« "21-month sentence for man who beat fellow golfer with 6-iron" | Main | What questions should Judge Sotomayor be asked in her confirmation hearing? »

July 10, 2009

Is real fundamental, structural change on the horizon for the federal sentencing system?

As detailed in this report about the US Sentencing Commission regional hearing in New York this week, a number of federal judges are urging the USSC to work on big, structural sentencing reform.  In the words of Judge Dearie: "It is not a time to tinker ... it is time for fundamental reform....  If necessary, start all over.  The truth is, you may be our only hope.  Raise your voice or voices.  We must rely on each of you to think outside the box."

Of course, federal judges (as well as academics) have been urging fundamental, structural changes to the federal sentencing system for quite some time.  But, now a passage this recent speech by Attorney General Eric Holder suggests that the Justice Department may soon be urging some big changes:

Although this Administration is still young, we have already started to put into practice what I believe is a data-driven, non-ideological, post-partisan approach to crime.  For example, I have asked attorneys throughout the Department to conduct a comprehensive, evidence-based review of federal sentencing and corrections policy.  Specifically, the group is examining the federal sentencing guidelines, the Department’s charging and sentencing advocacy practices, mandatory minimums, crack/powder cocaine sentencing disparities, and other racial and ethnic disparities in sentencing.  The group is also studying alternatives to incarceration and strategies that help reduce recidivism when former offenders reenter society.  We intend to use the group’s findings as a springboard for recommending new legislation that will reform the structure of federal sentencing.

I have added the emphasis and bold to the end of this passage because I think AG Holder's reference to reforming the structure of federal sentencing is quite significant and could portend big changes on the horizon.  (Or, maybe I am just a bit giddy on hope-and-change talk on a sunny Friday afternoon.)

July 10, 2009 at 02:22 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2011570fa5347970c

Listed below are links to weblogs that reference Is real fundamental, structural change on the horizon for the federal sentencing system?:

Comments

I very much respect AG Holer's attempt to restore respect for the law. Soundbites are cheap. I hope one priority is making potential sentences clear from the outset, by statute, so it doesn't take the convicted the first year of a sentence to figure out how the years were stacked under the guidelines. Seriously, some of the sentenced probably never fully understand how their sentence was calculated.

Posted by: George | Jul 10, 2009 3:18:56 PM

Except for crack/powder I expect little to happen. Government inertia is an extremely difficult force to overcome. There might not be anyone that is happy with the current system but getting any sort of wide agreement on a replacement is going to be hard.

Posted by: Soronel Haetir | Jul 10, 2009 3:51:39 PM

Asking prosecutors to perform a thoughtful, fact-driven review of sentencing policy is like asking a heroin addict to make a rational, logical review of his health care needs. We shouldn't be surprised if his conclusion is, "I need more heroin."

Posted by: Anonymous | Jul 10, 2009 5:18:20 PM

George --

Those inclined to disrespect the law are unlikely to have either their minds or their behavior changed by speeches from the Attorney General.

In a society governed by the social contract, respect for law is required whether one agrees with the current administration or not, and -- for that matter -- whether on agress with the particular law in question or not.

Posted by: Bill Otis | Jul 10, 2009 8:32:48 PM

Prof. Berman: Yes. Fundamental change is on the way. It will make you very happy.

Thousands of people will die that would not have before these changes.

Posted by: Supremacy Claus | Jul 10, 2009 8:43:45 PM

I am skeptical of any AG whose first official pronouncement was to proclaim his country a "nation of cowards".

Posted by: mjs | Jul 10, 2009 9:07:29 PM

Mr. Otis, you took the Fifth on the stacking charges question and lost the right to preach.

Posted by: George | Jul 10, 2009 10:26:53 PM

George --

1. Never in my life have I taken the Fifth.

2. If I had taken it, a defense lawyer would be the last one in a position to criticize my doing so.

3. I was the most responsive commenter on the thread you reference, not the least.

4. Not answering a question -- particularly an off-topic question late in the thread -- is scarcely refusing to answer it. About half the questions posed in comments go unanswered, often because the thread is exhausting or has exhausted itself.

5. You have not applied the "no right to preach" theory to the many, many others who leave questions unanswered. You're not making me a victim of selective prosecution, are you?

6. You are in no event the arbiter of who gets to comment here, Senator McCarthy.

7. That you want to elide my comment rather than answer it is revealing, and what it reveals is that you don't have an answer. If you had one you thought would sell, we'd be hearing a rebuttal instead of a dodge.

8. Of course you can prove me wrong by providing that rebuttal. So that people will remember the comment you're avoiding, I'll repeat it: "Those inclined to disrespect the law are unlikely to have either their minds or their behavior changed by speeches from the Attorney General. In a society governed by the social contract, respect for law is required whether one agrees with the current administration or not, and -- for that matter -- whether one agress with the particular law in question or not."

Posted by: Bill Otis | Jul 11, 2009 8:44:17 AM

Oh, George, one more thing. Did you lose "the right to preach" when you "took the Fifth" on the following questions I asked you in a thread a good deal more recent than the one you mentioned?

"When the defendant offers to plead guilty, and then (with that offer off the table) the jury finds him guilty, and the appellate court expresses no doubt about his guilt, I think the conclusion that he was in fact guilty has more going for it than [your] mere guess, offered without any citation to the facts or the record, that he was innocent. What facts give rise to your 'wonder' about his guilt?"

"As to whether the defendant was a victim of 'extortion,' by either the government or his lawyer: What would you have them do?"

Posted by: Bill Otis | Jul 11, 2009 8:55:36 AM

Good argument, Mr. Otis. Everyone of course has to the right to preach about anything they want to. We are talking about respect for the law. Is stacking charges for "insurance" in the event of a jury compromise "respecting the law"? If those who enforce the law do not respect the law, the trickle down theory prevails. Why should anyone else? So by "right to preach" I meant the "authority to preach about respecting the law." When the legislature gave you the power to stack charges, was the intention to manipulate the jury and help prevent hung juries? Even if it was the legislative intent, the Founders thought the greatest threat to liberty could be from the legislative branch. Jury nullification was the only remedy.

Stacking charges may be legal but much of what is legal does not encourage respect for the law. That, I think, is AG Holder's point. The speech by itself will accomplish nothing but if he can effectively put it into action, it could accomplish a great deal. I don't think conservatives understand or care about the damage their soundbite policies did and are still doing.

For example, does this encourage respect for the law? Murphy's Law: Bad legislation comes back to haunt author.

I think it's mere manipulation, like you manipulated the jury by stacking charges so those jurors in favor of acquittal would be more willing to compromise.

Lastly,

"When the defendant offers to plead guilty, and then (with that offer off the table) the jury finds him guilty, and the appellate court expresses no doubt about his guilt, I think the conclusion that he was in fact guilty has more going for it than [your] mere guess, offered without any citation to the facts or the record, that he was innocent. What facts give rise to your 'wonder' about his guilt?"

I'm not sure what you are talking about here and missed this question. If you are talking about plea bargain rights, I didn't guess he was innocent but wanted to know if he was or not. He could be despite the guilty verdict. It is natural for people to chose the known (plea deal) as opposed to the unknown (risks of trial despite innocence). The government has enormous advantage across the board. For example, by stacking charges because juries are inclined to compromise if the defendant dares to exercise his right to trial.

Exercising Constitutional rights is a form of contempt worthy of much more punishment. How did that happen? Does that view respect the Constitution? I think this respect for the Constitution, as opposed to the end justifies the means, may be what is behind some of Justice Scalia's opinions.

Posted by: George | Jul 11, 2009 2:05:39 PM

Anonymous wrote: "Asking prosecutors to perform a thoughtful, fact-driven review of sentencing policy is like asking a heroin addict to make a rational, logical review of his health care needs. We shouldn't be surprised if his conclusion is, 'I need more heroin.'"

Exactly.

The guidelines are the Justice Department's 300-ton bargaining chip. It is impossible to imagine JD lawyers doing anything to significanyly diminish the guidelines' unholy power to make even innocent defendants eager to plead guilty.

Posted by: John K | Jul 11, 2009 6:08:44 PM

George --

"Everyone of course has to the right to preach about anything they want to."

Yesterday you said the opposite -- specifically that my right to speak had vanished.

"We are talking about respect for the law. Is stacking charges for 'insurance' in the event of a jury compromise 'respecting the law'?"

Well, "stacking" is a loaded word. The defense is of course free to winnow down the charges by filing a motion to dismiss any charge it believes is duplicitous or multiplicitous. If it prevails in such a motion, fine. If it doesn't, it's just so much bellyaching to then complain about charges the grand jury had every right to bring and the trial court approved. If the defendant dislikes multiple charges, he had the opportunity to change his behavior so as to not leave himself open to them. Having failed to do so, it is not up to the prosecutor to bail him out.

"If those who enforce the law do not respect the law, the trickle down theory prevails."

First, it is not disrespecting the law to file charges that correspond to the defendant's behavior. Second, the assertion that the trickle down theory prevails is just that -- an assertion.

"Why should anyone else?"

Because the obligation to obey the law is free-standing and does not depend on what others are doing. Do you teach your kids that because some governors, congressmen and judges (most recently Judge Kent) disobey the law, it's OK for them to as well? Somehow I doubt it.

"So by 'right to preach' I meant the 'authority to preach about respecting the law.'"

"Preach" is also a loaded term. I take it that what you mean, without the pejorative stuff, is "make an argument." Why not just say so?

"When the legislature gave you the power to stack charges, was the intention to manipulate the jury and help prevent hung juries?"

The complaint about "stacking" charges must be a hundred years old, if not older. If the legislature had the intent you implicitly ascribe to it, it has had a very, very long time to act to "correct" what you see as an abuse. Perhaps it sees it differently.

Allowing the jury to choose among validly brought charges -- providing, of course, that it understands no conviction can obtain absent unanimous agreement that the government has proved the charge beyond a reasonable doubt -- is a very odd thing to call "manipulation."

"Even if it was the legislative intent, the Founders thought the greatest threat to liberty could be from the legislative branch. Jury nullification was the only remedy."

Actually, the Founders thought the greatest threat to liberty was NOT having representation in the legislative branch (i.e., Parlaiment), which they correctly viewed as the most promising counterweight to King George.

But even if you were correct in your premise, your conclusion would not follow. Jury nullification does not end the supposed dangers of the legislature, it simply atomizes (and thus multiplies) them. Each jury becomes a mini-legislature, which, without any democratically crafted portfolio to speak of, then enacts its own "law," which can and will vary unpredictably from one case to the next.

Defense lawyers always assume that jury nullification will work to their advantage. This would hardly be a principled reason to support it, but it's wrong in any event, as even a moment's reflection will show. The jury could just as easily nullify the law that requires proof beyond a reasonable doubt, and decide that the defendant is a really bad actor who needs to go to the slammer even if the proof came up a bit short.

Are you ready for THAT sort of jury nullification?

As they say, beware of what you wish for.

Posted by: Bill Otis | Jul 11, 2009 8:22:49 PM

"Yesterday you said the opposite -- specifically that my right to speak had vanished."

No, you interpreted that way.

"Well, "stacking" is a loaded word. The defense is of course free to winnow down the charges by filing a motion to dismiss any charge it believes is duplicitous or multiplicitous. If it prevails in such a motion, fine. If it doesn't, it's just so much bellyaching to then complain about charges the grand jury had every right to bring and the trial court approved. If the defendant dislikes multiple charges, he had the opportunity to change his behavior so as to not leave himself open to them. Having failed to do so, it is not up to the prosecutor to bail him out."

You are, probably intentionally, missing the point. The subject is respect for the law. See United States v. Harris, 997 F.2d 812, 819 (10th Cir. 1993), for the proposition that it would be outrageous conduct for the government to "rely on a known addiction to carry out multiple transactions with the primary purpose of stacking charges. . . ."

Another definition (and an interesting story on gun rights): Stacking charges or creating overlapping federal and state jurisdiction allows for multiple prosecutions for the same crime.

Another definition: "It's commonly referred to as "stacking charges" and it's reasons are twofold. First, it gives the state charges they can "bargain away" during the plea bargain process. Secondly, it gives the state more weight to throw at you if they do end up throwing the book at you."

In these contexts, legal or not, how does stacking charges promote respect for the law? Saying "because it's the law" is not good enough, or it wasn't good enough for our Founders in the context of King George.

"The jury could just as easily nullify the law that requires proof beyond a reasonable doubt, and decide that the defendant is a really bad actor who needs to go to the slammer even if the proof came up a bit short."

Please, even if you think I'm that stupid, do you really think every one is? That's been decided. See The People v Bullshit.

Posted by: George | Jul 12, 2009 12:21:55 AM

George --

1. It has nothing to do with "interpretation." You contradicted yourself, pure and simple. On Friday, you told me, "...you took the Fifth on the stacking charges question and lost the right to preach." When I challenged your prerogative to impose censorship, you said on Saturday, "Everyone of course has to the right to preach about anything they want to."

Self-contradiction, period.

2. Why do you think respect for the law will increase if defense counsel do everything within the law for their clients but prosecutors decline to meet the same high standard? Do you think the public is entitled to less from its lawyer than the individual is from his?

Your real complaint is that your client's repeat or multi-faceted criminal behavior renders him liable to multiple charges, which are then brought. It is quite true that this gives the prosecution an advantage in plea bargaining. But the advantage is no different in principle from the one the prosecution ALWAYS enjoys in plea bargaining, i.e., the defendant is in a tight spot because his provable behavior put him there. This is not the government's fault.

3. "In these contexts, legal or not, how does stacking charges promote respect for the law? Saying 'because it's the law' is not good enough, or it wasn't good enough for our Founders in the context of King George."

If so-called "stacking" of criminal charges had anything to do with the Revolution, it's news to me. Where did you get that? And to say that X is legal (in defense of doing X) cannot be as easily dismissed as you would have it. As a general matter, in a democracy, things become legal as a result of a lot of contentious hashing about in public debate, sometimes joined by the courts, and resulting, after a good deal of give-and-take, in the adoption of practices with broad public support. This is one reason your complaint about "stacking" charges is virtually unheard of outside defense lawyer circles (occasionally joined by a few press allies).

4. You don't answer, but instead settle for merely criticising, my question whether jury nullification could result in outcomes you wouldn't like.

Your criticism is all very colorful, if slightly profane, but no answer is still no answer. And that's what you've given.

Nonetheless, being Mr. Nicey, I'll give you another example that I suspect will be more difficult for you to brush off.

We had jury nullification in this country. Did you know that? It occurred for at least 50 years in the Jim Crow era, where juries in the deep South simply would not convict a white defendant of a crime, up to and including murder, against a black victim. The juries believed, just as passionately as the we-love-marijuana crowd does today, that laws punishing white people for what they did to blacks were wrongheaded and dangerous to the social order. So ice-cold charges brought against white defendants (if you could find a prosecutor with the guts to bring them) were routinely nullified by ideologically driven, white man's acquittals.

This was REAL jury nullification at work. And if jury nullification came back into vogue, what is there to prevent the same sorts of abuses now?

You make short work of the legislature as out of touch with popular sentiment, but whistle right past the fact that all you offer as an alternative are hundreds of mini-legislatures called "juries." Unlike the actual legislature, these here-today-and-gone-tomorrow mini-legislatures will have no electroral mandate and no accountability. In addition, they can and will reach wildly varying results because they deal in idiosyncrasy rather than law.

If any of this bothers you -- indeed even if you understand it at all -- it's invisible in your post.


Posted by: Bill Otis | Jul 12, 2009 9:49:09 AM

It's getting dizzy here in the NO SPIN ZONE.

You wrote:

"The problem is that there isn't going to be any agreed definition of either "count-stacking" or "just." What is count-stacking in the eyes of defense counsel can be, in the eyes of the prosecutor, insurance against a compromise verdict or a partial appellate reversal."

Any reader can decide for him- herself if stacking charges as defined by the above definitions, including yours, promotes respect for the law or not.

Posted by: George | Jul 12, 2009 4:45:54 PM

George --

"Any reader can decide for him- herself if stacking charges as defined by the above definitions, including yours, promotes respect for the law or not."

Correct -- so why do you keep asking me?

If a point be made of it, though, what actually promotes respect for law is enforcing it without apology so that bad and dangerous people are punished and normal people are safer.

If you asked 100 people out on the street, "Does count stacking make you more likely to disrespect the law?", my quite confident guess is that you'd get 100 responses to the effect, "What are you talking about?"

Having worked in the USAO for close to 20 years, and in the criminal justice system for longer than that, I can tell you that I never heard of a defendant who said, "Yup, I knocked over the 7-11, not for the money in the cash register, but because I disrespected the law on account of count stacking."

As for it's getting dizzy in here, I think you're onto something, but you were saying the other day that I had not sufficently answered your questions. I wouldn't want to be so reticent as to exacerbate your frustration with me.

I enjoy talking with you, because like some of the liberals here (Marc and Daniel come to mind, but there are others), you're pretty smart as far as I can tell, and not very much into pie throwing, although you throw a cookie every now and again.

Posted by: Bill Otis | Jul 12, 2009 5:30:22 PM

Judge William G Young, a Federal judge in Boston wrote a 177 page decision in 2004 which addressed prosecutors power to stack charges and facilitate guilty pleas. It is interesting.

It stated, "The focus of our entire criminal justice system has shifted way from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused citizen." He criticizes "charge bargaining" and "fact bargaining".

It bothered Judge Young that 97% of federal convictions are plea bargains. Those defendants going to trial have sentences that are 6 times as long as those who plea.

Bill, you might note that Judge Young has very strong words for jury nullification - to put it mildly - he's against it. Judge Young was appointed by Ronald Regan.

Posted by: beth | Jul 12, 2009 6:08:20 PM

beth --

I never heard of a sitting judge who approved of jury nullification. Part of this, although only a part, is that what gets nullified is the judge's statement of instructions.

I agree that too many cases are resolved through plea bargains. Although approved in Santobello v. New York, plea bargains are not mentioned in the Constitution as the way to resolve criminal charges. They are a consequence of economics. Like most practices driven by economics, plea bargains produce compromises, and compromises are not easy to swallow. They can be the opiate of lazy prosecutors, who know there's a lot less work in a plea bargain, no matter how poorly it serves the public, than in a trial.

Posted by: Bill Otis | Jul 12, 2009 8:32:12 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB