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July 26, 2009

Noting the realities of federal sentencing after Booker in corruption cases

This new article in the Philadelphia Inquirer, which is headlined "Federal judges freed from sentencing rules," spotlights how the discretionary federal sentencing regime created by Booker has been playing out in corruption cases.  Here is how it starts: 

Both were powerful state senators. Both were found guilty of fraud. And both submitted reams of letters from supporters who hailed their good deeds as public servants.

Pennsylvania's Vincent J. Fumo, convicted of all 137 counts against him, will soon head off to prison for 4.5 years. New Jersey's Wayne Bryant, who was found guilty of 12 charges, was sentenced Friday to four years behind bars.

While prosecutors had sought longer sentences for both politicians, the cases highlight a kind of back-to-the-future event in the criminal-justice system: the return of discretion in federal sentencing since the U.S. Supreme Court ruled that once-mandatory guidelines are merely advisory.

"We're certainly back to much more subjective and idiosyncratic and discretionary sentencing," said Edward Ohlbaum, a law professor at Temple University who said the prosecutors' expected appeal of Fumo's sentence may well open the next chapter in the debate about how to punish corrupt politicians.

July 26, 2009 at 08:44 AM | Permalink


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Thank you for this extremely rare criticism of the criminal lover Supreme Court. When you allow a little balance, it enhances your credibility as an academic. It is academic malpractice to relentlessly permit only one point of view. That is not even education. That is advocacy and indoctrination.

Now, if you would only issue warnings Day 1 of classes. The doctrines you will teach in class are Medieval supernatural garbage, not facts in nature, and cause the utter failure of the law by their obsoleteness, unlawfulness, and falsity.

Posted by: Supremacy Claus | Jul 26, 2009 9:59:54 AM

Supremacy Claus, put the bong down and get some rest.

Posted by: JC | Jul 26, 2009 1:30:36 PM

The reality not mentioned is the heightened standard of appeal that allows jurists to impose their idiosyncratic view of sentencing with impunity. The "abuse of discretion " standard has gutted meaningful review of wayward jurists.

Posted by: mjs | Jul 26, 2009 1:41:29 PM

JC: You a lawyer? If not, we have no dispute, and you are really funny there, not to mention original.

If you are lawyer, you believe minds can be read. Future, rare accidents are foreseeable. You believe our standards of prudence may only be set by a fictional character. Why fictional? To be objective, of course. Why is the word reasonable applied to this fictional character? Why not median, average, typical, best endowed with common sense, logical, intelligent, kind, charitable, nice, mannerly, considerate? Why reasonable? Because it is code for Jesus Christ. Then you believe 12 strangers off the street can detect the truth, after excluding all with knowledge.

You went to law school an intelligent, modern person. After the cult indoctrination of 1L, you emerged with psychotic cult beliefs. This indoctrination was so good, you did not even know it took place. And you still have no idea to what I am referring. Your profession is cuckoo. And you have not smoked anything, you just caved into a little intimidation and lying by cult indoctrinators.

Posted by: Supremacy Claus | Jul 26, 2009 1:52:15 PM

Public servants found guilty of committing any kind of crime should be subject to the same laws and penalties as the rest of the citizens, plus they should be forever barred from holding or being directly associated with any public position in the future, whether appointive or elective.

Former Professor, Currently Retired

Posted by: Victor Morris | Jul 26, 2009 4:54:14 PM

I find it especially troubling that public officials do not face the same trial penalty that normal offenders do. I wonder if it is a similar phenomena to the NPR editor who received a supervised release sentence after pleading to child porn charges, the judge simply relates far more to the corrupt official than other kinds of criminals and so reduces the sentence.

Either that or it's a self protection measure in case the sentencing judge ever gets caught. By going light on corrupt officials, other corrupt officials will go light on them. Either way it's not very reassuring. It reeks too much of one law for the masters and another for the peasants.

Posted by: Soronel Haetir | Jul 26, 2009 5:15:05 PM

"It reeks too much of one law for the masters and another for the peasants."

And when in the entire history of mankind has that not been the case? The most interesting thing about that duality is not the rich/powerful/beautiful take advantage of it. The most interesting thing is, as evidenced by the letters, how many poor/weak/ugly people are comfortable and indeed happy with just such duality. The truth of the matter is that equality before the law is always good for one's neighbor and never good for oneself. My own observation is that the average man on the street is simply more honest about reality than the average academic lawyer who is caught up in silly notions like justice.

Posted by: Daniel | Jul 27, 2009 12:36:15 PM

The cases illustrate an upside of the sentencing guidelines that often doesn't come out in controversial cases which also involve mandatory minimums. If the offenses don't have a mandatory minimum, the guidelines try to harmonize sentence lengths based upon the underlying conduct, regardless of how many charges are brought. Under the guidelines, a $1 million loss is a $1 million loss, even if charged one dollar bill at a time.

There are problems with the underlying conduct principle, most notably, the consideration of acquitted or non-conviction conduct by a judge in a setting a sentence. But, this principle also serves as a check on prosecutor power.

Posted by: ohwilleke | Jul 27, 2009 7:16:14 PM

I agree with Soronel that there seems to be a disconnect between white-collar/corruption sentencing---i.e., sentencing of people who engaged in egregious abuse of public trust but who are also usually of a class and background to which federal judges can relate---and sentencing in other federal cases (immigration, drug possession) where the defendants tend to be blue collar/uneducated/marginalized---not something your average federal judge relates to. Unlike in some state courts, I don't think this difference can be attributed to any large extent to the strengths of fancy counsel, because the federal defenders are usually quite good, and federal judges often make a point of engaging in a pretty thorough independent review.

As implied by Soronel, I feel the problem is not so much that a degree of leniency or (dare I say the word) empathy that may exist with respect to the former class of offenders (although it is possible that this goes to far in some cases), but that judges appear to lack an ability to relate to or take proper account of the impact of massive, decades-long sentences on the latter class of offenders.

One is tempted to conclude that the judges simply have difficulty equating the value of a year in the life of a suburban-dad, country-club, funder-of-public-charities, corrupt-to-the-guts public official with a year in the life of a down-and-out, undereducated, selling-crack-on-the-corner inner-city dweller, and that they instead engage in some kind of unacknowledged, unconscious transitive math in which, for example, 1 year of suburban, upper-middle class life equals 5 years of poor, inner-city life.

Posted by: Observer | Jul 28, 2009 1:29:52 PM

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