« Dynamic state Blakely development | Main | Burdens of proof and a new due process of sentencing »

January 21, 2005

Increased sentences post-Booker

In this post late last night discussing post-Booker sentencing anecdotes, I noted the story of US District Judge Randy Crane using his new discretion to extend the prison terms of three officials charged with accepting bribes.  I also noted that, as detailed in this post, I am not sure due process principles permit a post-Booker sentence increase based on pre-Booker conduct.

Thanks to Peter Henning at White Collar Crime Prof Blog, I now see that the US Attorney's Office in Houston (S.D. Tex.) has issued a press release bragging about these increased sentences.  Peter spotlights the due process issues raised by the case in his post, but the press release now has me thinking about prosecutorial ethics and future Justice Department representations about advisory guidelines:

First, though some comments to my prior post suggest that the due process question is contestable, I must wonder out loud if individual prosecutors have an obligation to make an independent judgment (and not wait for a defense objection) about whether the law allows an increase in a post-Booker sentence based on pre-Booker conduct.  Relatedly, in the name of consistency, I wonder if Main Justice should issue some sort of directive about this matter to its offices.  Otherwise I could imaging varying legal and policy judgments from different US Attorneys Offices about whether to try to reopen and seek longer sentences in past-sentenced cases.

Second, I would bet that DOJ is keeping stats on how many sentences are being imposed below the guideline range now that the guidelines are advisory.  I hope DOJ will also track, and be sure to publicly highlight, in how many cases judges expressed an interest in going higher than the guidelines.  More generally, though DOJ might be heard to complain that, because of due process limits, advisory guidelines are a one-way ratchet for cases in the pipeline, I hope they will also always acknowledge going forward that advisory guidelines may lead to tougher sentences at least in some cases.

UPDATE: Peter Henning at White Collar Crime Prof Blog has now added some additional terrific insights about these issues here, and he notes that they issues are "particularly important in white collar crime cases because the pressure for an upward sentence ... will be greater in the area of public corruption and corporate/business crime (e.g. accounting, securities, bank, & insurance fraud) than in other prosecutions."

January 21, 2005 at 04:19 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200d8346f251e69e2

Listed below are links to weblogs that reference Increased sentences post-Booker:

Comments

Professor- Very sorry to say it, but if you hope to find a commitment to ethical conduct and full disclosures of facts from the DOJ in Houston you are definitely looking in the wrong place. Try another city.

Posted by: A Houstonian | Jan 21, 2005 5:30:06 PM

You wonder if individual prosecutors have an obligation to make an independent judgment (and not wait for a defense objection) about whether the law allows an increase in a post-Booker sentence based on pre-Booker conduct? I don't.

These people lost independent judgment a long time ago, along with a commitment to ethical conduct and full disclosures of facts from the DOJ. Individual prosecutors have lost authority over their own cases by deferring to Washington. And most of these soulless cogs are only too happy to do it because it just makes their job easier. Don't think. Give max. Minimum? Sorry, I'm not allowed. It'll be interesting to see what happens when (if?) they actually have to prosecute cases. Hopefully, one or two will earn their souls back.

Posted by: grant | Jan 21, 2005 6:35:31 PM

What? I'm not the only one who sees the government's prosecutors this way. What a shock (tongue in cheek)!

Posted by: Fred | Jan 22, 2005 12:34:12 PM

In light of the Booker ruling, I was wondering how sentencing would be accorded in narcotics cases? Would sentencing be lowered? Is there still a mandatory minimum? There seems to be a push for increased sentencing on white collar crimes. Do you think that Judges will be veering away from the guidelines complelely?

Posted by: priscilla | Jan 27, 2005 5:46:24 PM

One of the two brother in the above case is my father, the other obviously my uncle. I am not a law major or prof, what I am now is a citizen that has lost faith in our judicial system. My father was convicted of accepting a bribe of four tires. I just would lie to note that during the trial, the Judge, Randy Crane, was asked to quite making facial expressions while my father was testifing. If that wasn't influencing the jury I don't know what is, because of his manner in the court room it was no surprise that he called back to resentence them. According to the booker guidlines he was sopposed to only get 27 months, but because he didn't admit to being guilty after the conviction Judge Randy Crane increased the points to give my father 41 months. We the family are also applealing the sentence. If any one out ther can give us some advice please contact me via e-mail. Thank you

Posted by: Sarge Vasquez | Mar 22, 2005 9:09:43 PM

With regard to sentencing in narcotics cases, it seems that there is much to consider. The Sixth Circuit, in United States v. Harris, 397 F.3d 404 6th Cir. 2005) draws into question a judge's findings regarding mandatory minimums under some statutes, but definitely not all of them. See United States v. Harris, 536 U.S. 545 (2002). Also, the United States Sentencing Commission has stated the 100:1 sentencing ratio for cocaine base (crack) v. powder is not rational. Due to this fact, one should question whether a sentence under the guidelines for cocaine base is "reasonable," especially if the defendant had a minor role in the matter. I am a defense attorney.

Posted by: Tim Holloway | Apr 1, 2005 9:31:53 AM

hp omnibook xt6200 battery

Posted by: | Oct 14, 2008 6:46:49 AM

Wirklich danke, ich finde so eine gute Seite, ich muss es aufschreiben, um meinen Freunden empfehlen

Posted by: pandora perlen | Nov 4, 2010 11:09:30 PM

Fair warning to Rookie Kagan: if you refuse to carry CJ Roberts' (legal) pads, karma will land you with an injury that prevents you from writing any opinions for at least six weeks..

Posted by: discount pandora | Dec 13, 2010 7:58:31 AM

Fair warning to Rookie Kagan: if you refuse to carry CJ Roberts' (legal) pads, karma will land you with an injury that prevents you from writing any opinions for at least six weeks..

Posted by: moncler sale | Dec 13, 2010 8:08:30 AM

Very Interesting!
Great Job!
Great Blog!
Thanks Guys!

Posted by: מוסך בבאר שבע | Jan 6, 2011 6:40:08 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB