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January 26, 2011

Notable comments about federal sentencing trends from Senator Charles Grassley

A helpful reader pointed out to me that US Senator Charles Grassley had these notable comments about federal sentencing law and practice at the end of this lengthy statement prepared for today's Senate Judiciary Committee hearing on fraud prosecutions:

Finally, Mr. Chairman, I'd like to note that regardless of the substantive laws we pass, the investigative and law enforcement resources appropriated, and the prosecutions brought so far, criminal fraud will not be adequately deterred unless we revisit the Supreme Court's decision in United States v. Booker.  In that case, the Supreme Court held that mandatory Sentencing Guidelines violated the Sixth Amendment.  Now that the Guidelines have been held to be merely advisory, the disparity and unfairness in judicially imposed sentences that we sought to eliminate on a bipartisan basis are returning, especially in two areas: child pornography and fraud cases of the type we are discussing today.  If potential fraudsters view the lenient sentences now being handed down as merely a cost of doing business, efforts to combat criminal fraud could be undermined.

Supporting this position is a Reuters analysis of 15 insider trading cases that were brought by the United States Attorney in New York in 2009 and 2010, which concluded that in 13 of them, or 87 percent, the sentences imposed were lighter than the terms prescribed by the Sentencing Guidelines, and seven, nearly half, contained no prison term.  By contrast, in other cases, New York federal judges issued sentences below those called for in the guidelines 57 percent of the time, in itself a shocking change from the system that the Sentencing Reform Act of 1984 created until the Supreme Court's Booker decision. Nationwide, 42 percent of all federal sentences were below the guidelines.  Federal judges often seem not to understand the seriousness of these crimes.  At one sentencing proceeding in an insider trading case, Judge Alvin Hellerstein said, "[T]here are no victims in this crime, at least not in any real sense."  Rather than imposing a sentence in keeping with the guidelines of 37 to 46 months, he noted that the defendant was an accomplished academic with an autistic son, and gave three years' probation.  Most of the defendants who received lenient sentences did not cooperate with the government.  As a result, defense lawyers are now arguing that to avoid disparity, their non-cooperating insider trading clients should also receive sentences below the guidelines.

January 26, 2011 at 04:34 PM | Permalink


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"Federal judges often seem not to understand the seriousness of these crimes."

That's possibly sometimes true. But it's difficult to see how members of Congress are generally better placed than judges to understand the seriousness of the crimes. After all, judges are far more intimately aware of the facts (facts that are, by the way, predominately established by the testimony of government witnesses) in particular cases falling under the same statutorily defined offense.

Of course members of Congress are better placed than judges to assess the sense of their constituents' views about the seriousness of the generic offense. Unfortunately, there's considerable room for doubting that they reliably do so. And then there is the prior question: why suppose that their constituents would be any better placed than judges to assess the seriousness of various statutorily defined offenses?

Posted by: Michael Drake | Jan 26, 2011 5:37:27 PM

Before any legislative remedy is proposed, impeachment proceedings should be brought against all sitting members of the Court, whether they voted for Booker or not. The rest are civil with and on the side of those who voted. Any Justice who does not want to be impeached must publicly denounce the Justices who are to be removed, and pledge total allegiance to our country, and not to its internal enemies. There should be no charges of collateral corruption or any other lawyer gotcha. The opinion is the high crime. Congress must begin to hold this Court accountable. To deter their thievin' lawyer rent seeking. The lawyers in the Congress will not allow it, but it would be a good idea.

If a group of people allows 23 million major crimes a year, year after year, for decades, isn't time they be fired? This Court is the cause of most crime. Empty it of its biased, pro-criminal, pro-government, pro lawyer lawyers, and most social and criminal justice problems would be solved.

Posted by: Supremacy Claus | Jan 26, 2011 9:05:27 PM

Senator Grassley cannot be trusted in any statement out of his facial orifice.

He deliberately lies when it comes to ethanol production from corn. It is useless to improve our requirements for energy. As a Ch.E. who knows the Laws of Thermodynamics, he and his constituency are a fraud. This MAN is a fraud. He is lining his and his farming constituency with everyones money. How far down into the depth of this depravity do we have to fall as a country before we say, God Save Us.

I should state that yes, I am an engineer. However for the last 20 years of my career, before I "retired", I dealt directly with the FDA and 21 CFR. Early on, from my experiences with the FDA GMP regs, it was clear to me that the federal government wrote the rules as they went along and as they saw fit.

I don't know who should set "just" sentences. What we have now is too political (FSA). The judiciary (and not neccessarily Congress BO) would be more inclined to see the exceptions to the law. Congress is essentially a useless organization in the present day. The fourth leg of the government (present day mass media) has no integrity whatsoever to reign them in. As Justice Anthony Kennedy said in a speech in 2004, (I doubt that he said this with the necessary sincerity,

"A people CONFIDENT in its laws and institutions should not be afraid of mercy."

As Professor Berman told his children on July 4th:

"That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Posted by: albeed | Jan 26, 2011 11:50:03 PM

Curiously, Sen. Grassley omits any reference to the growing judicial consensus that child pornography guideline is significantly flawed, as it skewes just about every offender to the statutory maximum. In those cases, but for Booker, the defendants would have received draconian sentences far out of balance with their criminal culpability.

In my opinion, at least some of the problems with disproportionate sentences (be it inappropriately light sentences for white-collar crimes or unduly harsh sentences for child porn possession) can be dealt with by appellate courts. At least in the Ninth Circuit, the court's review of this issue is virtually non-existent.

Posted by: Gene | Jan 28, 2011 12:57:05 PM

Excellent article, keep it coming keep it growing.Wow - he looks kind of like a goth Bruce Schneier.

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