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Trying to Lose and Unanimously Failing

Today's SCOTUS decision in Beckles v. United States was a noteworthy win for the Justice Department.  At stake were many, many sentences handed down under guidelines language identical to statutory language in the Armed Career Criminal Act that the Court struck down as void for vagueness in the Johnson case a little less than two years ago, https://www.oyez.org/cases/2014/13-7120.  Not only did the Court preserve quite a few stern sentences for dangerous characters; it held that the Guidelines, being advisory only in the post-Booker world, embody a broadly discretionary sentencing system to which applying the concept of "vagueness" makes no sense.

So this is a big win for DOJ.........................Oh, wait.  It was actually a loss for DOJ. That's because the Department's argument, prepared and presented by the Obama Solicitor General's Office, abandoned the victory the US Attorney had won in the Eleventh Circuit and took up the cause for a previously convicted felon who armed himself with a sawed-off shotgun.

Today, the Department's newly-minted but gushing embrace of the criminal won exactly zero votes.

As I've said before, Jeff Sessions can't start cleaning house too quickly.
Of course, if the Department had thought the only credible argument it could make was in the defendant's favor, it was obligated to do what it did.  As has often been observed, for the prosecution, winning is not the point. Doing justice is the point.  If that means confessing error, you confess error.

In the Beckles case, however, it meant no such thing.  Not only had the guidelines sentence been affirmed by the Court of Appeals; every Justice hearing the case on the High Court also voted to affirm.  There were three Justices concurring, but no dissents.  As to result, the Department's attempt to spring Mr. Nicey was a unanimous flop.  No Ginsburg. No Sotomayor.  Zip.

One might think this would spark a sense of embarrassment in those at DOJ responsible for this botch, including the holdover career people in the SG's Office, but it won't.  Obama's DOJ was never about serious sentencing.  This was, after all, the same DOJ that worked overtime, not to stem the flood of heroin and nationwide violence we have seen for the last two years, but to help the Mr. Obama grant clemency to more hoodlums (mostly dealers in hard drugs) than all the Presidents combined going back at least to Eisenhower.

So why would you expect it to argue for tough sentencing language when that same language had been rejected in Johnson?

Here's why:  Because under an honorable tradition going back decades, the Department makes every reasonable argument available in behalf of public safety. This tradition is valuable, not just for the obvious reason, but for a reason less visible but at least equally important.  If the Department is truly to be non-political, and if it is to do the needed work to assure consistency and accessibility in law  --  two of the defining hallmarks of law itself  --  it cannot change litigating positions solely because Administration X looks more sympathetically on a criminal litigant than Administration Y.

When the Department decided to turn its back on the judgment below in its favor, and take up for Beckles despite the availability of a respectable (indeed, a winning) argument, someone at DOJ should have blown the whistle.

Yes, that person might have had to walk away from his job in the face of a Department as politicized as Obama's became.  But that's all right.  There are things in life more important than keeping your job in the government, http://www.crimeandconsequences.com/crimblog/2017/01/sally-yates-and-me.html .


Bill, I know you do not want to miss a chance to take a swipe at the Obama DOJ, but do you think the DOJ litigation position could have resulted from a not-unreasonable decision to adopt a simple/blanket approach to litigating career-offender (CO) challenges in the wake of Johnson?

The ruling in Beckles (combined with Booker) suggests the old mandatory guidelines are subject to vagueness challenges, and a large number of post-Johnson CO attacks are from offenders sentenced under the old mandatory guidelines. I suspect that, after DOJ concluded in needed to conceding a vagueness problem after Johnson in those cases, DOJ thought it might better "assure consistency and accessibility in law" to say every pre-Johnson CO defendant ought to get a resentencing when a sentence was dramatically enhanced by the CO guidelines.

Your criticism suggest you view DOJ as a "Department of Public Safety" rather than a Department of Justice. You assert that DOJ has a tradition to make "every reasonable argument available in behalf of public safety." Really? Is this your understanding of DOJ's historic commitment, to put "public safety" above any and other aspect of justice? The DOJ mission statement speaks of public safety, but also about the need to "seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans."

Please understand, Bill, I think you can legitimately question/criticize the DOJ litigation position in Beckles. But there is a backstory that at least makes it possible to see the DOJ position as in service to "consistency and accessibility in law." More generally, I am struggling to understand your point against the backdrop of my understanding that you and many others are applauding that DOJ will now be changing litigating positions solely because the Trump Administration approaches many legal issues very differently than the Obama Administration.

In our discussions of how federal prosecutors use mandatory minimums, you have asserted that elections are the only constitutional means to regulate day-to-day the work of DOJ. Given that view, I struggle to see why and how you think it fair to DOJ's position in this case as "political." Isn't having DOJ positions reflective of election outcomes how you think the system is supposed to work --- and aren't you supportive of the efforts already taken by the Trump DOJ to change litigation positions (such as in the Texas voter case or on transgender issues) in the wake of the latest election? Or do I get to cite in criticism the esteemed Bill Otis if/when DOJ issues a new policy on marijuana enforcement because you now are suggesting that DOJ "cannot change litigating positions solely because Administration X looks [less] sympathetically on [state marijuana reform] than Administration Y."

Doug --

Only you, who combines perennial optimism with a strong pro-defendant sentiment, could defend DOJ's giving up the winning position it approved (indeed, very likely wrote) from the US Attorney's Office, and exchanging it for the unanimously losing, pro-armed career felon position it flubbed in the Supreme Court.

What you and other pro-defense advocates so often overlook is that speaking up for public safety and speaking up for overall justice are, far more often than not, EXACTLY THE SAME THING. That was true in this case as well.

Doug, when you can't get Ginsburg and you can't get Sotomayor to vote your way, and you get Kennedy AND BREYER joining the majority opinion, your running room to cheerlead for DOJ's switcheroo stance has just evaporated.

Losing everyone just is not smart litigating strategy. In this case, it also was neither legally correct nor favorable to public safety. Have you seen the defendant's rap sheet?

For purposes of law, justice, and public safety, the sentence he got under the guidelines' language was correct, as every court to have heard the case determined, the last one unanimously.

I know the Obama DOJ set a record for unanimous losses in the Supreme Court, but at least, in the great majority of those cases, it didn't have to switch horses in midstream in or to do so.

Maybe if Obama's DOJ hadn't spent so many resources ginning up a rationale to give record-setting clemency to hundreds and hundreds of hard drug dealers, it would have been able to come up with a SCOTUS brief that would get someone, anyone. But when we have a Department obsessed with releasing drug pushers rather than incapacitating them, embarrassments like yesterday's are what you get.

Love your context-free bashing, Bill. Nice to see you have embraced the modern (ivory tower?) tendency to bash those you dislike without any concern for the particulars. And because you seem disinclined to engage the contextual particulars in Beckles, I am not going to bother to try again on that front.

But I am going to return to asking you to explain what this statement should be understood to mean in the wake of the latest election: "If the Department is truly to be non-political, and if it is to do the needed work to assure consistency and accessibility in law -- two of the defining hallmarks of law itself -- it cannot change litigating positions solely because Administration X looks more sympathetically on a criminal litigant than Administration Y."

It is my understanding that the Trump DOJ has already changed a lot of "litigating position" in the last few weeks based on a different view of law and politics than was embraced by the Obama DOJ. My first instinct is to say that's just what a new sheriff gets to do after winning an election and taking the reins of the executive branch. But your comment leads me to wonder if it is your general contention and belief, Bill, that this is distinctly NOT what should happen in DOJ even with new leadership?

I am not trying to snarky here. I am just trying to get a fuller understanding of how you think politics and political transitions should or should not inform DOJ's work --- especially against the backdrop of your repeated assertions that federal Prez elections are really the only way that federal prosecutorial power can be checked in our constitutional system.

1. As to the particulars of the question, I can hardly improve on Justice Thomas's opinion. I think the sum of it is that, in the discretionary sentencing system we have now in Booker's wake, the concept of vagueness (in guidelines that do not constrain the sentence) just loses all meaning. That Breyer and Kennedy signed onto this opinion makes me confident that this is not some right-wing caprice -- not that I would think so anyway, since I don't.

2. If a point be made of it, I think Peugh was wrongly decided, but I lost that one just as you lost this one.

3. New administrations get to have new priorities and points of emphasis, for sure. Elections have consequences, as someone once said.

But I chose my words with care in my entry. What I said was that a succeeding Administration (emphasis added): "cannot change litigating positions solely because [it] looks more sympathetically ON A CRIMINAL LITIGANT than" the prior Administration did.

Note that I referred to (1) a litigant (singular), (2) in a particular case, (3) that is criminal in character.

Has the the Trump Administration filed superseding and tougher indictments against anyone first charged in the last Administration? Has it withdrawn any sentencing memo, for anyone anywhere, and replaced it with a request for a tougher sentence? If so, I'm not aware of it, and you cite no case in which that has happened.

4. Not that a change of Administrations could explain the switcheroo in the Beckles case, which was handled by a SINGLE Administration from start to finish.

5. I think what really was going on was this: As the Obama Administration drew to a close, its constituent groups were going bonkers that it hadn't done more to advance a leniency agenda (your blog has number of excellent entries documenting this).

With no political accountability left, Obama and his DOJ then felt both freer and more pressured to take the defendant's side as the clock wound down. This accounts for two singular events in the waning months, to wit (1) the clemency explosion, and (2) the reversal of course, at the SCOTUS level no less, in a far-reaching sentencing case.

As to the latter, this seems the most plausible explanation for abandoning a winning argument for one that lost every vote (but was far more popular with Obama's backers in the legal and defense communities).

I have no problem with your amicus brief for the defendant. More power to you. I also thought Sotomayor's opinion was quite a good effort, but couldn't beat Thomas's and the majority's main point about the critical difference between discretionary sentencing, on the one hand, and statutory definitions of the offense, on the other. But DOJ has an obligation to the public that amici don't have, and it must remain faithful to that obligation by making any credible argument in favor of the public interest. The Department fell short of that obligation here.

Bill, my understanding is that the Obama DOJ consistently concluded Johnson made unconstitutional the parallel guideline language, not that it changed its approach on that essential question in Beckles or any other case. So I am not sure of the basis for you assertion that DOJ changed/abandoned its position on this essential issue that was being raised in hundreds of courts nationwide days after Justice Scalia extended vagueness doctrine dramatically Johnson.

And Beckles suggests that the Johnson-vagueness unconstitutionality is the right position in pre Booker cases --- and my main point in this thread is that there are a range of sound reason for DOJ to have decided it was fair and efficient in 2015 to adopt same view for post Booker cases. Again, you can fairly criticize this decision, but I think you rhetoric reveals an eagerness to attack DOJ policy choices in this rather than acknowledge the complicated context for those choices.

That all said, I always find it refreshing when you acknowledge DOJ falls short. And, notably, in this context the courts serve as a kind of check on the DOJ sentencing litigation decision. You clearly like such a court check in this sentencing setting --- too bad you do not see the virtues or possibly having court checks of imperfect federal prosecutors in some other sentencing settings like the application of severe mandatory minimums. Notably, that very lack of court check surely fueled the Obama DOJ's view that a lot of clemency grants were justified.

There are many parts to your response, all noteworthy, but to try to make the debate manageable, let me focus on a single one right now.

Under your theory of fair, efficient and consistent sentencing (here, supporting retroactive application of Johnson's rejection of the "serious potential risk" language to BOTH post- and pre-Booker sentencings), would DOJ not likewise have been obliged to accept tens of thousands of re-sentencings under advisory guidelines when Booker overturned the mandatory guideline regime under which sentences had previously been imposed?

My point is that "fair, efficient and consistent" sentencing in the broad sense in which you seem to understand that phrase would even more insistently require a retroactive application of Booker's advisory sentencing regime than it would retroactive application of Johnson's holding.

But to my knowledge, no court required retroactive re-sentencings under Booker's new rule, and certainly DOJ never thought about asking for or acquiescing in such a thing.

Was that OK? If so, why isn't the same prospective-only application here OK as well? If not, why, in the name of fairness and consistency, weren't you filing amicus briefs demanding retroactive advisory sentencing hearings for the tens of thousands of defendants who, before Booker, "suffered" under mandatory guidelines sentencing?

One other point I'll make for now, just to state the obvious.

Here are the four basic reasons DOJ should have taken the position argued by the amicus.

1. The position is legally correct, as the Court's ideologically diverse majority found.

The first thing the Department's advocacy should do is get the law right.

2. The position serves the vital public interest in safety, which DOJ has a uniquely strong interest in supporting.

3. The position conserves taxpayer resources by avoiding hundreds or perhaps thousands of re-sentencing hearings.

4. The position supports a sentence Beckles earned by any fair reckoning, something that Sotomayor and Ginsburg implied by saying that they're voting to affirm because this repeat felon's latest offense actually IS a crime of violence with or without the residual clause.

Couple of too quick responses to a neat dialogue:

1. I think it would have been entirely permissible, but not obligatory, for DOJ to accept tens of thousands of re-sentencings under advisory guidelines when Booker overturned the mandatory guideline regime (and I did in various ways on my blog advocate for Booker retroactivity). One can distinguish Booker/Johnson retroactivity on substance/procedure grounds, but I have written more broadly (in law reviews, on my blog and in amicus briefs) that I do not think traditional finality doctrines ought to apply the same way to sentences as to convictions.

2. The position DOJ took on Johnson's applicability to CO guideline was the majority opinion in circuit courts before Beckles, AND DOJ had the challenge of dealing with the impact of Johnson is all sorts of retroactive AND prospective cases pending the USSC amending the CO guideline. Are you also critical of DOJs willingness in PROSPECTIVE cases circa Fall 2015 to acknowledge a constitutional problem with the CO guideline. Beckles determined that such a position was legally wrong, but DOJ could have reasonably worries it would have a redo mess if it fought and keep losing this issue in circuit courts until SCOTUS took it up.

3. My core point is that I think DOJ after Johnson thought that giving up an effort to save the constitutional status of the CO guideline was probably the most efficient way to "avoiding hundreds or perhaps thousands of re-sentencing hearings." There is a lot of complicated guesswork and number crunching to figuring this out, but my main point is that what to do in DOJ after Johnson is a dynamic and challenging question as a matter of predicting the laws development AND as a matter resources, not the no-brainer your main post implies.

4. In the end, I suspect we would both agree (1) that the Obama DOJ was generally of the view that we incarcerate too many people, whereas your view (and I assume the view of the current AG) is that we may not be incarcerating enough and that those federally incarcerated have earned their sentence, and (2) litigation decisions after Johnson and other disruptive cases can and will be influences by which view you take.

5. But this all adds up to my main concern that you have not address: do you think DOJ can and should be changing its approaches to criminal prosecution and litigation after a change in Prez leadership or should DOJ have some broader commitment to consistency in policies and practices than transcend political changes in the executive branch?

"[D]o you think DOJ can and should be changing its approaches to criminal prosecution and litigation after a change in Prez leadership..."

Yes. I also said that after Obama was elected, although of course I disagreed with what the particular changes turned out to be.

"...or should DOJ have some broader commitment to consistency in policies and practices than transcend political changes in the executive branch?"

Because of the executive's prerogative to change broad substantive policies, DOJ does not have a need to keep such policies that the new executive may plausibly view as having been repudiated by the electorate.

BUT traditions not linked to substantive policies should remain consistent, yes. One of those traditions is that DOJ will advance any credible legal argument in the Supreme Court that (1) preserves its victory below in the case under review, and (2) keeps faith with its unique obligation to protect public safety (here, by preserving a lengthy but earned sentence on a repeat felon). I fault DOJ because it did not do that in Beckles.

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