David Zapp sits down and talks about the recent Supreme Court decision of Blakely v. Washington which held that a judge could not enhance a sentence based on his own determination.
Q: What are some of your thoughts on Blakely?
DSZ: Well anything that causes change is a good thing but I do not think it will help the big guys and a lot of people accused of drug cases.
Q: Why?
DSZ: Because of the mandatory minimums. There will still be the safety valve, thank g-d, because that is statutorily mandated. If it was only a guideline amendment, you would be out of luck.
Q: But the prosecutors could charge the defendants with crimes that carry no mandatory minimums.
DSZ: Why would they though? They’re prosecutors. They would do it for cooperators, but not for regular defendants. But that’s moot since the safety valve remains alive whether or not the guidelines are struck down.
Q: So are the guidelines good for anyone?
DSZ: For people without mandatory minimum sentences. The money laundering defendants are going to do fine. The illegal reentry defendants are going to do fine. These are cases where a lot of judges thought the guidelines were too harsh to begin with. So if judges are given the freedom to sentence at their discretion, sentences for those people could be much lower.
Q: Well wouldn’t that apply to big guys as well who don’t face mandatory minimum sentences?
DSZ: What big guy doesn’t face a mandatory minimum? But assuming that scenario, it would depend on the judge. If you get a harsh judge and he has the freedom to give a money launderer a lot of time, even higher than the guidelines, he will. But by in large even the big guys should do better. You know the guidelines were not so bad when it came to putting the brakes on a “hanging” judge.
Q: So you think sentencing will go the old way, judges giving any sentences they want within the statutory range.
DSZ: Yes, until Congress comes up with a new scheme, and I fear congress may well come up with an even stricter scheme. But it would be nice if they gave “schemes” a break and just let things go back to they way they were.
Q: But why do you think that if there were to be a new scheme, it would be worse?
DSZ: Because politicians do not want to appear “soft” on crime. We call our clients, “defendants.” Politicians call them “criminals.” When they make the law, they make law against criminals, not for defendants. They’re not thinking of the “rights” of the accused.
Q: But could the court preserve the guidelines and keep judges from making the enhancing determinations?
DSZ: They could, but I don’t think they will because sentencing is fact-based, and any scheme that doesn’t allow for fact based determinations is no scheme at all. You can’t have owners of cocaine getting the same sentences as transporters of cocaine.
Q: Well how about keeping the guidelines and just requiring all enhancements to be decided by either the admission of the defendant when he pleads guilty or by jurors who would decide on the different enhancements beyond a reasonable doubt?
DSZ: Well we defense attorneys would like that but a) it is too unwieldy, and b) the prosecutors are not going to go for it.
Q: Why won’t they go for it?
DSZ: Because it is one thing for a prosecutor to insist that your client is a supervisor. It is another thing to prove he is to a jury. By law a jury is supposed to give your client the benefit of the doubt and a jury often wants to give the defendant a break especially when they have just convicted him. The prosecutor wants the whole loaf. The jury is satisfied to give him half a loaf and feel that they have done right by him. And remember you need all twelve people to decide your client is a supervisor, not just one prosecutor or one judge. Prosecutors are not going to like that because it takes their power away, and they are going to let congress know that.
Q: But until then what would you tell defendants now?
DSZ: Take advantage of the uncertainty. Here is an example: There is a money launderer who may or may not know the money was from drug proceeds. The prosecutor insists the defendant knew, but is aware of the fact that in a few months a judge could give the defendant anything he wants if the Supreme Court decides the guidelines are void. So he or she might be willing to compromise. If you go along with the guidelines now he will not push for an enhancement based on drug knowledge. That’s a deal because you are saving yourself three points on the guideline range.
Q: Could the Supreme Court decide Blakely doesn’t apply to the Federal Sentencing Guidelines?
DSZ: Sure could. Remember in Apprendi we all thought that the Federal Sentencing Guidelines were dead but they weren’t. There is a difference though.
Q: What’s that?
DSZ: Well Apprendi talked about the statutory maximum. Blakely talks about the “maximum practically available” sentence. That’s the big difference. Blakely essentially says it is unconstitutional for a defendant’s “maximum practically available” sentence to be increased as a result of a judge making the determination of a fact not determined by the jury and the application of some set of sentencing rules to that fact. That’s key here. That means that if the guidelines say you’re supposed to get 87 months for laundering “x” amount of dollars, that’s the “maximum practically available” sentence. You can’t get more. Blakely is saying that’s the maximum and when a judge inflicts punishment above that maximum that’s unconstitutional. i.e. a jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.
Until further notice from the Supreme Court, defense lawyers should be arguing that only jury-found facts can be the basis for ANY upward change in the sentence.
Q: So then how can the Supreme Court say Blakely doesn’t apply to the Federal Sentencing Guidelines?
DSZ: Because they are practical people. This could seriously disrupt the criminal justice system. The court could distinguish the Federal Sentencing Guidelines from the Washington state system, by saying that the Federal Sentencing Guidelines are only administratively set “guidelines” not legislatively “standard” sentences, but that would be a bogus argument. This passage from the court’s opinion gives us hope:
“Our precedents make clear, however, that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. See Ring, supra, at 602 ‘The maximum he would receive if punished according to the facts reflected in the jury verdict alone’ ” (quoting Apprendi, supra, at 483)); Harris v. United States, 536 U.S. 545, 563 (2002) (plurality opinion) (same); cf. Apprendi, supra, at 488 (facts admitted by the defendant).
Q: So you think Blakely will strike down the Federal Sentencing Guidelines?
DSZ: I won’t predict. To me, the argument that the guidelines are distinguishable is intellectually dishonest, but I can’t predict what the court will do. The court might find some way to get out of the mess it is going to cause.
Q: So I can’t get you to say you’re at least optimistic?
DSZ: I’m never optimistic. There are 200,000 cases according to the Second Circuit that may be affected. That’s pretty strong incentive not to disturb the status quo, and I find that when there is a conflict between law and order, “order” usually wins.
Q: You are pessimistic.
DSZ: I’m realistic.
Q: Thanks for your time.
DSZ: My pleasure.