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February 5, 2005

Report from a great Yale Booker panel

With the rush of happenings in the last few days, I did not get a chance to note that Yale Law School had put together, as detailed here, an amazing panel to discuss Booker.  Fortunately, YLS student Will Baude was in attendance, and he provides an extended account of the event in this post.  In addition to learning that this blog got a plug, I was amused and intrigued by the report on Deputy Solicitor General Michael Dreeben's discussion of the Booker "paradox" and this report by Will:

[Dreeben] suggested that we were likely headed to rule by 500 different philosopher-kings, but "I'm speaking provocatively because I admire philosopher-kings."

I cannot help but wonder if this final statement from Dreeben was influenced by the fact that he was sharing a panel with US District Judge Nancy Gertner (although I suppose the right term would then be "philosopher-queen").  Speaking of Judge Gertner, her comments as reported by Will were also interesting, and it reminded me that we are still awaiting her "official" take on Booker.  (Recall that Judge Gertner's opinion in US v. Mueffelman, 327 F. Supp. 2d. 79 (D. Mass. 2004), came closest to "predicting" Booker and helped earn her a spot in my mythical Sentencing Judges Hall of Fame.)

Will's entire account of the Yale event is a great read, and he also reports on comments by Professor (and FSR Founding Editor) Dan Freed and by David Fein, a former federal prosecutor and now white-collar defense lawyer.  I would be eager for any other attendees to add more details in the comments.

February 5, 2005 at 07:23 AM | Permalink

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I had the good fortune to attend yesterday’s panel discussion, which, in addition to featuring Judge Gertner and Prof. Freed, was moderated by Prof. Kate Stith. Having read Will’s thorough review, here is what I can recall (no notes taken):

The paradox to which Michael Dreeben referred (note: he was speaking for himself, not the Department of Justice) concerned the idea of maintaining uniformity between similarly-situated defendants under a system governed by a standard of reasonableness. If one court imposes a sentence consistent within the range prescribed by the Guidelines; another, for articulated reasons, imposes a lesser, “non-Guidelines sentence” (as that term is used in Crosby); and another shorter still, how does a Court of Appeals distinguish between which is reasonable and which is not. It was in this context that he made the comment re: the 500 philosopher-kings. While thought provoking, the main issue I had with Dreeben’s analysis was the failure to acknowledge the parameters that 18 USC § 3553 establishes (those within which courts must base sentences and articulate their reasoning) as well as the guidance to be provided by the inevitable body of forthcoming case law (see below).

Former SDNY AUSA and current white-collar defense attorney David Fein spoke to what Booker means for the defense bar. He questioned the continuing value of cooperation (a.k.a., 5K1.1 motions), particularly for those not facing mandatory-minimum sentences. Fein observed that under past practice, it was often in a client’s best interest to be the first in the door at the U.S. Attorney’s Office offering assistance, but that incentive now appears lessened. In addition to increases in the number of cases proceeding to trial, Fein opined that we may see more Fed. R. Crim. P. 11(c)(1)(C) plea agreements.

Judge Gertner next weighed in. With respect to the spectrum of options and middle ground described in Will’s post, Judge Gertner noted that following her decision in Muffleman, she has sentenced ten-to-12 defendants viewing the Guidelines as advisory (though for different reasons than the Booker majority). Elections she makes not to follow the Guidelines often result from interpretation of the rationale for a defined punishment and the facts and circumstances in a given defendant’s case. She cited one recent case where loss attributions unduly inflated a defendant’s sentencing range because he did not profit from the scheme based on how much was illegally gained; he was paid a nominal hourly rate. Believing that the loss table, like the drug quantity table, is designed to correlate to an offender’s degree of culpability, Judge Gertner feels that in certain circumstances, it is improper to rely on the resultant sentencing range.

What was perhaps most interesting about her comments was her frustration with the lack of guidance the Commission provides in terms of defining or explaining Guidelines’ provisions. Judge Gertner stated that she once called the Commission to inquire about the reasoning for a given enhancement (e.g., history of the amendment) and was essentially told that courts were supposed to figure it out themselves. This dearth of legislative history or meaningful explanation as to what type of behavior a given penalty or enhancement is intended to punish, seems to be a source of motivation for the analysis found in many of Judge Gertner’s opinions.

One other quick point re: the e-mail that Will notes “somebody” sent to 400 district court judges following Judge Cassell’s Wilson opinion. According to Judge Gertner, that “somebody” was actually another judge. And, while Judge Gertner sent a reply e-mail offering her thoughts, she sensed from reviewing others’ responses, that many judges feel comfortable continuing to abide by the Guidelines. This, of course, raises Sixth Amendment concerns addressed in Booker.

Finally, Daniel Freed spoke. And, if there could be one criticism of the entire afternoon, it would be that he did not go first because of the wonderful insight offered into the history of the Guidelines from which Booker evolves. Where Prof. Stith suggested in the introductions that Prof. Freed may have developed the concept of guidelines sentencing before Judge Frankel’s Criminal Sentences: Law without Order, he said that no, in fact, he and Dennis Curtis had received an early draft of the book and decided its thesis should serve as the basis for a formal dialogue within the school. From that came the workshop and book that Will notes -- a book that was forwarded to Senator Kennedy’s office in the mid-1970s.

In terms of the Guidelines, Prof. Freed commented that there were problems from the outset. Their promulgation was a year delayed due to problems with the initial Commission appointments, then the first draft submitted for judicial comment was roundly criticized due to its extreme complexity. When a revised draft was circulated, many groups (e.g., judges, the ABA) stepped forward and recommended that Congress delay implementation of the guidelines system pending further review and modification. Congress did not intervene, however, and the first Guidelines Manual -- that disavowed by the academic community which supported guidelines sentencing -- became effective.

In terms of Booker’s implications, Prof. Freed said that if history is any indication, we should expect a gradual curbing of any short-term expansion of judicial discretion. Following enactment of the Guidelines, the Sentencing Commission publicly decried courts’ deviation from defined sentencing ranges to which the Judicial Conference responded by citing the departure-type language found in 18 U.S.C. § 3353(b)(1). This was followed by the Courts of Appeals slowly eroding sustainable bases for departure to a point where they are no longer seen as a natural part of the guidelines framework, as they were intended.

During the Q&A session, Judge Gertner noted that Booker marks Justice Breyer’s fourth bite-at-the-apple in formalizing non-adherence to the guidelines in appropriate circumstances. First, she felt that as an attorney with Senator Kennedy’s office who was involved in the drafting of the Sentencing Reform Act, he played a role in 3353(b)(1)’s aforementioned departure language. Second, as an original member of the Sentencing Commission, he helped devise the notion of the “heartland” of ordinary cases. Third was his work as judge on the U.S. Court of Appeals for the First Circuit (see, e.g., United States v. Rivera, 994 F.2d 942, 946 (1st Cir. 1993)) and his opinion for the majority in Koon. [A personal aside: also telling are comments made during a speech in 1998. Discussing the Guidelines’ length and complexity and attorneys’ and judges’ compulsion to make legal distinctions, Justice Breyer observed that the Guidelines should be as concise as possible: “There is little, if anything, to be gained in terms of punishment’s classical objectives by trying to use highly detailed offense characteristics to distinguish finely among similar offenders…(It) is like ranking colleges or the ‘liveableness’ of cities with numerical scores that reach ten places past a decimal point. The precision is false.” To bring home this point, he reminded the audience that “the goal of the Sentencing Guidelines was not perfect, but increased, fairness.” See Breyer, J., Federal Sentencing Revisited, Remarks at the Univ. of Nebraska College of Law Roman L. Hruska Institute (Nov. 18, 1998)].

Also, at one point, Prof. Freed observed that research shows that even in the post-Guidelines era, sentencing practices tend to be regional. In other words, attorneys appointed to serve on the federal bench tend to follow prevailing concepts of justice within the jurisdictions in which they practice, which implies that national uniformity may be an unrealistic or unattainable goal.

That’s about it. Obviously none of the foregoing is verbatim, and some it may be what I interpreted the presenters as saying.

Posted by: Todd Bussert | Feb 5, 2005 1:10:32 PM

Thanks, Todd, very insightful report. Much appreciated.

Posted by: Doug B. | Feb 5, 2005 3:16:11 PM

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