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January 12, 2005

The power of parsimony (and Justice Breyer's notable omission)

I am heading home soon to crank up the The Who's fitting Won't Get Fooled Again to better understand the Booker decision (explanation here), but one more point for now about an important feature of our new advisory world order.

As I understand matters, federal judges imposing sentences after Booker remain fully bound by the dictates of 18 USC ยง 3553(a).  See Breyer for the Court at 16-17; id. at 19 ("Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing.")  That provision, as Justice Breyer explains at page 17, requires consideration of guidelines ranges, of the need to avoid disparities, and of the traditional purposes of punishment.  But, the very first sentence of 3553(a) has a critical initial instruction to judges, what has been called the "parsimony provision," which states: "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment] set forth in paragraph (2) of this subsection."  Notably, and somewhat disconcertingly, Justice Breyer's opinion makes no mention of this mandate.

Federal district courts at sentencing (and circuit courts assessing reasonableness) will have to, in my view, give considerable attention to this very important, though historically ignored, mandate that federal sentencing judges impose the lowest possible sentence to achieve the purposes of punishment.  For that matter, probation officers doing presentence reports, and prosecutors and defense attorneys making sentencing recommendations, will also have to figure out what this parsimony provision means for specific cases.

But what does it really mean?  Consider Freddie Booker and Ducan Fanfan.  Both were involved in non-violent drug offenses.  What sentence will qualify as "sufficient, but not greater than necessary, to comply with the purposes [of punishment]"?  Or let's think about some fraud cases. Was Martha Stewart's 10 month sentence "sufficient, but not greater than necessary, to comply with the purposes [of punishment]"?   I can say with a some confidence, based on what I have read, that Jamie Olis will have a pretty good claim that his severe 24-year sentence is greater than necessary to comply with the purposes of punishment.   

When the Justice Department was arguing for advisory guidelines in September to avoid "sentencing windfalls," I wondered here and here whether in fact sentences would end up lower in an advisory system (at least for some defendants).  I suppose we will soon find out, and I will be especially curious to see how courts consider the parsimony mandate. 

I also will be closely watching if courts start to consider a range of mitigating offender circumstances โ€” e.g., family circumstances, drug dependency, lack of guidance as a youth โ€” that mandatory guidelines had largely taken off the table.  In our new advisory system, defendants have every reason (and I might even say a due process right) to raise these issues, and judges arguably now have an obligation to explain on the record whether the purposes of punishment will be served or disserved by their consideration.  Fun times ahead.

January 12, 2005 at 08:54 PM | Permalink

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Who cares about the length of the sentence if the client gets probation? What I want to know is how Booker/FanFan impacts the mandatory ZONES. If you are in Zone C {or is it D] then prison is the only option, or has that gone out the window? THAT is the real question.

Posted by: David Raybin | Jan 12, 2005 9:05:27 PM

Resectfully, your question is phrased incorrectly (or at least the implication is incorrect). Your question implies that the purposes of the section are rehabilitation -- or at most just punishment of this defendant.

Of course Martha Stewart doesn't need every one of the 10 months for rehabilitation. But the purposes of the section include refelcting the seriousness of the offense, promoting respect for the law, and affording adequate deterrence (presumably general deterrence as well as specific deterrence).

So while there may well be some sentences that seem excessive to you, this clause isn't going to spring Martha Stewart on resentencing. And it's awfully hard to see how a district court's determination of a sentence can be set aside under this clause, unless the sentence is unreasonable -- in which case this clause isn't needed.

Sorry, but I can't see Booker bringing your parsimony clause to life.

Posted by: A prosecutor | Jan 12, 2005 9:52:42 PM

Justice Breyer's opinion does contain a coded reference to the parsimony clause -- which is now the *only* mandatory directive to federal sentencing judges ("shall impose the sentence which is sufficient but not greater than necessary..."). In that discussion he cites pages 29-30 of the FAMM amicus brief. Those are the pages on which sec 3553(a)'s parsimony clause is highlighted and discussed (and credited to Beccaria).

Posted by: Peter G | Jan 12, 2005 10:03:37 PM

Respectfully

"Seriousness of the offense"? You mean that you, as a prosecutor, would admit in writing that that there are felonies that you consider "minor"? I thought all offenses were serious. I have yet to hear a prosecutor identify even a single crime as minor. I'd love to hear about just one.

Just punishment should be the goal, and that fact that Mr. X got probation and Mrs. Y get 5 years for the same offense should have no bearing on a a 3rd defendant's case, and neither should the political climate of the day.

Posted by: bob | Jan 12, 2005 10:11:31 PM

As I noted when I made a similar observation to Doug's here (10 minutes before he had this great insight!) see http://sentencing.typepad.com/sentencing_law_and_policy/2005/01/the_fsg_are_dea.html#comments whatever caselaw evolves with respect to mandatory considerations of the guidelines should have equal applicability to mandatory consideration of the parsimony clause. So, maybe "A" shouldn't be so confident that it will stay in the statutory dustbin.

"What you say doesn't hurt me, it only makes me stronger!"

Posted by: Alex E. | Jan 12, 2005 10:19:28 PM

Frankly (bottom line), there is nothing that is really going to change. My federal judges have told me today during a meeting after this case came down that they will sentence within the (advisory) guideline range, unless they see something drastic that would change their mind. That doesn't happen much. If so, they will then just articulate their reasons for the sentence and go from there. Nothing in their opionion is retroactive either, except a few cases.

Posted by: joe | Jan 12, 2005 11:03:47 PM

Science is beginning to provide evidence that much of what we call addiction is self medication for PTSD.


Addiction or Self Medication?
Heroin
PTSD Pot Alcohol & Substance Abuse
The Problem with Drug Addicts
Capitalism, Pain and the War on Drugs
Fear of Marijuana
Cannabinoids - the Key to many Pains?
Big Mac - heroin attack
Genetic Discrimination

here are the urls:

http://powerandcontrol.blogspot.com/2004/09/addiction-or-self-medication.html
http://powerandcontrol.blogspot.com/2004/09/heroin.html
http://powerandcontrol.blogspot.com/2004/10/ptsd-pot-alcohol-substance-abuse.html
http://powerandcontrol.blogspot.com/2004/12/problem-with-drug-addicts.html
http://powerandcontrol.blogspot.com/2004/12/capitalism-pain-and-war-on-drugs.html
http://powerandcontrol.blogspot.com/2004/12/fear-of-marijuana.html
http://powerandcontrol.blogspot.com/2004/12/cannabinoids-key-to-many-pains.html
http://powerandcontrol.blogspot.com/2004/12/big-mac-heroin-attack.html
http://powerandcontrol.blogspot.com/2004/12/genetic-discrimination.html

I wonder how future generations will view our anti-drug jihad in light of this new evidence.

Posted by: M. Simon | Jan 13, 2005 12:40:42 AM

I'm a concerned citizen.

Posted by: M. Simon | Jan 13, 2005 12:43:13 AM

Or suppose the Drug War is just rent seeking on the part of drug companies.


The Brown Acid - Quality Control in A Free Market
http://powerandcontrol.blogspot.com/2005/01/brown-acid-quality-control-in-free.html

That will do a LOT to improve the image of the judicial and medical establishments don't you think?

Posted by: M. Simon | Jan 13, 2005 12:57:48 AM

To give some credit to SCOTUS here, at least the offender will KNOW what they are facing. Clearly, the remedy portion of the decision is the critical operative portion when it comes to sentences. The validity of the 6th amd has been upheld. Offenders will have to get the facts as the prosecution sees them BEFORE facing sentencing. Am interested in hearing what the sentencing intelligensia on this and other blogs see coming from the seemingly more important protection of the 6th. Did this decision bring the fair and open basis for plea bargaining, which will clearly remain at all time highs? This seems to impact all pipeline and future cases and may be the basis for an onslaught of appeals.

Posted by: Jason | Jan 13, 2005 6:22:08 AM

To give some credit to SCOTUS here, at least the offender will KNOW what they are facing. Clearly, the remedy portion of the decision is the critical operative portion when it comes to sentences. The validity of the 6th amd has been upheld. Offenders will have to get the facts as the prosecution sees them BEFORE facing sentencing. Am interested in hearing what the sentencing intelligensia on this and other blogs see coming from the seemingly more important protection of the 6th. Did this decision bring the fair and open basis for plea bargaining, which will clearly remain at all time highs? This seems to impact all pipeline and future cases and may be the basis for an onslaught of appeals.

Posted by: Jason | Jan 13, 2005 6:22:13 AM

To give some credit to SCOTUS here, at least the offender will KNOW what they are facing. Clearly, the remedy portion of the decision is the critical operative portion when it comes to sentences. The validity of the 6th amd has been upheld. Offenders will have to get the facts as the prosecution sees them BEFORE facing sentencing. Am interested in hearing what the sentencing intelligensia on this and other blogs see coming from the seemingly more important protection of the 6th. Did this decision bring the fair and open basis for plea bargaining, which will clearly remain at all time highs? This seems to impact all pipeline and future cases and may be the basis for an onslaught of appeals.

Posted by: Jason | Jan 13, 2005 6:22:39 AM

To give some credit to SCOTUS here, at least the offender will KNOW what they are facing. Clearly, the remedy portion of the decision is the critical operative portion when it comes to sentences. The validity of the 6th amd has been upheld. Offenders will have to get the facts as the prosecution sees them BEFORE facing sentencing. Am interested in hearing what the sentencing intelligensia on this and other blogs see coming from the seemingly more important protection of the 6th. Did this decision bring the fair and open basis for plea bargaining, which will clearly remain at all time highs? This seems to impact all pipeline and future cases and may be the basis for an onslaught of appeals.

Posted by: Jason | Jan 13, 2005 6:23:50 AM

Jason, what do you mean they will now know what they are facing. They will be facing anywhere from 0 up to the maximum allowed by U.S. code. They had a much better idea of what they were facing before this case.

Posted by: steve | Jan 13, 2005 3:07:48 PM

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Posted by: | Oct 14, 2008 6:42:36 AM

Of course Martha Stewart doesn't need every one of the 10 months for rehabilitation. But the purposes of the section include refelcting the seriousness of the offense, promoting respect for the law, and affording adequate deterrence (presumably general deterrence as well as specific deterrence).

Posted by: Valtrex Online | Nov 6, 2009 3:29:52 PM

I also will be closely watching if courts start to consider a range of mitigating offender circumstances โ€” e.g., family circumstances, drug dependency,

Posted by: buy generic viagra | Jan 20, 2010 3:26:49 PM

The parsimony provision seems flawed because it doesn't (and probably can't) specify HOW MUCH deterrence, protection of the public, and rehabilitation courts should strive to impose a sentence that is sufficient to provide.

Posted by: Nathan Larson | Dec 25, 2013 12:55:49 AM

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