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July 18, 2010

Effective press coverage of recent DOJ letter to the US Sentencing Commission

Marcia Coyle has this lengthy and effective piece due to appear in tomorrow's National Law Journal under the headline "Justice Department Calls for Probe of Federal Sentencing Patterns; Prosecutors see disparity in fraud, child pornography punishments." Here is how it begins:

During the past four years, federal judges imposed sentences of one to four years on five defendants in the AIG fraud case that caused more than $500 million in losses; 25 years on Ronald Treadwell for a Ponzi scheme involving a $40 million loss; and 3 1/2 years on former Impath Inc.  President Richard Adelson for a $50 million securities fraud.

Those widely disparate sentences don't make sense, ignore federal sentencing guidelines and are a sign of a potentially very big problem, according to the U.S. Department of Justice. The DOJ wants the U.S. Sentencing Commission to investigate, with special attention to guidelines for fraud and child pornography crimes.  But some sentencing experts say it may be something that the commission does not want to examine too closely.

The department called for a "comprehensive review" of the state of federal sentencing in its most recent annual report to the commission on June 28.  In the five years since a U.S. Supreme Court decision struck down the mandatory nature of federal sentencing guidelines, the department said, prosecutors' experiences and data "suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes."

If allowed to go unchecked, the two regimes will lead to unwarranted sentencing disparities, disrespect for federal courts and sentencing uncertainty that could lead to more crime, the department said.  "More and more, we are receiving reports from our prosecutors that, in many federal courts, a defendant's sentence will largely be determined by the judicial assignment of the case; i.e., which judge in the courthouse will conduct the sentencing," said Jonathan Wroblewski, director of the Criminal Division's office of policy and legislation, in the report.

Some sentencing scholars agree that judges are "straying off the guideline reservation" more frequently since the 2005 ruling in Booker v. U.S., but they disagree on how big a problem this could be.  "I do think they're on to something," said former federal judge Paul Cassell of the University of Utah S.J. Quinney College of Law.  "It's one of the dirty little secrets of federal sentencing now.  There are situations where which judge you pull can drive the sentence."

But, he added, the subject for debate is how widespread the problem may be.  "Is it isolated to a few here and there ignoring sentencing guidelines or is this a more general phenomenon?  That's where analysis by the [Sentencing] Commission is needed."

The fact that some sentences may be below the guidelines does not demonstrate a disrespect for the guidelines, said Ellen Podgor of Stetson University College of Law. "Rather, it recognizes that these are advisory guidelines for consultation and use in determining a sentence," she said.  "It is important to remember that judges are sentencing people and it is not a mere mathematical computation that should control."

Recent related posts on the DOJ letter to the USSC:

July 18, 2010 at 08:46 PM | Permalink

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Comments

The Congress should try to impeach the Justices of the Supreme Court that voted to bring down sentencing guidelines. These are pro-criminal, rent seeking lawyers, who are a threat to public safety. The amateurs on the bench cannot be trusted. The guidelines still represent the standard of prudent judge practice. If any criminal commits a crime during the shortening of his sentence, the judge should have to make the victims whole with his own assets or personal insurance. The negligence is per se given the explicit statutory nature of the guidelines.

Posted by: Supremacy Claus | Jul 18, 2010 10:33:38 PM

It sounds like someone forgot that Booker made the guidelines advisory? Straying from the guidelines is not the problem. The problem is the insinuation that Booker is not a real opinion and does not deserve respect. Since when did the executive branch begin to believe it could control normal judicial functions, like sentencing? Perhaps we should amend the constitution to eliminate judges in criminal matters in order to allow a prosecutor to determine all sentences? . . . and forget the jury . . . the prosecutor can perform that function, also?

Posted by: Tim Holloway | Jul 19, 2010 9:18:15 AM

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