January 19, 2005
Another (very different) view of Booker from a district court
Here we go again!! As I suspected (and suggested in posts here and here), Judge Cassell's Wilson ruling was not the last word, but only the first word on the look of the post-Booker federal sentencing world. A quite distinct perspective comes today from US District Judge Lynn Adelman in US v. Ranum, Case No. 04-CR-31 (D. Wisc. Jan 19, 2005).
In Ranum, which can be downloaded below, Judge Adelman writes 13 thoughtful pages to "explain how I understand Booker and why I sentenced defendant Ranum to a year and a day in prison." The entire opinion is rich with insights and powerful statements. For example, Judge Adelman writes:
Sentencing will be harder now than it was a few months ago. District courts cannot just add up figures and pick a number within a narrow range. Rather, they must consider all of the applicable factors, listen carefully to defense and government counsel, and sentence the person before them as an individual. Booker is not an invitation to do business as unusual.
And in a lengthy and key introductory passage, Judge Alderman documents the disagreement with Judge Cassell's approach in Wilson:
The directives of Booker and § 3553(a) make clear that courts may no longer uncritically apply the guidelines and, as one court suggested, "only depart . . . in unusual cases for clearly identified and persuasive reasons." United States v. Wilson, Case No. 2:03-CR-0082, 2005 WL 78552, at *1 (D. Utah Jan. 13, 2005). The approach espoused in Wilson is inconsistent with the holdings of the merits majority in Booker, rejecting mandatory guideline sentences based on judicial fact-finding, and the remedial majority in Booker, directing courts to consider all of the § 3353(a) factors, many of which the guidelines either reject or ignore. For example, under § 3553(a)(1) a sentencing court must consider the "history and characteristics of the defendant." But under the guidelines, courts are generally forbidden to consider the defendant’s age, U.S.S.G. § 5H1.1, his education and vocational skills, § 5H1.2, his mental and emotional condition, § 5H1.3, his physical condition including drug or alcohol dependence, § 5H1.4, his employment record, § 5H1.5, his family ties and responsibilities, § 5H1.6, his socio-economic status, § 5H1.10, his civic and military contributions, § 5H1.11, and his lack of guidance as a youth, § 5H1.12. The guidelines' prohibition of considering these factors cannot be squared with the § 3553(a)(1) requirement that the court evaluate the "history and characteristics" of the defendant. The only aspect of a defendant's history that the guidelines permit courts to consider is criminal history. Thus, in cases in which a defendant's history and character are positive, consideration of all of the § 3553(a) factors might call for a sentence outside the guideline range.
Further, § 3553(a)(2)(D) requires a sentencing court to evaluate the need to provide the defendant with education, training, treatment or medical care in the most effective manner. This directive might conflict with the guidelines, which in most cases offer only prison. See U.S.S.G. § 5C1.1 (describing limited circumstances in which court can impose sentence other than imprisonment). In some cases, a defendant’s educational, treatment or medical needs may be better served by a sentence which permits the offender to remain in the community.
In addition, § 3553(a)(7) directs courts to consider "the need to provide restitution to any victims of the offense." In many cases, imposing a sentence of no or only a short period of imprisonment will best accomplish this goal by allowing the defendant to work and pay back the victim. The guidelines do not account for this. In fact, the mandatory guideline regime forbid departures to facilitate restitution. United States v. Seacott, 15 F.3d 1380, 1388-89 (7th Cir. 1994).
Finally, in some cases the guidelines will clash with § 3553(a)’s primary directive: to "impose a sentence sufficient, but not greater than necessary to comply with the purposes" of sentencing.
In sum, in every case, courts must now consider all of the § 3553(a) factors, not just the guidelines. And where the guidelines conflict with other factors set forth in § 3553(a), courts will have to resolve the conflicts.
In a word, WOWSA!!
January 19, 2005 at 01:24 PM | Permalink
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» District Court Offers Different Perspective on Booker from ACSBlog: The Blog of the American Constitution Society
A different perspective on the post-Booker sentencing world came down today with US District Judge Lynn Adelman's ruling in US v. Ranum, Case No. 04-CR-31 (D. Wisc. Jan 19, 2005). In the decision, the judge explains how she understands Booker... [Read More]
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» District Court Offers Different Perspective on Booker from ACSBlog: The Blog of the American Constitution Society
A different perspective on the post-Booker sentencing world came down today with US District Judge Lynn Adelman's ruling in US v. Ranum, Case No. 04-CR-31 (D. Wisc. Jan 19, 2005). In the decision, the judge explains how he understands Booker... [Read More]
Tracked on Jan 19, 2005 8:38:11 PM
» 'Round the Bloggerhood from TalkLeft: The Politics of Crime
Billmon's Whiskey Bar is open again. Sam Heldman of Ignatz has resumed blogging. Law Prof Doug Berman of Sentencing Law and Policy reports on a new Booker decision from a federal judge in Wisconsin that (thankfully, in my opinion) takes... [Read More]
Tracked on Jan 19, 2005 11:52:13 PM
And here's another posssible ray of hope from the 2d Cir. This morning I argued a plain error case described in an earlier post. The panel wasn't the least bit interested in Wilson when I tried to point out its flaws.
One focus of the panel, which was apparently its focus in a similar argument yesterday as well, was whether to vacate and remand for resentencing or simply to remand for reconsideration of the original sentence. The panel invited me to submit a letter brief by noon tomorrow on this issue (to respond to a letter the government had sent about it and on the fourth plain error factor in the case argued the day before me).
Much of the argument was centered on the question of whether the court of appeals could ever affirm a sentencing imposed when the district court erroneously believed the guidelines were mandatory. It was my sense from the panel members that they didn't believe it could in most cases, perhaps with an exception in which the district court had fully discussed its own non-guidelines view of an appropriate sentence. Even then, I believe, the panel was not particularly receptive to affirming in that type of case either.
I've got some ideas for the proposed letter. For example, whatever the type of remand, I'll argue as I did today, defense counsel has to be given the opportunity to discuss factors that were barred under the guidelines and to investigate and discuss "parsimony clause" factors like how well the defendant responded to prior incarceration or supervision. Any additional thoughts and suggestions would be welcome, however.
Posted by: Alex E. | Jan 19, 2005 1:49:06 PM
Wowsa yes, but is this opinion a good or a bad thing? This kind of call for very broad-based judicial discretion is exactly what Congress is most likely to hate, fear, and despise, which could result in the most extreme sentencing regime imaginable.
And frankly, this sort of move isn't good for either "liberals" or "conservatives" (however you want to define those terms). It invites judges to "depart" because the offender had a rough life growing up in the ghetto OR because the offender is highly educated, can participate in society, and "this process has been punishment enough." It allows judges to drastically depart because the offender is young enough to make something of his life or because he is old enough that incarceration won't do any good. Judges can depart beceause the offender was "programmed that way" in the Marines or because alcohol "made" him do it. I've articulated downward "departures" but the same will go with upward departures. Now, my personal opinions about how much discretion judges should have in each case aside, these ideas will terrify congress. And instead of amending s. 3553(a), they might look to tighten discretion even more -- through mandatory minima or some other mandatory system. Congress just needs a few of these pieces of anecdotal evidence to scrap a (possibly) workable post-Booker system.
Posted by: District Clerk Battling Blakely (Booker) | Jan 19, 2005 2:28:25 PM
DCBB makes a lot of good points relating to the real politic of sentencing issues and the inherent difficulties in balancing factors that sometimes could cut both ways. But my reaction is that Judge Adelman's opinion makes perfect sense. I don't know how a just sytstem of sentencing can work without a fair amount of judicial authority to size up highly-fact specific circumstances and make a call, as problematic as it is in a federal system with judges appointed for life and widely varying regions values. A couple points stick out. Any uniform system necessarily must badly overvalue the quantifiable (e.g., dollars taken or drugs smuggled), and undervalue facts and personal attributes that cannot be quantified. That is the heart of the problem with strick, mandatory guidelines and mandatory minimums. And a system of truly advisory guidelines with appellate oversight seems the best way to balance problems with unfair variation and unfair uniformity. Also, isn't it stricking that the guidelines affirmatively prohibit under 5H1 consideration of (for the most part) just the sort of factors that most people would intuitively consider essential to coming up with a just sentence (and often much more central than dollar amount or weight). Finally, on the politics. I wonder whether politians overestimate the political risks of failing to take affirmative action to stop judges from exercising the type of discretion that Judge Adelman exercised. Wouldn't the average American look at this opinion and say, "this seems about right and better than the alternative of sentencing within a very narrow range that is determined mostly by dollar amount?" Does the average American really hate judges as much as many politicians seem to think they do?
Mike (Big law firm guy)
Posted by: Mike | Jan 19, 2005 2:57:08 PM
Judge Crane (SDTX)commented he was moved by the editorials in the paper contending mistrust of the government but forgot to mention that there was also praise for the defendants about their accomplishments while in office. The judge also was moved to increase one defendants sentence more than the other because he thought one was the ring leader. Almost five years for a set of tires that the undercover agent had to practically forced them to accept after many attempts to bribe them didn't work. Allegations about monies accepted (no Amounts mentioned) were also used by the Judge to depart from an already maximum sentence and maximum fine. These Officials were willing to serve in Iraq rather than be a burden to the people. Willing to work at the schools or community without pay, rather than spend the people's monies. What is wrong with this? Both officials while serving in their capacities at the school district were responsible for bringing the district out of practically bankrupt status to a figure of over a million dollar surplus in just two years. Letters and actual testimony from school officials vouch for this, but the AUSA contends that the officials sold their good names and let the students down for a set of tires. Often during the trial and before, money was the issue...AUSA and FBI contended that they had spent millions of dollars on this sting, therefore someone was going down very hard. At sentencing again, the AUSA argued that the judge should give them a harsh sentence because they made them and the court system work..while they could have pleaded out... wow..the American justice system. The new system of sentencing might help elimenate some harsh pusnishment but won't change bigoted, pet peeve driven judges!!! Incredible huh?
Posted by: Pax | Jan 24, 2005 11:28:04 AM
I read your article - my brothers were sentence to 87 years for home robbery and so called kidnapping for moving them from one room to another - but the judge and the DA were close friends with the so called a prominent family in the community who were the victims - so the system was against them for a fair trial
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