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October 21, 2010

Judge Bright laments post-Booker crack sentencing realities in Iowa

Concurring in part and dissenting in part in an Eighth Circuit opinion in US v. Brewer, No. 09-3909 (8th Cir. Oct. 21, 2010) (available here), that is not otherwise that notable, Judge Myron Bright has a lot to say about disparties in crack sentencing approaches in the Northern District of Iowa. Here is part of his opinion:

Who could have guessed that President Eisenhower’s decision nearly sixty years ago to create a national system of interstate highways would have an effect on sentencing in Iowa today?  Well, it has.  In the Northern District of Iowa, cases arising on one side of the interstate go to one district court judge while cases arising on the other go to a second judge. And one active judge uses a 1:1 ratio between crack and powder cocaine when sentencing violators of crack cocaine laws while the other follows the sentencing guidelines -– which here applied a 33:1 ratio.  So in the Northern District of Iowa, the location of the crime relative to the interstate is a significant factor in crack cocaine sentencing. In my view, the difference in sentences between similar offenders should not depend on which side of the interstate a crime was committed or where the offender was arrested. See United States v. Ayala, 610 F.3d 1035, 1037-38 (8th Cir. 2010) (Bright, J., concurring) (discussing the need to reduce sentencing disparity in the post-Booker era).

For Brewer’s crime of possessing, conspiring, and delivering approximately 150 grams of crack cocaine, the guidelines recommended a sentence of 30 years to life.  That’s the same recommendation as if Brewer had committed second-degree murder. Unfortunately, equating crack cocaine with murder is not uncommon. See Robert Perkinson, Texas Tough: The Rise of America’s Prison Empire 336 (Metropolitan Books 2010) (Texas Tough) (“In 1995, the average federal prison term for a crack offense surpassed that of murder.”).  Brewer requested a variance from the harsh crack cocaine guidelines on the basis of the disparity with powder cocaine and he cited a decision by Judge Bennett of the Northern District of Iowa who utilizes a 1:1 crack/powder ratio.

The court imposed a 370-month sentence.  That’s 30 years and 10 months. The district court denied Brewer’s request for a variance, stating “I did consider and reject the request for a variance based on the disparity in punishment between crack cocaine and cocaine.  As I looked at the statutory factors under 18 U.S.C. 3553(a), I determined that, on balance, this sentence was not out of the range of reasonableness and is fully supported by the evidence.”

The majority affirms, concluding that the district court was not required to vary downward on the basis of the crack/powder disparity.  But I believe the district court’s decision does not reflect a reasoned and informed exercise of discretion.  The district court cavalierly applied a guideline which often does not comply with § 3553(a) in the mine-run case, treats Brewer like a murderer, and results in unwarranted intra-district disparity.  Sadly, the interstate and corresponding judicial assignment made a substantial difference at Brewer’s sentencing.

October 21, 2010 at 02:26 PM | Permalink

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Comments

I don't know what Bright's complaining about. For years, the defense bar campaigned for the notion that each judge should be able to use his own assessment of the dangerousness of crack, and could adopt a policy different from Congress's (or from other district judges). The Supreme Court gave you exactly what you asked for.

What, you thought every district judge was Nancy Gertner? You might have taken the time to look more closely.

There's an old rule in appellate law that you can't complain about the fruits of your own victory. Bright hasn't a leg to stand on.

Posted by: Bill Otis | Oct 21, 2010 5:06:14 PM

I agree, Bill.

Posted by: Bill B. | Oct 21, 2010 5:41:11 PM

"Sadly, the interstate and corresponding judicial assignment made a substantial difference at Brewer's sentencing."

This observation, of course, was the seminal reason for structured sentencing guidelines.

Posted by: mjs | Oct 21, 2010 5:42:59 PM

Yes, "structured" sentencing guidelines where the facts underlying the calculations are found by a jury beyond a reasonable doubt with all the evidentiary protections of a trial. Then Judge Bright's concerns, the Bills's concerns, and the concerns of the defense bar are all met. If only 5 Justices had seen that this is the only solution.

Posted by: DGR | Oct 21, 2010 6:55:37 PM

First, since when is Bright a member of "the defense bar"?

Second, in Booker, "the defense bar" wanted mandatory guidelines with jury found (or admitted) facts.

Third, one judge continuing to impose an irrational, arbitrary ratio (in this case it was 33:1) while another judge has the sense to impose a more rational ratio (1:1 or 2:1 or at most 5:1) should be of little concern when you realize that, in Bill's good ol' days, every judge was required to blindly apply the irrational policy. That some defendants are able to obtain a more just sentence while others must still suffer under the Commission's regime can only be viewed as, on balance, a positive change.

Fourth, when the Commission and Congress both have criticized the ratio upon which Mr. Brewer was sentenced, the only sensible reaction is to correctly criticize the judges who fail to correct the obvious irrationality. In Bright's words, even under an advisory GL system, imposing a 33:1 ration is neither "reasoned" or "informed."

Posted by: DEJ | Oct 21, 2010 8:20:16 PM

"First, since when is Bright a member of 'the defense bar'?"

Since he learned to write.

"Second, in Booker, 'the defense bar' wanted mandatory guidelines with jury found (or admitted) facts."

I'll take your word for it that that's what the defense bar was saying in Booker (I've forgotten), but for long before then, including hundreds of times on this site, members of the defense bar decried mandatory guidelines. They demanded an end to "putting judges is straitjackets" and a return to the regime of "letting judges be judges." You missed this???

"Third, one judge continuing to impose an irrational, arbitrary ratio (in this case it was 33:1) while another judge has the sense to impose a more rational ratio (1:1 or 2:1 or at most 5:1) should be of little concern when you realize that, in Bill's good ol' days, every judge was required to blindly apply the irrational policy."

That's just flat-out false. While the ratio was fixed, judges could depart from the guidelines and did so plenty -- roughly 40% of the time, more in drug cases. All they needed to find was that there existed some factor -- any factor -- in the case of a kind or to a degree the Sentencing Commission had not taken into account. Downward departures in crack and cocaine cases were utterly routine.

"That some defendants are able to obtain a more just sentence while others must still suffer under the Commission's regime can only be viewed as, on balance, a positive change."

Consider a sentence a more conclusory than which cannot be conceived....

"Fourth, when the Commission and Congress both have criticized the ratio upon which Mr. Brewer was sentenced, the only sensible reaction is to correctly criticize the judges who fail to correct the obvious irrationality. In Bright's words, even under an advisory GL system, imposing a 33:1 ration is neither 'reasoned' or 'informed.'"

I had previously been under the impression that circuit judges were bound by Supreme Court precedent, rather than voting to decide a case contrary to that precedent.

Think I'm wrong about that? Wanna bet how many votes this one gets for cert? I'll bet a hundred bucks right now that it gets Z-E-R-O. Are we on?

Posted by: Bill Otis | Oct 21, 2010 9:35:41 PM

Bill,

I wouldn't take that, but only because I fear that we have at least one irrational justice and there is also an outside chance that one of the clerks reads this blog and would wheedle a meaningless vote to grant just to chaff us.

Posted by: Soronel Haetir | Oct 22, 2010 2:24:47 AM

Soronel --

The clerk can put weird stuff in the cert memo, but he doesn't get to vote. Votes in favor of cert are few and far between, and a justice casting one always considers how much of his political capital, so to speak, he's using up. Still, it'd be worth it if a clerk tried to engineer a cert vote to chaff us. I'd be flattered!

Posted by: Bill Otis | Oct 22, 2010 9:23:15 AM

Nothing you said, Bill, dissuades me of my point that the current system, where a judge can correct for irrationality, is much preferred than the old regime, where all judges would have to sentence under irrationality, or else figure out some way to "depart" under the narrow mandates of the guidelines (you're cite to 40% includes "substantial assistance" departures, which is, at best, dishonest considering the point).

Posted by: DEJ | Oct 23, 2010 6:57:10 PM

First, "you're" should be "your". My mistake :)

Second, so, under your rational, we can consider J. Alito a member of the prosecution.

Third, concluding that a 33:1 ratio is unreasonable is against Z-E-R-O Supreme Court precedent.

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