« Misdemeanor defendants in NYC left in jail (and perhaps pleading guilty) when unable to make small bail | Main | President Obama finally grants first pardons of his presidency!! »

December 3, 2010

Notable new sentencing opinion from Judge Gertner for low-level crack dealer

Long-time readers know that  and today US District Judge Nancy Gertner long ago earned her place in my Sentencing Judges Hall of Fame by effectively exploring a range of important issues through detailed sentencing opinion in the immediate wake of Blakely and Booker.  And I am pleased now to report that, though basic sentencing law is now more settled, Judge Gertner continues to write opinions that knock important sentencing issues out of the park. 

Earlier this week, for example, she produced a fascinating discussion of post-Booker sentencing issues through a 26-page decision in US v. Wigham, No. 06cr10328-NG (D. Mass. Nov. 30, 2010), which can be downloaded below.  Sentencing fans will want to read the opinion in full, and here is a snippet to whet the appetite:

Once I determine that a Guideline sentence does not apply, I must then decide what sentence is appropriate to meet the statutory sentencing purposes of 18 U.S.C. § 3553(a) as Booker directs. See 543 U.S. at 224.  In this regard, I will use the approach which I used in other drug sweep cases, described in United States v. Garrison, 560 F. Supp. 2d 83 (D. Mass. 2008).  In Garrison, I evaluated and compared the sentences imposed on men picked up in the same sweep, the same geographical area, with the same charges -- including sentences imposed by other judges -- to the case of the defendant before me.  In effect, Garrison makes the sentences of individuals imposed by other judicial officers function as precedent for my sentence, part of a common law of sentencing.

The government criticizes the Garrison approach, arguing that it will somehow exacerbate disparity in this jurisdiction and cites to a recent article by Professor Ryan Scott ("Scott"), Inter-Judge Sentencing Disparity After Booker: A First Look (Ind. Legal Studies Research, Paper No. 140, 2010), which reflected concerns about Massachusetts federal sentencing. As I describe below, Scott’s article defines disparity in terms of the extent to which District of Massachusetts judges are following the Sentencing Guidelines.  Following the Guidelines, it suggests, promotes the kind of sentencing consistency that the Sentencing Reform Act aimed for.

I disagree with the premise, as I describe below. S imilarly situated with respect to the Guideline categories does not necessarily mean similarly situated with respect to the defendant’s actual role in the criminal endeavor or his real culpability.  Guideline categories (like career offender guidelines) are frequently over broad, giving the same "score" to individuals who are not remotely similar and ignoring critical differences between them (their role in the offense, their mens rea) that should bear on punishment. In any event, in this case, the government’s position touting the Scott article was ironic. It agreed that the Guideline sentence is far too high for Whigham.

To the extent that Scott's findings suggest differences in the approach to the Guidelines among the judges in Massachusetts, they should be carefully evaluated, which I do below. The critical question is what these disparities reflect -- whether they reflect the untutored preferences of particular judges, as often occurred pre-Guidelines, or real jurisprudential differences involving Guidelines that are problematic.  In my judgment, they reflect the latter; the good faith, reasoned evaluations of Guidelines and facts.  Even before Booker, the Guidelines contemplated that district court judges would depart from the Guidelines on occasion, that the Commission would consider these departures and amend the Guidelines, if appropriate, allowing for a collaborative evolution of Guideline law.  After Booker, more of the work of that evolution is to be done by the appeals courts than the Commission -- determining which approaches are "reasonable" and which are not.

In the short term, until there is precedent in the areas in which there are real issues, like the career offender and crack cocaine Guidelines, differences in approach across cases are unavoidable.  That is all the more reason for using the Garrison approach, at the very least, looking carefully at the sentences given to individuals in a given sweep, in the same geographic area, in roughly the same time period, having the same role in the offense.

Let me be clear -- in answer both to Professor Scott and the critics of advisory Guidelines: When I choose not to follow the Guidelines, it is not because I simply disagree with them and seek to substitute my own philosophy of sentencing.  It is because the Guideline at issue is wholly inconsistent to the purposes of sentencing under 18 U.S.C. § 3553(a).  And when I assign a non-Guidelines sentence, I am likewise not picking a number out of the air, but keying what I do, to the extent possible, with the sentences and reasoning of other judges, and the evidence that I have been given.  Finally, I write decisions so that my reasoning is clear and may usefully serve as precedent to others.

Download WhighamSentMemoNov30th2010AMENDED

December 3, 2010 at 10:09 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2013489b48bbd970c

Listed below are links to weblogs that reference Notable new sentencing opinion from Judge Gertner for low-level crack dealer:

Comments

What a sane, sensible, smart approach.

Posted by: lawyer | Dec 3, 2010 10:19:28 AM

She could shorten things up by just saying that whichever of a number of alternative analyses produces the most defendant-friendly sentence is the one she will choose. This is not exactly new with her. Indeed, for years she had been an outlier among her fellow district judges across the country.

Posted by: Bill Otis | Dec 3, 2010 11:06:10 AM

Much as Bill suggested: if the previous district judges to impose sentences on "men picked up in the same sweep, the same geographical area, with the same charges," imposed within-but-high-end-of-Guidelines sentences or even departed upwardly from the Guidelines, would Judge Gertner feel a similar pull towards imposing the same or similar sentences, to maintain uniformity with the sentences her colleagues had imposed? If not, then it would seem that this methodology is a one-way ratchet for arriving at lower sentences and that the avowed reasoning is largely window-dressing (even if Judge Gertner sincerely believes that it isn't).

Posted by: guest | Dec 3, 2010 12:07:28 PM

A la Bill's suggestion, Jusitce Alito could shorten his opinions up by just saying that whichever of a number of alternative analyses in a given case produces the most prosecution-friendly result is the one he will choose. Good idea, Bill!

Posted by: taupe | Dec 3, 2010 12:32:21 PM

I see that none of the commenters denies that Gertner chooses the analysis best suited to reach a defendant-friendly sentence, and that this is not new with her.

I'd welcome any actual facts about her overall sentencings to show that I'm wrong. Any takers?

Posted by: Bill Otis | Dec 3, 2010 1:06:51 PM

Amd I'm glad to see that Bill doesn't deny that Alito chooses the analysis best suited to reach a prosecution-friendly result. Glad we agree on something. And I'm sure he'd agree as well that the result-oriented judging of a Supreme Court Justice is more far-reaching and troubling than that of a mere district-court judge. But, funny, he never seems to comment on Alito's result-orientedness.

Posted by: taupe | Dec 3, 2010 1:16:16 PM

I expect I'll take the offer. You're OK if it's not 'til next week, right? This should be fun.

Posted by: = | Dec 3, 2010 1:39:53 PM

I've followed Gertners sentenceing for some time.
What I like is she doesn't rubber stamp the PSR and move on to the next case....Since Federal sentences don't have Parole, its a given that there sentences are way out of proportion as are most things the federsal gov. does...SHe does an anaylsis and shakes out the guidelines, no guidelines will ever be a cookie cutter as the feds want them to be...If they were, we wouldn't really need a Judge to waste their time on the ordeal..would we now..Just rubber stamp it like so many Federal Judges do.or like Judge Camp did, while high on drugs...How is you holier than thou federal system now that he has skated off lightly...with very little asnalysis...Simply past service, of ratching sentences upward while high on cocaine and lushing it up with a prostitute... Did I mention he had a Gun but 924(c) portion of his sentence....What a Pig....

Posted by: Abe | Dec 3, 2010 2:09:54 PM

But he didn't have his sentence raised for the gun charge, it was merely bypassed, cause hes a judge.....Anyone else with drugs and a gun would got the 10 yr sentence....It was a shame, like so much of what happens with Federal anything...

Posted by: Abe | Dec 3, 2010 2:12:42 PM

taupe --

And STILL you don't deny it. I appreciate your endorsement, I guess.

P.S. Doug wrote and titled this post about Gertner, not Alito, so pardon my staying on subject. You might try it sometime.


= --

I'll be looking forward to the statistics showing that Gertner is a middle-of-the-road sentencer instead of a defendant-friendly sentencer. This should indeed be fun.

Maybe as an extra added bonus you could show how Stephen Reinhardt is a moderate.

Posted by: Bill Otis | Dec 3, 2010 2:46:04 PM

If I have a chance, I'll even look at Adelman out of Wisconsin.

Posted by: = | Dec 3, 2010 2:55:20 PM

If statistically Gertner's sentences are more lenient for the defendant, why is that a problem? Statistically, some judges' sentences are likely lenient for the State. There's nothing necessarily wrong with that either, and I wouldn't cite that to say that those judges are acting out of a pro-State bias any more than Gertner is using whatever reasoning that suits her so that she can render a sentence that is favorable to the defendant.

Posted by: Buffalo Bill | Dec 3, 2010 3:35:26 PM

Bill,

And STILL you don't deny it! Thanks.

I don't think you really believe that any of Prof. Berman's readers think you're refusing to comment on Alito b/c you're "staying on topic," rather than b/c you know he's as result-oriented a judge as any in the land (but don't want to admit it). And I don't recall you're responding to a recent post of Prof. Berman on the very subject of Alito's result-orientedness. Why is result-orientedness bad when engaged in by a liberal judge but fine when engaged in by an ultra-conservative one?

I'll be looking forward to the statistics showing that Alito is a middle-of-the-road justice rather than a prosectution-friendly one. This should be fun.

Oh, and how exactly is Reinhardt on topic when Alito isn't?

Posted by: taupe | Dec 3, 2010 4:14:36 PM

taupe --

You won't even mention Gertner's name, even though she is the topic of this thread. You'd be better advised to heed Abe and Buffalo Bill, who implicitly concede the obvious (that Gertner is a pro-defendant sentencer) but take the view that there's nothing particularly wrong with that.

Indeed, now that I think of it, you seem at some level to have joined them, when you say, "Why is result-orientedness bad when engaged in by a liberal judge but fine when engaged in by an ultra-conservative one?" To the extent this is a concession that Gertner is in fact a result-oriented liberal judge, you're making progress.

P.S. To respond to your question directly, result orientation is a bad thing in either a liberal or a conservative judge, but if there is to be result orientation, it's better that the sought result be just punishment and safety for future victims rather than playing kissy face with some hoodlum.

Posted by: Bill Otis | Dec 3, 2010 6:09:04 PM

Bill

At last! You admit that your view of result-orientedness varies depending on whether you like the result or not. Thanks for finally just being honest about it (although it sure took you awhile).

Posted by: taupe | Dec 3, 2010 6:38:15 PM

Putting aside all the uninteresting political crap that has become so characteristic of the comments on this blog,I cannot say that a 60 month sentence for this defendant is unjust. From what I can tell, he is more pathetic than evil. As a matter of personal preference, I would reserve the more draconian sentences for the latter, rather than the former.

Posted by: Grotius | Dec 3, 2010 6:49:19 PM

taupe --

What I actually said is this: "...result orientation is a bad thing in either a liberal or a conservative judge, but if there is to be result orientation, it's better that the sought result be just punishment and safety for future victims rather than playing kissy face with some hoodlum."

With what part of that do you disagree, and why?

Posted by: Bill Otis | Dec 3, 2010 6:52:25 PM

I didn't concede that. She could be. I think I've read maybe three of her opinions. Not a good sample size. I'm saying even if more of her sentences are favorable to the defendant, that doesn't mean she's purposefully engineering sentences in order to reach pro-defendant outcomes. A judge can fairly interpret the 3553(a) factors to reach results that on balance favor defendants' specific desired outcomes, just as a judge could for the State, but that does not mean the judge is purposefully doing so because she has a pro-defendant/State bias.

Posted by: Buffalo Bill | Dec 3, 2010 7:42:38 PM

Bill,

Yes, I understood what you actually said - that, if a judge is to be result-oriented, you prefer that he or she be oriented in favor of the prosecution over the defense. What I disagree with is your very premise: that one form of result-orientedness is better than another. I think, as most fair-minded people do, that judges should decide cases on the law and the facts, not on their preconceived notions of what the result should be.

As I said before, though, I do appreciate your candor in finally admitting that you prefer result-orientedness in one direction over another. At least that's honest.

Posted by: taupe | Dec 4, 2010 12:32:52 AM

taupe --

You might try some honesty yourself. For the second time, you deliberately omit my ACTUAL premise, which was, "...result orientation is a bad thing in either a liberal or a conservative judge." Did you not see that?

I guess the reason you omit it is that it is indistinguishable from what you say is your own stance, to wit, "I think, as most fair-minded people do, that judges should decide cases on the law and the facts, not on their preconceived notions of what the result should be."

It is only by deep-sixing my actual premise that you are able to say that I have "finally admit[ed] that [I] prefer result-orientedness in one direction over another."

How many times do I have to say that I prefer NO result orientation in a judge? If we must have result-oriented sentencing judges, however -- and only in that event -- I would hope you would refrain from speaking up for the pro-defendant orientation Gertner displays.

Posted by: Bill Otis | Dec 4, 2010 8:57:54 AM

Bill,

I get your central premise, really I do. It's your secondary premise I find so disturbing - that one form of result-orientedness is better than another. I don't think many would agree with you on that. But notwithstanding your unusual views, I would hope you would refrain from speaking up for the pro-prosecution orientation judges like Justice Alito display.

Posted by: taupe | Dec 7, 2010 1:58:10 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