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August 15, 2008

Judge Colloton calls upon Congress to address the post-Gall world

In a concurrence to an Eighth Circuit reasonableness opinion in US v. Shy, No. 06-4011 (8th Cir. Aug 15, 2008) (available here), Circuit Judge Steven Colloton expresses concerns about sentencing disparity in the post-Booker world and urges Congress to do something about it.  Here are some key passages from the concurrence:

The reason that the [below-guideline probation sentence at issue] must be affirmed is that in the aftermath of Booker, and especially Gall, the courts of appeals have only a modest role in reviewing the substantive reasonableness of sentences imposed above the statutory minimum sentence....

That the appellate court reasonably believes that a greater sentence was appropriate — i.e., that a longer term of imprisonment was necessary to satisfy the purposes of § 3553(a)(2) — is insufficient reason to reverse the district court.  And with respect to “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), which was thought by many after Booker to justify a more rigorous appellate review of sentences that varied substantially from the advisory guideline range, the Court indicated that because the sentencing judge in Gall merely “correctly calculated and carefully reviewed the Guidelines range, he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities.” 128 S. Ct. at 599.

Within this framework, there is little room for a court of appeals to say that one judge was unreasonable to impose a sentence substantially above or below the guideline range while another was reasonable to sentence within the guidelines, or vice-versa. As it was before the Sentencing Reform Act of 1984, sentencing judges have a great deal of discretion to sentence within the wide boundaries of the statutory range of authorized penalties.  There is some degree of appellate review for substantive reasonableness that did not exist prior to the Act, and appellate courts are permitted to “take into account . . . the extent of any variance from the Guidelines range,” id. at 597, but this appellate review is quite different from that conducted under the mandatory guidelines system envisioned by Congress or even from the “proportionality review” applied to variances from the guidelines by courts of appeals in the period between Booker and Gall.  The reality is that a defendant’s ultimate sentence now depends substantially on the personal sentencing philosophy of his or her sentencing judge.

It is for Congress and the Executive to decide whether the system resulting from Booker and Gall constitutes good or bad sentencing policy.  As the policymaking branches assess recent developments, however, we should not through our opinions create the illusion that it is only an “extraordinary” case, where a sentencing judge gives “persuasive reasons,” in which a court of appeals must uphold a sentence that is substantially above or below the advisory guideline range.  A defendant just like Burton may receive a sentence of 37 months’ imprisonment or she may receive a sentence of probation, depending on the discretionary (and, no doubt, good faith) judgment of individual sentencing judges — judges who may occupy chambers in the same judicial circuit, the same district or even the same building. Whether that sort of disparity is tolerable in the federal criminal justice system, or whether there is need for legislative reform consistent with the Sixth Amendment, see, e.g., Gall, 128 S. Ct. at 603 (Souter, J., concurring), is a matter for serious deliberation.

August 15, 2008 at 02:42 PM | Permalink

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Comments

Who says appellate judges have to have anything to say about sentencing? Judge Colloton and the rest of the Eighth Circuit had no problem at all rejecting rational, judicious, humane below-guideline sentences simply because the appellate judges believed -- inaccurately -- that the Guidelines formed the be all and end all of fairness -- big deal if the only individual circumstance the guidelines deems relevant is the aggravating factor of criminal history.

To paraphrase the powerful and spot on observations of The Sentinel after the Booker remedy appeared, it's easy for appellate judges to enact long sentences. Unlike district court judges, appellate judges never have to look into the faces of the accused. Appellate judges don't sit in a position to be able to second guess a district court's judgment that a guideline range sentence will snuff out an individual's capacity to rehabilitate himself. Appellate judges "never have to worry if a person who is easily redeemable will lose her young adult hood to prison. They don't have to see the humanity they lock up." Appellate judges have plenty of things they get to do without feeling they've lost a chance to jump on criminal defendants. The only non-guideline sentences the Eighth Circuit liked prior to Gall consisted of way above-guideline sentences. .

Posted by: jjd | Aug 15, 2008 3:29:01 PM

Funny how in every area but sentencing, a standard of review akin to "abuse of discretion" pretty much guarentees affirmance. Appellate courts routinly let evidentiary ruling and other discretionary decisions stand because, even if they were wrong, they were't an abuse of discretion.

But use your discretion to go downward, and you'd better dot all your i's.

Posted by: Anon | Aug 15, 2008 3:47:39 PM

I'm sure the defense bar does not want Congress to address the post-Booker sentencing regime, since (after all) Booker came about precisely because the defense bar wanted a judicially devised way around mandatory (and often-times) high sentences. Put simply, the notion that judges should be obligated to respect the sentencing choices enacted by Congress is anathema.

Posted by: Da Man | Aug 15, 2008 4:08:01 PM

Colloton makes a rather obvious observation - the sentencing fate of any given defendant depends upon which sentencing judge he/she draws. In Iowa (I can't remember if these judges are in the same district), for example, if a defendant draws Chief Judge Reade - he's likely to get a far more lengthier sentences, than if he/she had Judge Bennett presiding. There are plenty of problems with Colloton's concurrence. But I will higlight just three:(1) disparity existed plenty under the sentencing guidelines - a point he never acknowledges while implying that the Guidelines were some sort of panacea; (2) Colloton (along with most courts of appeals' judges) hardly batted an eye when a district court judge imposed a sentence above the recommended Guidelines' range; and (3) prosecutorial discretion plays a significant role in what possible (or actual) sentences defendants might receive.

In short, Colloton's claim: "The reality is that a defendant’s ultimate sentence now depends substantially on the personal sentencing philosophy of his or her sentencing judge" is demonstratably false.

Posted by: Alex | Aug 15, 2008 4:15:56 PM

Maybe Congress will take up the reasonableness of mandatory sentencing at the same time.

Posted by: George | Aug 15, 2008 4:55:37 PM

This opinion by Judge Idiot Head (I'm sorry) is exactly what drives me up the wall. If an appellate judge refuses to us his discretion to evaluate whether the district judge abused his discretion is not a problem for Congress; it reflects that judges own refusal to judge. I thank Doug for bringing this opinion to light because it is going to become Exhibit A and serve as the prefect illustration of what I mean when I say that our appeals system is no longer a system of judges but a system of clerks. I cannot help but wonder if Judge Colloton has ever had an independent thought in his life. Has he spent his entire career listening to his momma, who was then replaced by his law school professor, who now is replaced by Congress?

"That the appellate court reasonably believes that a greater sentence was appropriate — i.e., that a longer term of imprisonment was necessary to satisfy the purposes of § 3553(a)(2) — is insufficient reason to reverse the district court."

As it always has been, at least in modern times. The fundamental problem here is a blind, obstinate refusal to accept any responsibility whatsoever for decision making. It is possible to construct a reasonable medium between a rampant lawlessness and the world of Kim Jong Il. A world where a district judges do not get to do whatever he/she wants and yet there is no mathematical formula for sentencing. It is this world that the SC expects the appeals courts to create. And what is Judge Perpetual Child response to this task? To whine and complain and to say, "well, I'm gonna let those district judges run wild until someone tells me what to do. Help me momma, help me." It would be funny if it weren't so humanly sad. I am honestly beginning to think that there are some judges who have become so used to the whip and the chain that freedom frightens the heck out of them and leaves them lost and confused.

Posted by: Daniel | Aug 15, 2008 5:23:50 PM

I could easily see Congress choosing to go the jury BRD route if they re-enter the mandatory sentencing arena again. And I could see that making any sort of departure/variance all the harder.

Posted by: Soronel Haetir | Aug 15, 2008 5:35:48 PM

This is interesting form a judge that reversed virtually all variances post Gall - pre Booker and virtually all departures and created more sentening disparity than any district court judge by leading the 8th circuit on a rampage of extremely high sentences that were totally out of wack with other circuits. As a former prosecutor he has seldom met a government argument he didn't salivate over. He has never sentenced a criminal defendant. His soulmate in harsh setnencing , Judge Riley, is the one who recently got reversed by the Supremes for sua sponte increasing a sentnece by 15 years when the prosecution did not cross appeal. In case you forgot Judge Colloton is is congress that passed 3553(a). Colloton would leave the discretion in AUSA's rather than Article III judges , that is unless he can be the one to hammer defendants with harsh and ridiculous sentences rather than defer to expereinced district court judges that have sentenced thousands of defendants.

Posted by: James Law | Aug 15, 2008 9:01:58 PM

Why does everone talk about people charged with the same crime and getting different sentences as being evidence of "unwarranted sentence disparities"? These are the same judges who have no problem saying the district judge is in the best position to judge the facts and circumstances for sentencing purposes when a defendant complains that a sentence is too high.

Sentence disparity is not fine. It's justice. Unwarranted sentence disparity is bad, but the burden should be on the person whining about leniency to show that the disparity between two different sentences is "unwarranted."

Posted by: Bruce | Aug 16, 2008 6:23:23 AM

Every judge, trial or appellate, should spend a week in a maximum security prison. For this they could get a waiver on going to judicial college. Their law clerks could receive a nice vacation, their spouses could go to Las Vegas, and some defendants might get some justice down the road.

In the 1970s there was a district judge in St. Louis who sentenced every concientious objector defendant to the maximum five years. Quakers who opposed killing went on trial for refusing to kill and were sent to prison for five years. The 8th Circuit did little. Then they started waking up. Kind of when the Vietnam War was over. Then the Bush administrations packed the 8th Circuit with ridgid neo cons who think that giving someone a break is only done on the Homer Simpson show.
Judge Colloton is a courteous and thoughtful judge. Some of you are a bit rough. Colloton's suggestion that Congress give some attention here is correct. The guidelines ought to be scraped, sentences should be drastically shortened, and hundreds of federal crimes be wiped off the books. We have over 2 Million people locked up and many could be freed and society would be better off. Legislative reform consistent with the Sixth Amendment would allow the jury to sentence in every single case. If it was good enough for Hamdan, its good enough for me.

Posted by: mpb | Aug 16, 2008 11:48:28 AM

Dan said: "The fundamental problem here is a blind, obstinate refusal to accept any responsibility whatsoever for decision making."

My thoughts exactly. Bravo, Dan.

Posted by: CJA | Aug 16, 2008 3:58:23 PM

mpb I couldn't agree more, but I get the impression Colloton is more annoyed at lenient, below-guideline sentences than above guideline sentences.

I too have suggested that all judges - and prosecutors - should have to spend some minimum time in prison. If we're going to sentence by the month, then they should have to spend at least one month in prison. I'd like to require all prosecutors to spend one year in prison, but that's not practicable and nobody would be prosecutors. All sentences should be shortened by 1/10th. The maximum sentence possible should be 20 years, with parole for good behavior. No ordinary "penal code" crime is worth more than that. By ordinary crime I mean murder, rape, theft, etc. Not mass terrorism, genocide, treason, and certain crimes during wartime (real, declared war against a nation, not a "war against " catchphrase).

Posted by: bruce | Aug 16, 2008 5:49:21 PM

I could easily see Congress choosing to go the jury BRD route if they re-enter the mandatory sentencing arena again. And I could see that making any sort of departure/variance all the harder

Posted by: sohbet | Oct 9, 2008 9:46:50 PM

Maybe Congress will take up the reasonableness of mandatory sentencing at the same time.

Posted by: müzik dinle | Oct 17, 2008 10:38:48 AM

Maybe Congress will take up the reasonableness of mandatory sentencing at the same time.

Posted by: müzik dinle | Oct 17, 2008 10:39:07 AM

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