December 28, 2006
Judge Gertner clarifies her work...
In this post titled "Judge Gertner takes on the career offender guidelines," I noted Judge Nancy Gertner's latest sentencing opinion, which prompted some interesting comments. Judge Gertner has now followed up with this e-mail to me:
Your snippet is wrong... and your responders have gone off in the wrong direction.
I don't "take on the guideline" per se as in the crack cocaine guideline situation. I am saying that there are limitations in the career offender guidelines (that the Commission recognized, in the 15 year report, that courts have recognized in the departure rate) and as such they are woefully over inclusive... There may be cases in which they are applicable and perfectly reflect the purposes of sentencing and cases in which they are not.
In a sense, I am setting up a Booker analysis --- in this individual case they ARE wrong. The results in the individual cases were tied to codefendant disparity, to proportionality i.e. the three career offenders included a supplier, and a gofer, all at the same range, to the age of the defendant (one was 79! ). In other words, the results were keyed to the individual case. I just wanted to understand why -- what about the guideline -- led to these inappropriate results.
December 28, 2006 at 09:49 AM | Permalink
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Judge Gertner's right, and I think the rest of her memorandum bears that out. As I said initially, my comments were based on having read only the quoted passage. Perhaps that should have led me not to comment at all.
I'll add, though, that this illustrates the difficulty in practice of distinguishing between non-Guidelines sentences based on disagreement with "policy" reflected in the Guidelines and non-Guidelines sentences based on case-specific concerns not adequately accounted-for by the Guidelines. It could be argued that the "overinclusiveness" of the career offender guidelines is a feature that Judge Gertner finds objectionable rather than a bug.
Posted by: Bill | Dec 28, 2006 10:45:10 AM