June 25, 2008
Latest USSC data on crack retroactivity
A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The data represent cases received and coded by the Commission by June 12, 2008.
June 25, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
Strong SCOTUSblog coverage of Kennedy and Exxon
As regular readers know, I think many folks get overpunished in American society, but I have never had corporations and child rapists high on my list of those needing extra protection from the Justices. Nevertheless, as Kevin Russell effectively highlights in this effective post, a majority of Justices views differently as evidenced by the outcomes in Kennedy and Exxon .
Here are links to the two opinions, which I hope to consume and discuss later (perhaps much later) today:
The opinion by Justice Souter in Exxon v. Baker (07-219), the punitive damages case, is available here. The opinion by Justice Kennedy in Kennedy v. Louisiana (07-343), the child rape case, is available here.
In the meantime, everyone should check out the very copious and thoughtful commentary coming from Corey Yung (who gets cited in the majority opinion in Kennedy) at Sex Crimes.
Big SCOTUS day open thread
The Supreme Court will issue some of its final opinions this morning. Of course, SCOTUSblog is the best place to follow all the action. Also, How Appealing and The Volokh Conspiracy will surely have coverage and early commentary, too.
The two biggest cases I am looking forward to seeing are the Kennedy child rape case (archive here) and the Heller Second Amendment case (archive here). And the big Exxon case dealing with punitive damages might have some interesting punishment and due process dicta.
Because I will be on a plane during all the announcements, readers will need to supply the commentary until I get a chance to catch up this evening.
Examining the "school to prison pipeline"
A helpful reader sent me this link to an online journal of the Child Welfare League called The Link. Of interest for sentencing fans is an article starting on page six titled, "The School to Prison Pipeline and Criminalizing Youth: Costs, Consequences, and Alternatives." Here are two interesting paragraphs from the article's introduction:
There are likely no more distinct institutions in a society than schools and prisons. One, the school, is considered an institution that builds capacity that can serve as a ticket out of poverty and the gate that opens to a better future. The other, the prison, is used to contain those who society considers a threat to social well-being and cements poverty and diminishes opportunities. For most of the history of the United States schools were celebrated as institutions with open access to all, while prisons were disdained and hidden from view.
By the close of the 20th Century, however, these two institutions had, in some respects, reversed their positions in the social order. Public schools are under attack for being unable to educate children and characterized as bureaucratic, violent, and amoral if not immoral, venues. Charter schools, school vouchers, eroding property tax bases, and general taxpayer revolt challenge the funding for public schools. In contrast, the U.S. prison system is robust, taking up increasing portions of state and federal budgets. By the end of 2005, a record number of 2.2 million people were imprisoned in the United States.
Indiana post-conviction computer restriction on sex offender struck down
This local article, headlined "Sex offender law goes too far, court rules: Revision would have subjected computers to searches at any time," reports on a federal district court ruling finding constitutional problems with a new Indiana law. Here are the basics:
A federal court in Indianapolis ruled Tuesday that a major portion of the revised Indiana sex offender law cannot be enforced. The ruling came one week before the new law would have gone into effect.
The modified law would have required that convicted sex offenders, after they served their sentences and probation and parole time, agree to have their personal computers searched at any time and to allow their Internet access to be monitored.
Tuesday, U.S. District Court in Indianapolis ruled that requirement of the new law went too far. "These plaintiffs have rights under the Fourth Amendment," District Judge David F. Hamilton wrote in his ruling. "The state may not force them to waive those rights under threat of criminal prosecution for failing to do so."
Marcia Oddi's at the Indiana Law Blog, I was able to find this link to the 52-page ruling by Judge Hamilton. I suspect this case might make its way to the Seventh Circuit and perhaps further, as these issues seem likely to come up in various settings as part of the modern sex offender panic.
June 24, 2008
More on crying a river in capital cases
There are so many interesting versions of "Cry Me a River" to be found on YouTube (from Joe Cocker to a young Babs), but Time magazine has a different variation in this story about Ohio prosecutors crying a river over defense counsel crying during capital cases. Here is how the piece starts:
Defense attorneys in capital murder cases have often been accused of not working hard enough to help spare their clients the death penalty, in some cases even falling asleep in the middle of a trial. It's not often, though, that lawyers are accused of caring too much — or at least appearing to care too much — about the fate of the defendants they represent.
But that is essentially what state prosecutors in Ohio are claiming, as they try to ban attorneys from swaying a jury with the power of tears. Butler County assistant prosecutor Jason Phillabaum filed a motion last week calling on the judge to "prohibit" the defense from using emotional appeals to the jury during the upcoming capital-punishment trial of James O'Hara, who is accused of fatally stabbing Stanley Lawson last summer.
Some related posts:
- There's no crying in court (especially in a capital case)!?!?!
- Some sober reflections on emotions and the death penalty
- Reflections on reflections on emotions and the death penalty
Is Blakely showing its age as it turns four?
Today marks the four-year anniversary of the Supreme Court's profoundly important constitutional ruling in Blakely v. Washington. Its jurisprudential godfather, Apprendi v. New Jersey, will turn eight on Thursday. Both merit re-reading as a fitting celebration of their birth and jurisprudential development.
Though my first post on the Blakely case, headlined "Blakely..... WOW!!", still captures my feelings about the ruling, the passage of time has me rethinking my assertion in this July 2004 Slate commentary that "Blakely is the biggest criminal justice decision not just of this past term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court." (Notice that I included the term "perhaps," ever aware that I might later need to back-track from such an extreme assertion.)
Of course, the profound significance of Blakely on day-to-day criminal justice realities is still evident to anyone practicing in federal courts or in the dozens of other jurisdictions that have had their sentencing laws modified (or transmogrified) because of Blakely. Still, back in summer 2004, I really thought — perhaps hoped — that the Blakely Five, given the broad language and strong themes of the Blakely majority opinion, were prepared and eager to champion, through additional major constitutional rulings, the traditional adversarial procedures that Blakely extolled in a wide array of sentencing contexts.
Specifically, I expected the Blakely Five to take up quickly Sixth Amendment challenges to judicial fact-finding in diverse sentencing settings — e.g., revoking supervised release, ordering restitution. I also thought that the Blakely Five might be eager to reconsider the prior-conviction and mandatory minimum exceptions to the Apprendi principle. In 2004, I also believed that the Fifth Amendment holding and due process principles implicit in Blakely might find broad expression in all various sentencing settings (and I certainly did not expect to be still fighting uphill battles in lower courts against sentencing enhancements based on acquitted conduct).
Four years later, however, as lower courts continue to cabin the reach and impact of Blakely (as highlighted by a Tennessee high court ruling just today), it is hard to notice any continuing aftershocks of the Blakely earthquake. One obviously explanation, of course, is that the Booker advisory remedy provided a relatively easy "out" for the federal system and others dealing with the constitution complications Blakely created for structured sentencing systems. But, perhaps even more significantly, the Justices' apparent disinclination in the last four years to consider Blakely-expanding claims made by defendants has sent a clear (and intended?) signal to lower courts that the Justices are generally disinclined to follow-up on Blakely in any dramatic way.
Tennessee Supreme Court turns back Blakely challenges to consecutive sentencing
The Tennessee Supreme Court today in State v. Allen (Tenn. June 24, 2008) (available here), turns back two defendants' argument that Apprendi and Blakely limit judicial fact-finding to support the imposition of consecutive sentences. Here is a key paragraph at the start of the Court's analysis:
In Defendant Lumpkin’s case, the trial court ordered partial consecutive service after finding Lumpkin to be a “dangerous offender.” See Tenn. Code Ann. § 40-35-115(b)(4). In Defendant Allen’s case, the trial court ordered partial consecutive service after finding Allen to be “an offender whose record of criminal activity is extensive” and a “dangerous offender.” Id. § 40-35-115(b)(2), (4). Both Defendants argue that the imposition of consecutive sentences on the basis of these judicially-determined facts violates their federal constitutional rights as explicated in Apprendi and Blakely. The Defendants point to the Supreme Court’s statement in Blakely that “[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment’ and the judge exceeds his proper authority.” Blakely, 542 U.S. at 304 (citation omitted). The Defendants contend (1) that their effective terms of service, arrived at by adding together their consecutive sentences for separate offenses, is the punishment on which we must focus and (2) that the cumulative punishment they are facing could not have been imposed absent post verdict factual findings by the trial court; ergo, in violation of Blakely’s holding. As Defendant Lumpkin’s counsel puts it, “[t]he facts necessary to sustain the imposition of consecutive sentencing in this case are not included within the jury’s verdict of guilt of the individual offenses.” As set forth below, however, we are persuaded that neither Apprendi nor Blakely apply to a trial court’s post-verdict findings and decisions about the manner in which a defendant serves his discrete sentences for multiple offenses.
The Tennessee Supreme Court acknowledges that the US Supreme Court will be taking up this issue next Term in Oregon v. Ice, and the Allen opinion provides a nice primer on the debate that the SCOTUS Justices will have sort through.
UK judges not too keen on guideline sentencing
This interesting article from The Guardian, headlined "Judges fight plans for US-style sentencing," spotlights that judges across the pond are not interested in a guideline-sentencing system. Here are snippets from the article:
Plans for a US-style sentencing "grid" to try to contain prison numbers in England and Wales have been condemned by judges, the Guardian has learned. In their response to the government's proposals, which were trailed in the draft Queen's speech last month, the 652 circuit judges said: "The American dream would result in a nightmare in England and Wales."...
In their strongly-worded response, which has been seen by the Guardian although it has not yet been published, the circuit judges, responsible for most sentences passed in the crown courts, say it would be almost impossible to devise a framework for England and Wales. "It would be a blunt instrument resulting in unfairness and injustice," they add.
The circuit judges say they would see the creation of a sentencing commission as "a thinly disguised attempt by the state ... to ensure that the state achieves the result it desires, avoiding the inconvenient intervention of justice".... The judges also warn that by decreasing their discretion a sentencing grid would impact harshly on some groups of offenders, such as women with young children, who are often treated sympathetically under the current system.
Extended discussion of sentencing review by Second Circuit
The Second Circuit discusses Rita, Gall, and Kimbrough at great length in a new opinion today in US v. Jones, No. 05-5879 (2d Cir. June 24, 2008) (available here). There is a lot to chew on here that should be of interest to folks both inside and outside the circuit. Here is a snippet from one of many thoughtful passages from the panel in Jones (with lots of cites omitted):
Kimbrough and Gall both emphasize that, after Booker, the Guidelines’ claim on judicial respect derives from the fact that the Sentencing Commission “has the capacity courts lack” to frame Guidelines on the basis of “empirical data and national experience, guided by a professional staff with appropriate expertise.”
At the same time, however, the Court recognized that, to the extent certain Guidelines “do not exemplify the Commission’s exercise of its characteristic institutional role,” that fact could obviate the need for closer review of non-Guidelines sentences based on policy disagreements in “mine-run” cases.
"Appellate Discretion and Sentencing after Booker"
The title of this post is the title of this article by Lindsey Harrison now appearing on SSRN. Here is the abstract:
When the Supreme Court in United States v. Booker rendered the United States Sentencing Guidelines advisory, most analysts initially predicted that federal sentencing would be invigorated by a "surge of judicial discretion." Many defense attorneys and members of the news media hailed the decision a victory for criminal defendants, while others celebrated Booker for its emancipation of district court judges from the tyranny of the Guidelines. Less explored in Booker's immediate aftermatch was how the decision would affect the courts of appeals' review of district court sentencing decisions. What has resulted is primarily confusion about the role of the appellate courts in reviewing sentences. Several often seemingly conflicting imperatives are at play after Booker: the district court's discretion to impose a sentence unconstrained by the Guidelines, the obligation of the court of appeals to show deference to the substantive judgment of the district court, and the simultaneous authority of the court of appeals to review (and thus to disagree with) the substantive reasonableness of the sentence the district court has imposed. The challenge after Booker is, in light of these imperatives, how to define the scope of the courts of appeals' authority with respect to sentencing, or what I call "appellate discretion" to review district court sentencing decisions. Although there is a logical way to balance appellate discretion with deference to the district court, too often after Booker the courts of appeals have tipped to one extreme or the other.
In this article, I explore post-Booker sentencing cases in the courts of appeals. In Part II, I provide a brief history of sentencing law from before the adoption of the Sentencing Guidelines up through Booker, highlighting the changes in appellate discretion over this period coinciding with the shift from no Guidelines to mandatory Guidelines to the current advisory-Guidelines system. In Part III, I explore the confusion that has resulted since Booker, which has manifested in a series of circuit splits centering largely on the circuits' different understandings of their own discretion after Booker. I also explain how certain of these splits were resolved by the Supreme Court's decisions in Rita, Gall, and Kimbrough. In Part IV, I focus on the Eleventh Circuit's sentencing cases since Booker, Rita, Gall, and Kimbrough, exploring the underlying theme of the Circuit's struggle to define its own discretion. Finally, in Part V, I advance a modest proposal for what I view as the proper appellate role in sentencing decisions after Booker, proposing specific rules for appellate review based on the Supreme Court's guidance in Rita, Gall, and Kimbrough. By observing these rules, the Eleventh Circuit, and all of the courts of appeals, would more faithfully execute the type of limited abuse-of-discretion review that the Supreme Court has envisioned for the courts of appeals after Booker.
Lethal litigation to continue with dueling doctors in the first state
As detailed in this local article, the post-Baze litigation excitement in Delaware is taking place in local federal court. Here is the latest news from an article headlined "Doctors to testify on lethal injections: Each side in death-penalty suit to bring in an anesthesiologist":
A federal judge said she was "stunned" on Monday that Delaware has not adopted a U.S. Supreme Court-approved standard for carrying out executions to resolve a lawsuit challenging the state's use of lethal injection. District Judge Sue L. Robinson said it was clear to her that there are differences between Delaware's execution protocols and those used in Kentucky, which the high court found met constitutional muster earlier this year.
However, Robinson said, she does not believe she is qualified to tell if the differences are significant or not. "It is not a question of law. I need expert testimony." So she set Sept. 10 to hear from opposing experts in the class-action lawsuit brought by Delaware's death-row inmates. The civil action charges that the state's policies are so flawed -- and rarely followed -- that they violate the constitutional protection against cruel and unusual punishment.
"Three-crimes-a-day thief calls for tougher sentencing"
The headline of this post is the headline of this article from Canada's Globe and Mail. Here's part of the story:
For about four years, police have been routinely interviewing incarcerated chronic offenders in an attempt to figure out what makes them tick, and also to warn them that investigators are monitoring them....
Deputy Chief Le Pard said that police are "not alone" in seeking longer sentences for chronic offenders. "Our support came from the last place we would expect," he said.
That was an anonymous offender who turned himself in on a breaking-and-entering charge and, over the past weekend, had a few choice words about the justice system that he delivered to a member of the chronic-offenders unit, who recorded the conversation on video....
The 32-year-old lifelong criminal, who claimed to commit three break-ins a day in Vancouver before being voluntarily incarcerated, called the B.C. court system "a joke." "They are too lenient. They're too light. That's just how I think, that's how I feel. The crimes that I've committed, I should have gotten a lot more time," he said. "I'm sure if I wanted to I could go to court and get bail," he said. "They'd say, 'He 'fessed up to it,' you know, 'Just let him out.' I guarantee they'd let me out."
All of this was another bid by police to hammer home the view, first outlined by Chief Constable Jim Chu last week, that action is needed to deal with the city's worst chronic offenders, who tend to be lightly sentenced for property crimes fuelled by drug addiction even when they have up to 30 convictions.
June 23, 2008
Fifth Circuit begrudingly affirms looney mandatory sentence in Looney
With thanks to the folks who alerted me to the decision, I can encourage everyone to check out the Fifth Circuit's work today in US v. Looney, No. 06-10605 (5th Cir. June 23, 2008) (available here), in which the panel criticizes federal prosecutors for a stacked indictment which resulted in a functional mandatory life sentence 53-year-old woman's first offense. Here are the key closing paragraphs from the per curiam opinion in Looney:
We have carefully considered all of Ms. Looney’s challenges to her sentence and can find no basis upon which to vacate any portion of it. As we have noted, Ms. Looney was subject to a mandatory minimum sentence of forty years — essentially determined by Congress. Although Congress established the mandatory minimum terms of imprisonment, and further provided that the firearms counts must be served consecutively, it is the prosecutor’s charging decision that is largely responsible for Ms. Looney’s ultimate sentence. Instead of charging Ms. Looney with two separate § 924(c) offenses, the prosecutor might well have charged her with only one, which would have avoided triggering the twenty-five-year mandatory, consecutive sentence for the second firearm count. The prosecutors also could have chosen to charge Ms. Looney with the drug offenses and requested a two-level enhancement under the Sentencing Guidelines based on the involvement of firearms with the offenses. Instead, the prosecutor exercised his discretion — rather poorly we think — to charge her with counts that would provide for what is, in effect, a life sentence for Ms. Looney.
We do not question the authority — or the wisdom — of Congress’s decision to punish severely individuals who possess weapons in furtherance of drug dealing. Nor do we in any way minimize the seriousness of Ms. Looney’s offenses. Moreover, there is nothing legally improper about the prosecutors’ charging decisions with respect to Ms. Looney, nor about the practice of confecting an indictment that would provide for the largest mandatory sentence. Nevertheless, we must observe that the power to use § 924(c) offenses, with their mandatory minimum consecutive sentences, is a potent weapon in the hands of the prosecutors, not only to impose extended sentences; it is also a powerful weapon that can be abused to force guilty pleas under the threat of an astonishingly long sentence. For example, a defendant who sincerely and fervently believes in his innocence, and who has witnesses and other evidence that support his claim of innocence, could easily be pressured into pleading guilty under a plea agreement that eliminates the threat — rather than face the possibility of life imprisonment based on a prosecutor’s design of an indictment that charges and stacks mandatory minimum consecutive sentences. We merely observe that the possibility of abuse is present whenever prosecutors have virtually unlimited charging discretion and Congress has authorized mandatory, consecutive sentences. We trust that the prosecutors in this Circuit are aware of the potency of this weapon and its potential for abuse, and that they exercise extreme caution in their use of it, all in the interests of justice and fairness.
Eighth Circuit tries to unpack Kimbrough in en banc ruling
Resolving a post-Booker case that's been keeping the Circuit busy for years, the Eighth Circuit today issues another opinion in US v. Spears, No. 05-4468 (8th Cir. June 23, 2008) (en banc) (available here). Here is the unofficial summary from the Eighth Circuit's terrific opinion page:
On remand from the Supreme Court for reconsideration in light of Kimbrough v. United States, 128 S.Ct. 558 (2007). For the court's earlier opinion in the case see United States v. Spears, 469 F.3d 1166 (8th Cir. 2006) (en banc). In light of Kimbrough, the court adopts the determination that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only; district court erred by categorically rejecting the ratio set out in the Guidelines, by substituting its own crack to cocaine ratio and by failing to conduct any additional analysis of the factors set out in 18 U.S.C. Sec. 3553(a); case remanded for further proceedings. Judge Murphy, concurring. Judge Colloton, dissenting, joined by Wollman, Bye, Melloy and Smith.
UPDATE: A helpful commentor notes that the Third Circuit's post-Kimbrough insights in the Gunter case were handed down this month and can be accessed here. The story of crack sentencing in federal court has so many chapters, it is hard to keep them all straight.
Lots of criminal technicalities in SCOTUS cert grants
As detailed here at SCOTUSblog, the Supreme Court granted cert in seven cases today, three of which involve criminal justices issues. In my view, the criminal cases granted today do not have any blockbuster potential, although I find intriguing that a grant in one case indirectly brings state clemency issues before the court. Here is the SCOTUSblog account of this case from the Sixth Circuit to be argued next Term before the Justices:
Case name: Harbison v. Bell
Issue: Whether the Terrorist Death Penalty Enhancement Act of 2005 provides prisoners sentenced under state law the right to federally appointed and funded counsel to pursue clemency under state law, and whether a district court’s denial of such a request may be appealed without a certificate of appealability.
Supreme Court vacates in Greenlaw and Rothgery
Here's an early report from SCOTUSblog on the two criminal justice opinions released by the Supreme Court this morning:
The Court has released the opinion in Greenlaw v. United States (07-330), on whether a federal court of appeals may increase a criminal defendant’s sentence in the absence of a cross-appeal by the government. The ruling below, which increased the defendant’s sentence, is vacated and remanded. Justice Ginsburg wrote the opinion. Justice Alito dissented, joined by Justice Stevens and joined in part by Justice Breyer....
The Court has released the opinion in Rothgery v. Gillespie County (07-440), on the point at which adversarial proceedings have been initiated against an individual for purposes of triggering his Sixth Amendment right to appointed counsel. The ruling below, which found for the state, is vacated and remanded. Justice Souter wrote the opinion. The Chief Justice and Justice Alito wrote concurring opinions. Justice Thomas dissented. We will provide a link to the decision as soon as it is available.
A link to the decision in Greenlaw, which has a particularly interesting line-up of Justices, is now available here. A link to the decision in Rothgery is now available here. Commentary on these rulings will follow later today.
SCOTUSblog reports that the next release of opinions will be Wednesday morning, and the folks there also sensibly speculate that Justice Scalia is going to be the author of the majority opinion in the Heller Second Amendment case.
Any provocative predictions for the big SCOTUS week?
It is widely expect that the Supreme Court will issue its final 10 opinions of the term this week, with some coming this morning and the rest likely handed down later in the week. Of course, SCOTUSblog is the best place to follow all the action
The two biggest cases I am looking forward to seeing are the Kennedy child rape case (archive here) and the Heller Second Amendment case (archive here). But a number of other cases due this week could also be sleepers for sentencing fans. For example, the big Exxon case dealing with punitive damages might have some interesting punishment and due process dicta.
Other than predicting that Justice Anthony Kennedy will re-emerge as a swing Justice and that a few other Justices may say some unexpected things (like Justice Scalia did last week), I have no profound predictions to make going into the week. But perhaps readers do, and nows the chance to make bold predictions in the comments before the opinions start coming down in a few hours.
The popularity of LWOP instead of death in Ohio
This local AP story provides a great account of the impact in Ohio of the state's recent creation of an LWOP option in cases that would otherwise be death-penalty-eligible. Here are snippets from an interesting piece:
Prosecutors around Ohio, citing the ability to pursue harsh punishment without going through the complication and expense of a death penalty case, are starting to take advantage of the 2005 law, according to a review of state records by The Associated Press. The number of death penalty indictments sought statewide dropped 32 percent from 2004 to 2007, according to figures compiled by the Ohio Public Defender's Office.
Meanwhile, the number of life without parole sentences rose by more than two-thirds in the three years since the law took effect compared with the three years before, when 45 inmates entered prison with the permanent life sentence, according to the Department of Rehabilitation and Correction. Ten offenders have received the sentence so far this year....
The new law is attractive to prosecutors because of the cost of capital punishment trials and because juries increasingly prefer life without parole as a death penalty option, said State Public Defender Tim Young.
A death penalty trial can easily top $100,000 for a county as extra staff, investigators and psychological experts are hired by the defense and prosecutors. It's not inexpensive for a large county but can drain the annual budgets of smaller counties without help from the state. "If you can come to a life without parole option without having to go through that cost and it satisfies the public's need for safety and punishment, then that makes a real reasonable outcome for everyone involved," Young said.
June 22, 2008
Deconstructing the federal career offender guidelines
As noted here, the federal defenders' first paper in its important "Deconstructing the Guidelines" project addressed the child porn guidelines (and has already been cited by a district court to justify a below-guideline sentence). I now see that a second paper has now been posted, and it is titled "Deconstructing the Career Offender Guideline." This extraordinary paper runs 50 pages, and can be accessed here along with helpful appendices. Here is part of the paper's introduction:
The career offender guideline does not reflect “empirical data and national experience” and “do[es] not exemplify the Commission’s exercise of its characteristic institutional role.” Kimbrough, 128 S. Ct. at 575....
Part II (pp. 32-42) describes a variety of evidence demonstrating that the [career offender] guideline produces punishment that is greater than necessary to satisfy any purpose of sentencing, and that creates unwarranted disparities, including racial disparity, and unwarranted uniformity, while being more costly today than projected in 1987 due to the Commission’s substantial expansion of the career offender category. The evidence consists of the Commission’s own critical findings, available sentencing data, judicial decisions, and some data on the growth of the career offender population.