Sentencing Law and Policy

"Souter to retire, NBC-TV reports"

This title of this post is the title of this report at SCOTUSblog by Lyle Denniston.  Here is how it begins:

Justice David H. Souter has decided to retire when the Supreme Court completes its current Term in early summer, the NBC-TV network reported Thursday night.  The 69-year-old jurist, who is completing his 19th year on the Court, has passed word of his plans to others, and the White House has been told, according to the network’s account.  Other news organizations also were reporting that Souter has made his decision not to continue serving.

Anyone want to start throwing out names for the next Justice?

UPDATE:  Lots of links to major media coverage has been assembled here at How Appealing.

PA death row defendant, tired of delays though asserting innocence, asks to be executed

Pennsylvania's death row has over two hundred defendants, but the state has executed only three defendants in the modern era.  As detailed in this local story, one defendant is tired of waiting to leave death row via execution:

An Altoona man on death row has sent a letter to Gov. Ed Rendell asking that his death warrant be signed, thereby carrying out a sentence imposed on him for the 1998 Thanksgiving Day murder of his former girlfriend's husband. William L. Wright III, now 45, was convicted a decade ago of killing James Mowery in his Beale Avenue home....

In 2007, Wright became upset when the state Supreme Court, after years of deliberation, had failed to decide his appeal.  He filed a lawsuit with the U.S. District Court in Johnstown claiming inordinate delay in sentencing.  The state Supreme Court in December dismissed Wright's appeal saying that evidence of his guilt was "overwhelming." 

Wright decided he would file no more appeals at the state level and carried on his fight in the federal court, but now he has dismissed his state appeals attorney and federal public defender, R. Thomas Forr of Altoona, and has said he wants to die.  On April 19, Wright sent a letter to Rendell stating he was writing to expedite the signing of his death warrant "so I can commence the death-penalty execution."...

Rendell spokesman Chuck Ardo said this week that the Office of General Counsel will review the Wright case and recommend to the governor to sign or not sign the warrant.  Ardo said no inmate has been put to death during Rendell's six-plus years in office.  Two inmates who ceased appealing their convictions were put to death under Gov. Tom Ridge....

Wright concluded his letter to the governor stating, "For what it's worth, I sincerely regret that the responsibility now falls on you to execute an innocent man.  Thus, I would appreciate your prompt and speedy attention in this matter."

"Does Unconscious Racial Bias Affect Trial Judges?"

The title of this post is the title of this piece appearing on SSRN.  Here is the abstract:

Race matters in the criminal justice system.  Black defendants appear to fare worse than similarly situated white defendants.  Why?  Implicit bias is one possibility.  Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans.  Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases?  And if so, do these biases account for racially disparate outcomes in the criminal justice system?

We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results — which are both discouraging and encouraging — raise profound issues for courts and society.  We find that judges harbor the same kinds of implicit biases as others; that these biases can influence their judgment; but that given sufficient motivation, judges can compensate for the influence of these biases.

Tenth Circuit rejects novel argument about crack retroactivity rules

The Tenth Circuit today in US v. Dryden, No. 08-3310 (10th Cir. April 30, 2009) (available here), rejects a defendant's novel effort to get the benefit of the new retroactive crack guidelines. Here is how it starts:

After the United States Sentencing Commission decided to give retroactive effect to its recent amendment to the crack-cocaine guidelines, Edward Dryden moved under 18 U.S.C. § 3582(c)(2) for a reduction in his sentence.  The district court denied the motion, agreeing with the government that a reduction would be barred by the Commission’s policy statement in USSG § 1B1.10(a)(2) , because the amended guideline would not have reduced Mr. Dryden’s guideline sentencing range. Mr. Dryden appeals, raising the novel argument that the Commission’s policy statement results from an unconstitutional delegation to the Commission of legislative authority to restrict the jurisdiction of federal courts.  See Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935).  Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Letter to the USSC about modern sentencing data

I had the honor of signing my name to a terrific letter put together last week by a group of sentencing gurus that urged the US Sentencing Commission to go further in making its sentencing data more transparent and accessible. This letter can be downloaded below, and here is how it begins:

The undersigned scholars and researchers study the federal sentencing system from a variety of policy and philosophical perspectives.  As you well know, these are interesting times. Constitutional decisions by the Supreme Court revised the guideline system put in place by the Sentencing Reform Act of 1984 (the SRA).  Legislation, both enacted and proposed, has raised important questions concerning the fairness and effectiveness of federal sentencing.  The quality of our national policy debate can be improved by empirical research, just as our sentencing practices can be improved by empirical evaluation.

We call on you to fully use the powers granted by the SRA to facilitate research and evaluation. The upcoming Data and Research Conference on May 5-7 provides an opportunity for the Commission to expand its role as “clearinghouse and information center” on federal sentencing practices and to assist researchers working with the annual monitoring data file.  The conference agenda published on your website does not seem to address several concerns regarding the timing and method of release of Commission data, however, and the release of data beyond the annual monitoring, appeals, and organizations data files.  We ask that you consider these additional issues and recommendations.

Download Open_letter_to_USSC_April_20

Executions in Georgia and Texas this week

While another western state is getting closer to death penalty repeal this week (basics here), two active capital punishment state have their execution chambers active.  Specifically, as detailed in this AP article, Georgia executed a murderer last night, and Texas is scheduled to execute a murderer tonight.  As detailed in this Dallas Morning News article, tonight's scheduled execution in Texas moves the state's Governor closer to a capital punishment milestone:

Thursday evening, capital punishment opponents from Amnesty International USA and the Texas Coalition to Abolish the Death Penalty planned what they said would be a 200-minute vigil outside the criminal courthouse in Houston to mark what soon will be the 200th execution of Gov. Rick Perry's tenure.  Johnson would be the 198th Texas inmate put to death since Perry succeeded Gov. George W. Bush when Bush became president in the 2000 election.  During Bush's six years as governor, 157 executions were carried out in Texas.

Johnson was among at least six Texas inmates with execution dates extending into the summer.  Scheduled to die next, on May 19, was Michael Lynn Riley, 50, condemned for the slaying of Winona Harris.  The victim was stabbed more than 23 years ago during the robbery of a convenience store in Quitman, about 80 miles east of Dallas.

Comparative examiniation of proportional punishments

I just saw on SSRN this new piece, titled "Proportionality in the Criminal Law: The Differing American versus Canadian Approaches to Punishment."  Here is the abstract:

The focus of this Article shall be upon the Eighth Amendment of the United States Constitution and s. 12 of the Canadian Charter of Rights and Freedoms, both of which prohibit “cruel and unusual punishment”; and their effect on mandatory criminal sentencing (via penal statute) in the two countries.  Part I of this Article shall briefly explain the differences between the jurisdictional application of criminal justice in the United States and Canada.  Part II of this Article shall present and explain the American Eighth Amendment approach to the constitutionality of mandatory criminal sentencing.  Part III of this Article shall present and explain the Canadian s. 12 approach to the constitutionality of mandatory criminal sentencing.  Part IV of this Article shall compare and contrast the two national approaches and present the underlying argument of this Article, namely that if one’s concern is the fair and proportionate application of justice, then the Canadian approach to reconciling the constitutional prohibition against “cruel and unusual punishment” and the application (through penal statute) of mandatory criminal sentencing is the superior one.  Part V of this Article shall explore the possible reasons for the differing national approaches to mandatory criminal sentencing.

Colorado death penalty repeal bill continues moving forward

As detailed in this local article, a bill in Colorado to repeal the state's death penalty continues to march forward:

A proposal to eliminate the death penalty in Colorado has cleared another hurdle. The Senate State, Veterans and Military Affairs Committee backed the measure (House Bill 1274) Wednesday at the urging of families of murder victims.  The bill now heads to the Senate Appropriations Committee for another vote....

The bill would take the money now being used to prosecute death penalty cases, about $1 million a year, and use it to investigate cold cases instead.  Opponents, including most of the state's district attorneys, say families are being given false hope that their crimes will be solved.

DOJ's basic game-plan while urging crack sentencing reform from Congress

Here is a copy of the written testimony from Assistant Attorney General Lanny Breuer submitted to the Senate Judiciary Committee for this morning's hearing on federal crack sentencing (basics here).  The last two substantive paragraphs provide an outline of what DOJ is doing internally and also how it plans to proceed in upcoming cases:

Earlier this month the Attorney General asked the Deputy Attorney General to form and chair a working group to examine federal sentencing and corrections policy. The group’s comprehensive review will include possible recommendations to the President and Congress for new sentencing legislation affecting the structure of federal sentencing. In addition to studying issues related to prisoner reentry, Department policies on charging and sentencing, and other sentencing-related topics, the group will also focus on formulating a new federal cocaine sentencing policy; one that completely eliminates the sentencing disparity between crack and powder cocaine but also fully accounts for violence, chronic offenders, weapon possession and other aggravating factors associated – in individual cases – with both crack and powder cocaine trafficking. It will also develop recommendations for legislation, and we look forward to working closely with Congress and the Sentencing Commission on this important policy issue and finding a workable solution.

Until a comprehensive solution – one that embodies new quantity thresholds and perhaps new sentencing enhancements – can be developed and enacted as legislation by Congress and as amended guidelines by the Sentencing Commission, federal prosecutors will adhere to existing law.  We are gratified that the Sentencing Commission has already taken a small step to ameliorate the 100:1 ratio contained in existing statutes by amending the guidelines for crack cocaine offenses.  We will continue to ask federal courts to calculate the guidelines in crack cocaine cases, as required by Supreme Court decisions.  However, we recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio.  Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts’ attention.

This is a nice effort to dodge some of the questions I raised in this "now what" post, but this line still jumps out: "we recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio."  Given that DOJ recognizes that federal sentencing judges have authority to "create their own quantity ratio," and given that DOJ now seeks to "completely eliminate[] the sentencing disparity between crack and powder cocaine, why shouldn't prosecutors simply recommend in each on-going crack case that sentencing judges should not embrace (or should I say "create") a 1:1 ratio going forward?  Or, perhaps the better question is, shouldn't prosecutors now just express agreement with defense counsel in on-going crack case when they suggest that a 1:1 ratio be adopted by a sentencing court?

Some recent related posts:

• With the new DOJ advocating completely eliminating crack/powder disparity, now what?
• Watching the webcast of the Senate crack disparity hearing
• Is the new DOJ about to crack the stalemate over fixing the crack disparity?
• Eager to hear and post reports on courtroom ripples of new DOJ crack/powder policy

Third Circuit finds failure to address departure arguments procedurally unreasonable

Continuing its important recent work on reasonableness review, the Third Circuit today provides another notable opinion in US v. Lofink, No. 08-3204 (3d Cir. April 29, 2009) (available here). His is how the ruling starts:

The United States District Court for the District of Delaware sentenced Defendant Anthony Lofink for his convictions on charges of wire fraud, conspiracy to commit wire fraud, and conspiracy to commit money laundering. Lofink had moved for a departure from the Guidelines range contained in the Presentence Investigation Report (“PSR”), but the District Court denied the motion on the basis that it had taken Lofink’s arguments into account when fashioning his sentence.  Because our precedents require district courts to decide departure motions on their merits in order to satisfy the requirement of procedural reasonableness, we will vacate the sentence and remand for resentencing. In doing so, however, we intimate no opinion as to the merits of Lofink’s departure motion or the substantive reasonableness of the sentence the District Court imposed.

En banc Sixth Circuit rejects ineffectiveness claim for failing to preserve Sixth Amendment claims pre-Booker

Ruling en banc, the Sixth Circuit today in Nichols v. US, No. 05-6452 (6th Cir. April 29, 2009) (available here), reversed course after a panel had previously found defense counsel ineffective for failing to preserve Sixth Amendment claims.  Here is how the majority opinion in the new Nichols ruling concludes:

Nichols has not shown that his counsel was constitutionally ineffective for failing to anticipate or foresee a change in the law and raise an Apprendi-based challenge at sentencing or on direct appeal, for failing to move the appellate court for reconsideration on a Blakely-based claim in post-appellate proceedings, or for failing to petition the Supreme Court for certiorari based on Booker.  For the reasons discussed in this opinion, we AFFIRM the district court’s judgment.

Here is how the dissenting opinion concludes:

Because Apprendi and Blakely cast the constitutionality of the federal Sentencing Guidelines into serious doubt, and because the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi and Blakely, I conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to his sentence.

Eager to hear and post reports on courtroom ripples of new DOJ crack/powder policy

Especially because the Justice Department's important advocacy for completely eliminating the crack/powder sentencing disparity (basics here) prompts many real-world questions for on-going crack cases (noted here), I am eager to hear about and post details of any early courtroom consequences of DOJ's new policy perspective.  In particular, I hope litigants and/or court information officers will send me information about any notable documents or rulings that make reference to the new DOJ policy.

Some recent related posts:

• With the new DOJ advocating completely eliminating crack/powder disparity, now what?
• Watching the webcast of the Senate crack disparity hearing
• Is the new DOJ about to crack the stalemate over fixing the crack disparity?
• "Time to end the crack disparity"
• Will "National Call-In Day for Justice" achieve anything?
• New report from The Sentencing Project on the drug war's racial dynamics
• What might 2009 have in store for . . . drug sentencing law and policy?

With the new DOJ advocating completely eliminating crack/powder disparity, now what?

Because the wheels of federal sentencing reform move slowly in Congress, the Justice Department's important advocacy for completely eliminating the crack/powder sentencing disparity (basics here) probably will take a while to become new sentencing legislation.  But the realities of federal sentencing decision-making move very quickly in the courtroom.  Specifically, in fiscal year 2008 there were over 6000 crack sentences imposed in federal court, which means that over 100 crack defendants are sentences each and every week in federal court and that perhaps 20 or more crack defendants are scheduled to be sentenced just later today.

What should now happen in these upcoming crack sentencing cases later today and tomorrow and next week and next month?  What should happen in on-going sentencing appeals in which a defendant is complaining to a circuit court that his within-guideline sentence is unreasonable?  What should happen to those cases involving defendants getting the retroactive benefit of the new crack guidelines, but have seeking an even greater reduction than the US Sentencing Commission authorized?  And, whatever federal judges can and think they can/should now do, what will federal prosecutors nationwide be recommending that judges do?

Exciting times... and uncertain times.  I guess this is the inevitability consequence of change we can believe in.

UPDATE:  Both Senators Durbin and Feinstein have been asking hard questions about how to apply new rules to old cases, and nobody has really good answers (and Senator Feinstein used the term "parole" in her question, perhaps because even she does not completely realize there is no such concept in current federal criminal law).  Of course, one possible "easy" answer might be to take care of this problem through executive clemency mechanism, rather than forcing courts to deal with these matters.

Two SCOTUS losses for criminal defendants

As detailed in this SCOTUSblog post, the Supreme Court handed down two opinions this morning and they are both losses for defendants:

The Court has released the opinion in Kansas v. Ventris (07-1356) . The decision below, which held for the defendant, is reversed and remanded in a 7-2 opinion by Justice Scalia, available here.  Justice Stevens filed a dissenting opinion joined by Justice Ginsburg.

The Court has released the opinion in Dean v. United States (08-5274). The decision below, which held for the United States, is affirmed in a 7-2 opinion by Chief Justice Roberts, available here. Justice Stevens filed a dissenting opinion and Justice Breyer filed a dissenting opinion.

Dean involves a sentencing opinion dealing with a mandatory minimum sentencing provision that I will likely blog about later today.  Readers are welcome to get a running start in the comments.

Watching the webcast of the Senate crack disparity hearing

As detailed in this official notice, the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs will hold a hearing at 10am this morning entitled "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity."  Though I do not plan to live-blog the event, I do plan to try to watch the live webcast from this link.  And I hope readers feel free to use the comments to provide real-time commentary or any notable moments from the event.

Some recent related posts:

• Is the new DOJ about to crack the stalemate over fixing the crack disparity?
• "Time to end the crack disparity":
• Will "National Call-In Day for Justice" achieve anything?
• New report from The Sentencing Project on the drug war's racial dynamics
• Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?
• What might 2009 have in store for . . . drug sentencing law and policy?
• Why federal sentencing reformers must focus on the USSC and lower courts
• Are we on the verge of a new changed era concerning federal sentencing law and policy?

UPDATE:  As I am watching Assistant Attorney General Lanny Breuer testify via webcast, I received an e-mail from FAMM titled "Today is an historic day for sentencing reform!," and it starts this way:

This morning, the U.S. Department of Justice is announcing that it supports replacing the controversial 100:1 sentencing disparity between crack and powder cocaine with an even 1:1 ratio.  DOJ's announcement, included in testimony to be delivered on Capitol Hill by Assistant Attorney General Lanny Breuer, marks the first time the Justice Department has publicly endorsed equalization of the penalties between crack and powder cocaine.... FAMM member Cedric Parker is the final witness at the hearing.

The significance of today's announcement cannot be overstated.  For years, FAMM has argued that individualized and proportionate sentencing does not jeopardize public safety. Today, the U.S. Justice Department — the nation's top law enforcement agency, the overseer of every federal prosecutor in the United States — agreed with us. DOJ's new position on crack penalties acknowledges that we need not sacrifice safety for sentencing fairness.  The nation's top cops say we can have both!

And I just heard AAG Breuer state that DOJ now wants "this Congress to completely eliminate the crack/powder disparity."  He also has says that AG Holder has created a working group on federal sentencing that will work toward a better sentencing structure for how to deal with these matters.

MORE:  Here are early reports on this hearing from the Washington Post and the Wall Street Journal.

Unusual porn case leads to unusual rejection of a federal plea deal

It is notable any time that a federal judge rejects a plea deal worked out by the prosecution and the defense.  But, as documented by local coverage here and here, an unusual porn case from Indiana is notable for lots of other reasons, too:

A federal judge rejected a plea agreement for repeat bestiality offender Michael Bessigano in Hammond federal court Tuesday, saying Bessigano's case doesn't justify a sentence below federal guidelines.

Judge Philip Simon said the confidential report from probation agents recommended a sentencing range between 33 and 41 months in prison for the Hobart man's conviction of downloading bestiality pornography.

Discussion in court indicated that, under the plea agreement between defense lawyer John E. Martin and Assistant U.S. Attorney Bernie Van Wormer, Bessigano could be sentenced to as little as two years in prison. Simon called the agreement "not appropriate," and said that if Bessigano persisted in his guilty plea without the agreement, he would be exposed to a tougher sentence.  Simon gave Van Wormer and Martin two weeks to work out another plea agreement. Simon said he would schedule a joint plea hearing and sentencing....

Before he faced federal bestiality charges, Bessigano spent more than four years in prison on an animal cruelty conviction for having sex with a chicken, then killing the animal in a Valparaiso motel room.

Though I will tolerate off-color jokes about this remarkable case, I will expect the jokes to go beyond obvious "choking the chicken" references.

Some real-world insights from some real-world lawyers

This interesting new article from the Fulton County Daily Report, headlined "Best Lawyers' Panels Agree That Law Schools, Firms Need Retooling," say a lot about the modern realities facing lawyers and law schools. Here are some notable excerpts that end with a sentencing spin:

Seismic changes in the legal profession engaged the concern of seasoned attorneys at a conference held last week by the Best Lawyers of America.... At Friday's panels on the future of legal education and the legal profession, the tenor of questions showed a lively concern for where the profession is headed.

The practice of law has changed radically in 25 years.... Law schools must retool legal education, the deans agreed, but exactly how still is not clear. "You're producing a product that very few people want. Firms have hiring freezes. Why not stop producing the product -- or create new markets for what you're producing?" one lawyer challenged the deans. "You're like the auto manufacturers who produce a product for which there is no demand."...

Organizational behavior and product management skills plus strategic business thinking are important competencies for lawyers at firms handling today's giant matters, said the deans. But they said the current criteria for law school admission -- college grades and LSAT scores -- do not assess these competencies. [Dean Richard] Matasar challenged lawyers who think legal education is out of step with the demands of the market to "go back to your place that manufactured you and put pressure on them. You have the power of the pocketbook."

Another lawyer in the audience objected to the idea that legal education should merely supply product to private firms and companies. "We're not talking about cars. We're talking about minds. ... This is supposed to be a profession," he protested. Massive discovery demands have shifted legal work away from thinking and analysis to product management, said another attorney. "When we were in law school, discovery meant two or three banker boxes of documents. Now it means two or three hundred boxes. That demands widgets -- not thinking," he said.

Members of the panel on the future of the profession agreed that the vastly expanded scale of electronic discovery has transformed legal work. The panel's moderator, Philip K. Howard of Covington & Burling, pointed to another fundamental change: the increase in the number and complexity of laws.

"Layers of law have accumulated like concrete. Some is productive. So much of it is not. Congress never goes back and revises," said Howard, who addresses this issue in his latest book, "Life Without Lawyers: Liberating Americans From Too Much Law."...

[Robert] Clifford, a member of plaintiffs firm, the Clifford Law Offices in Chicago, cited gargantuan discovery requirements as one of the culprits for the disappearing jury trial....

[Charles] Stillman, the panel's white-collar criminal practitioner, said federal sentencing guidelines also have chilled jury trials. Defendants prefer to cut a sentencing deal rather than take their chances in court.  Stillman is a founder of Stillman, Friedman & Shechtman and a former federal prosecutor.

He warned of a new development -- the government's increasing use of private firms to handle internal investigations of companies.  Subcontracting investigations to firms is another shift in power from public law enforcement agencies to the private sector, said Stillman. "So lawyers are increasingly viewed as an arm of government.  This is a very serious challenge to our profession, which I find quite scary," he said.

Cross-posted at LSI

"Woman sent to jail for texting in court"

This local story from Utah, which carried the headline that is the title of this post, ought to get technology fans and First Amendment gurus all worked up:

A Utah woman is in jail for sending a text message. She's being held for contempt of court.

Susan Henwood, a mother of four, has been sentenced to 30 days in the Tooele County Jail because she sent a text message about a court hearing she was observing. "She shouldn't be there. She did nothing wrong," her husband, Joshua Henwood, said.

In early April, Joshua was sick and couldn't make his court appearance in a debt collection case. He sent Susan to ask for a continuance and to keep him updated, so she sent a text that said: "It doesn't look good for you" and "They're coming for the Polaris Ranger." The Polaris was one of several items the other side of the case wanted to sell to recoup supposed losses.  Henwood says his wife's text wasn't a warning to hide anything, just a heads up.

But Judge Stephen Henroid caught wind of the text and held Susan in contempt of court.  She started her 30 day sentence Monday. "You see drunk drivers and what do they get? A few days. She texts and she's in jail for 30? No, no," Susan's grandmother, Dolores Kyle, said.

Judge Henroid wasn't available for comment. A spokeswoman with the court system says the problem wasn't that Susan texted in court but the content of her text, but the spokeswoman was unable to provide further detail.

Back in Grantsville, Joshua says he still doesn't understand why his wife must spend a month in jail. He feels powerless to help. "I think this was an unfit punishment for the crime," he said.

The court spokeswoman says while everyone in a courtroom is asked to turn off their cell phones, sending a text message will usually just get you a reprimand from the bailiff. In this case, she reiterates, it was the content of the message.

A post-Stevens pitch to formalize prosecutorial disclosure duties

Over at Politico, Josh Gerstein has this fascinating report, headlined "Stevens Judge wants evidence rules changed."  Here is how it starts:

The judge who oversaw the trial of former senator Ted Stevens — and who ordered possible criminal contempt proceedings against six prosecutors on the case — now wants federal court rules changed to make clear that prosecutors have a duty to give defendants all evidence that could aid their defense.

The Stevens case judge, Emmet Sullivan sent a letter Tuesday to another judge who chairs a panel on court rules, urging that the rules for all federal criminal cases impose such a disclosure obligation on prosecutors.  "An amendment...that requires the government to produce all exculpatory information to the defense serves the best interests of the court, the prosecution, the defense, and, ultimately, the public," Sullivan wrote.  "Such a rule would also provide clear guidance to the prosecutor and indeed protect prosecutors from inadvertent failures to disclosure exculpatory information."

CLR note on co-defendant disparity after Booker

Now available on-line is this new Columbia Law Review note titled "Equal Justice Under Law: Post-Booker, Should Federal Judges Be Able to Depart from the Federal Sentencing Guidelines to Remedy Disparity Between Codefendants' Sentences?".  Here is the piece's abstract:

In the 2005 case of United States v. Booker, the Supreme Court held that the Federal Sentencing Guidelines were merely advisory and therefore no longer binding on trial judges.  Since then, some judges have based departures from the Guidelines on the finding that the disparity between codefendants’ sentences is unwarranted.  Although basing a departure on this consideration was universally impermissible before Booker, most circuits have now held that consideration of codefendant disparity is a permissible basis for departure.  However, some circuits have held that this disparity is still not a justification for departure or that departures may not be based on codefendant disparity in certain types of cases.  This Note argues that Booker and subsequent Supreme Court decisions permit trial judges to remedy disparity between codefendants’ sentences in all cases where the judge finds that the disparity is unwarranted.  It then shows how consideration of this disparity furthers Congress’s goal of increased sentencing uniformity and ensures greater fairness in the sentencing of defendants who only played a minor role in a crime.