as mandatory violated the Sixth Amendment’s guarantee to a trial by jury. Booker invalidated the statutory provision that required judges to sentence defendants within the range specified in the guidelines and rendered them “advisory.” Accordingly, federal judges are no longer required by statute to sentence a defendant within the range provided for in the guidelines. But the guidelines still play a significant role in federal sentencing for a variety of reasons, and the vast majority of federal sentences continue to fall within the ranges they specify. Federal judges must begin sentencing by calculating a range based on the guidelines and must adequately explain their decision to deviate from it.

In holding that the guidelines are not subject to the vagueness doctrine, Beckles repeatedly emphasized that the guidelines are advisory and “merely guide the exercise of a court’s discretion.” The court concluded that a defendant could be sentenced under a guideline that uses the same exact language that the court had previously held was unconstitutionally void for vagueness when it appeared in a criminal statute. In Johnson v. United States, the Court had held that the Armed Career Criminal Act’s residual clause, which increases the sentences of defendants who were convicted of crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another,” was unconstitutionally void for vagueness. The guideline at issue in Beckles (the “career offender” guideline) used the exact same words: It provided sentencing ranges for defendants who were convicted of crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another.”

In part because the guidelines are advisory, federal prosecutors are not required to request sentences within the ranges they outline. In fact, federal prosecutors routinely request courts not to impose sentences that fall within the range recommended by the “career offender” Guideline. Representatives of the federal defenders office assembled data and testified before the U.S. Sentencing Commission that the government recommends a sentencing range that is lower than the range provided for by the guidelines in almost half of the cases where the “career offender” guideline applied. Prosecutors opt not to ask for sentences within the range provided for by the career offender guideline because the guideline is so draconian. The guideline doubles the sentence of drug offenders, and in Mr. Beckles’ case, his sentencing range jumped from 15 years to more than 30 years because of the career offender guideline.

After the Beckles ruling, Sessions issued a memorandum to prosecutors about how to charge and recommend sentences for federal defendants. The memorandum urges prosecutors to charge based on the “most serious, readily provable” offense. It also says that “recommending a sentence within the advisory guideline range will be appropriate.” Judge William Pryor on the 11th Circuit U.S. Court of Appeals (who President Trump considered nominating to the Supreme Court) defended the policy in the memo, stating that “it at least reduces the potential for disparities.” (Judge Pryor also sits on the U.S. Sentencing Commission and wrote the sole court of appeals opinion that held the guidelines were not amenable to vagueness challenges.)

It’s true that, since Booker, courts have not been required to sentence defendants within the ranges specified in the guidelines. But federal courts continue to rely on the guidelines when imposing sentences. And the guidelines will take on additional force if prosecutors uniformly recommend their application, as Attorney General Sessions has asked them to do.

This piece is cross-posted at In Justice Today.  I was on an amicus brief in Beckles v. United States.

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