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July 26, 2008

Are we headed toward virtual sentencing proceedings?

Because I am always interested in the intersection of sentencing and technology, I found notable this local story headlined "Sentencing in steroid case is first by videoconference."  Here are excerpts:

The sentencing Thursday in federal court was typical in every way except one.  While the judge and the attorneys were in a courtroom in Scranton, the defendant was 900 miles away in Minneapolis.  In what is believed to be a first for the William J. Nealon Federal Building & U.S. Courthouse, a woman arrested as a result of an illegal steroid investigation was sentenced by videoconference.

U.S. District Judge Thomas I. Vanaskie sentenced Cathy Jones, 43, to two years’ probation for her guilty plea earlier this year to aiding and abetting possession of anabolic steroids. Judges at the courthouse have accepted guilty pleas by videoconference, but there had never been a sentencing, Judge Vanaskie said afterward....

Judge Vanaskie said he was pleased the dignity of the proceeding was maintained. He was also surprised that the video link did not lessen the emotional impact when Ms. Jones addressed the court, sobbing as she told the judge, “I’m just trying to start a new life.”

“I was worried about that — that it was too sterile,” Judge Vanaskie said. “But I didn’t have that impression today.”  The judge said while such proceedings may become more common, they will not become the norm.  He cited the unique circumstances of Ms. Jones’ case — she pleaded guilty to a misdemeanor, and the sentencing guidelines indicated a probationary sentence. If she had been facing imprisonment, he probably would not have agreed to the videoconference, he said....

Ms. Jones, who was living in Somerset, Texas, at the time of her arrest, has since separated from her husband and moved to Minnesota to be closer to her family.  She asked to be sentenced by videoconference, saying traveling to Scranton would be a hardship because of her limited means.

I am pretty sure that videoconference sentencings have previously taken place when the defendant has requested the use of technology to avoid the costs and hassles of travel to a distant courthouse.  And once the technology is put in place and participants get accustom to the process, I suspect sentencing by videoconference could become common because if it proves to be a significant cost-saver for underfunded court systems.

July 26, 2008 at 11:31 AM | Permalink


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If I recall correctly, these things are done by consent of all parties. At some level, I believe, there is a constitutional right to be physically present during sentencing.

Posted by: S.cute.us | Jul 26, 2008 12:51:28 PM

C. The Recent Universal Appellate Rejection of “Presence” At
Sentencing Via Video Conference or Telephone Reinforces the
Fundamental Argument Set Forth, Supra

Appellant respectfully invites the Court’s attention to the following
more comprehensive and contemporary appellate cases from those
Courts which have considered whether defendant has an unqualified
right to be “present” at sentencing under Rule 43(A)(3), FED. R. CRIM. P. –
read in para materia with the duties of the Court which were abridged by virtue of the defendant’s documented involuntary absence from a
material portion of the lengthy sentencing proceeding (the transcript of
which was previously filed, noting defendant’s absence at outset).
Though the Eleventh Circuit does has not ruled on this issue directly,
the overriding majority of reported appellate and district courts which
have considered the Rule 43 presence at sentencing issue which dominates in the context of whether use of electronic video vitiates and
categorically repudiates the validity of defendant’s absence, mandating “physical presence” at sentencing— the courts have vigorously rejected the notion that a defendant is “present” at “sentencing” for Rule 43 purposes when connected to the sentencing proceeding via video conference therefore requiring defendant’s physical presence in open court during the entire sentencing proceeding.
In United States v. Torres-Palma, 290 F.3d 1244 (10th Cir.2002), the
United States Court of Appeals for the Tenth Circuit addressed "the
question of whether the use of video conferencing at sentencing violates the provision of Fed. R.Crim. Proc. 43, which requires a defendant to be 'present' at imposition of sentence," Judge Porfilio noted that, "[w]hile certain exceptions to that mandate are granted in Rule 43(b), [see e.g., Note 2, supra]none of them explicitly permits the use of video conferencing." Id. at 1245. The Tenth Circuit addressed the advantages of advances permitting video conferencing, about the caseload in New Mexico, and about the limited judicial resources within the District, clearly and categorically NOT at the expense of abridging constitutional rights.
Yet notwithstanding such technological advancements, the law still requires a remand for resentencing on Rule 43 grounds ("[W]e find ourselves unable to reach any conclusions other than the word, 'present,' in the context of Rule 43, means the defendant must be physically present before the sentencing court." Id. at 1245 (emphasis added). See also United States v. Lawrence, 248 F.3d 300 (4th Cir.2001)(Judge Wilkinson, writing for a unanimous panel, held that "presence" in Rule 43 means physical presence and remanded the case. Id. at 301); and, United States v. Navarro, 169 F.3d 228 (5th Cir.1999)(same).

Judicial notice has been taken that federal district courts do not
accept guilty pleas and impose sentences by telephone. Tabbert, Hahn,
Earnest and Weddle, P.C. v. Lanza, 94 F.Supp.2d 1010, 1016, n. 4 (S.D.
Ind. 2000). See also United States v. Leavitt, 478 F.2d 1101 (1st Cir. 1973); United States v. Persico, 87 F.R.D 156 (E.D.N.Y. 1980); Cureton v. United States, 396 F.2d 671 (9th Cir. 1968).
The first step in interpreting Rule 43 is to consider the plain, ordinary
meaning of the language of the Rule. See United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989).
The definition of “presence” in BLACK'S LAW DICTIONARY is:
[An]Act, fact, or state of being in a certain place and not elsewhere, or within sight or call, at hand, or in some place that is being thought of. The existence of a person in a particular place at a given time particularly with reference to some act done there and then.

BLACK'S LAW DICTIONARY 1065 (5th ed.1979) (emphasis added). The
whole dictionary definition suggests that the common-sense meaning of
“presence” is physical existence in the same place as whatever act is
done there. The Webster's definition suggests a similar meaning. WEBSTER’S THIRD INTERNATIONAL DICTIONARY defines “presence” as:
The fact or condition of being present: the state of being in one
place and not elsewhere: the condition of being within sight or call, at hand, or in a place being thought of: the fact of being in
company, attendance or association: the state of being in front of or in the same place as someone or something.

Id. at 1793 (1981)(emphasis added).

In summary as to this point, there is no permissible calculus of constitutional or statutory interpretation which permits defendant to be involuntarily absented—under color of federal law by virtue of custody by the US Marshal when sentencing commenced— and throughout the proceeding until record evidence reflected his presence, in isolation, for allocution, but not dispute or comment on the Presentence Investigation Report (PSI), as set forth, infra, and the sentence, therefore, must be vacated and remanded for de novo proceedings and in accordance with Booker v United States, supra, which the government concurs would apply if remanded.
The cases conclusively establish that defendant’s Rule 43 rights were abridged to a constitutionally and statutorily significant degree mandating the granting of defendant’s first direct appeal of right and a remand for de novo resentencing with defendant physically present throughout the proceeding as required by law.

Posted by: benson weintraub | Jul 26, 2008 4:12:03 PM

In my district, some of the judges have dockets in distant satellite courthouses, and this topic has been discussed. I'm not sure even the judges who would be convenienced feel too good about video sentencings. It is too sterile.

Posted by: cja | Jul 27, 2008 10:43:06 AM

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