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November 4, 2011

Notable USSC compilation of federal guideline departure provisions

Earlier this week, the US Sentencing Commission published this interesting new 18-page document which compiles all the provisions within the federal sentencing guidelines concerning departures.  Here is how the document is described:

This compilation identifies provisions in the Guidelines Manual that indicate when a departure based on a specific ground may be warranted.

The compilation identifies the guideline provision and specifies the ground for departure contained in that provision.   The ground for departure is printed in bold type if it involves a downward departure and italic type if it involves an upward departure. (Where the ground for departure could involve either an upward departure or a downward departure, depending on the circumstances, the ground for departure is printed in normal, roman type.)

By my very rough count, this document list nearly 40 guideline provisions that involve downward departures, but about three times as many guideline provisions involve upward departures.

November 4, 2011 at 07:44 AM | Permalink

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"By my very rough count, this document list nearly 40 guideline provisions that involve downward departures, but about three times as many guideline provisions involve upward departures."

Q: But what is the ratio of downward departures to upward departures ACTUALLY GIVEN on sentencing day?

A: More than 20 to 1. For almost all practical purposes, there is no such thing as an upward departure. The defendant's chances of getting a downward departure are, by contrast, approaching 50%.

Bottom line: It wouldn't make a particle of difference if there were 10,000 times more grounds for upwards departures than for downward ones, when only the downward ones get used.

Posted by: Bill Otis | Nov 4, 2011 8:08:32 AM

What do you think is the chief reason, Bill, the actual departure rates are so skewed (and have always been so skewed even over long periods in which GWB was only appointing, and an R Senate was only confirming, relatively conservative judges)? Do you think all judges, even R judges, love criminals or could something else be at work here?

I have long believed that this pattern of actual departures is because the USSG ranges are skewed to be much too severe due to many guideline provisions/adjustments that enhance sentences for every possible aggravating factor and rarely reduce sentences. Notably, the crack variance rate has gone down as a result of the new crack guideline, and experiences in states show a reasonable balance between upaward/downward departures when the guideline range is set at a sensible level of severity.

Do you accept the notion that the modern 20 to 1 downward pattern in judicial departures/variances (which itself comes after prosecutors cut a break to 25% of defendants themselves) is a sign the guidelines are generally much too harsh? Or is it a sign, in your view, that federal judges are much too soft?

Posted by: Doug B.. | Nov 4, 2011 9:02:41 AM

Prof. B...Please don't confuse Bill Otis with logic. All he wants to do is lock 'em up and throw away the keys. His recent comments about recidivism statistics show that he really believes that once in prison, stay in prison forever for the good of society. Perhaps he would be an advocate for euthenasia for anyone sent to prison. I know he is very sincere and is absolutely convinced of his strong positions, but as a casual observer I wonder if he spent too many years as a prosecutor.

Posted by: mike | Nov 4, 2011 10:13:00 AM

as an interested observer, i have no doubt that bill spent too much time as a federal prosecutor. federal prosecution is not a profession that induces doubt in its practioners. being a federal defense lawyer, otoh, keeps one well aware of how fallible one is and how that stuff about hard work paying off ain't always true.

now, having said that, i think one reason for it is that, by and large, federal prosecutors select cases that are pretty much locked down. they have done their homework and they mostly bring cases that will lead to conviction (one can doubt whether some of these cases should be brought, or a lot of them if one is taking about 1326 cases---really a guy who can't get through the port of entry needs to be prosecuted instead of walked back over the bridge?). being mostly right about guilt, however, tends to leak over to the punishment area and prosecutors think they know it all about punishment and the answer is simple---be harsh. in this, they are not mostly correct. some guys needs harsh, a bunch more don't, and we end up wasting resources and lives.

last things--- (1) i do think the recent trend toward downwards is a result of the SC having been harsh in its adjustments for years and, also, of the development of a culture in some probation offices in which racking up as many adjustments as possible was seen as a positive (i suspect my office is not the only one ever to be told by po employees that we were on the "wrong" side, by which they didn't mean of the particular arguemnt), and (2) the judges are probably thrilled at having the chance to express what they always felt---that the guidelines are too harsh on a number of offenses and offenders. before booker, et seq, a downward departure had a good chance of being reversed and most district judges, in my experience, would rather be a bit harsh, than be reversed.

Posted by: big bad wolf | Nov 4, 2011 10:38:34 AM

mike --

"[Bill Otis's] recent comments about recidivism statistics show that he really believes that once in prison, stay in prison forever for the good of society."

I notice you don't either give or dispute the recidivism statistics I cited, and, yes, I have no doubt that many others here will agree with the view that the good of society can go to hell.

Posted by: Bill Otis | Nov 4, 2011 10:55:53 AM

Doug --

"What do you think is the chief reason, Bill, the actual departure rates are so skewed (and have always been so skewed even over long periods in which GWB was only appointing, and an R Senate was only confirming, relatively conservative judges)? Do you think all judges, even R judges, love criminals or could something else be at work here?"

You bet something else is at work here. The something else is that there is no professional downside to upbraiding the prosecutor's office, and plenty of upside, by way of popularity with the much, much larger private bar, not to mention puff pieces in the newspaper about how "compassionate" you are, in granting downward departures.

When is the last time you saw an editorial in any of the big papers patting a judge on the head for a pattern of UPWARD departures?

Right. Judges like to read puff pieces about themselves just as much as anyone else does.

If the scew towards defendants were 3-1 or 3-2 or 5-2 or something that might plausibly be called just a little balanced, that would be one thing. When it's more than 20-1, that's another. If the scew were 20-1 towards UPWARDS departures, you'd need to get a bigger server to accommodate all the defense screaming that would show up on this board about how the judges are all Nazis.

Posted by: Bill Otis | Nov 4, 2011 11:11:49 AM

big bad wolf --

"as an interested observer, i have no doubt that bill spent too much time as a federal prosecutor."

I know, I know. Anyone who dares to disagree with the Received Wisdom of the defense bar, and thinks instead that imprisonment has significantly lowered the crime rate, isn't actually reading the statistics, he just has some psychological problem resulting from spending too much time unraveling defendants' lying.

"...federal prosecution is not a profession that induces doubt in its practioners."

Actually, it induces enormous amounts of doubt, because you have to keep parsing through the changing stories you hear to try to figure out how much of any given one might actually be the truth.

"...being a federal defense lawyer, otoh, keeps one well aware of how fallible one is and how that stuff about hard work paying off ain't always true."

I hadn't been aware of making a claim of being infallible. Where was that?

Much of the rest of your post is balanced, but your claim that prosecutors think they "know it all" about punishment is baloney. It's an adversarial business. Prosecutors are no more robots for seeking to go up at sentencing than defense lawyers are robots for always seeking to go down. Particularly at sentencing, there are generally two sides to every case. In an adversary system, the guy at one table will take Side A and the guy at the other table will take Side B.

I'm sorry if that makes me seem like I was with the USAO for too long, but that is, in fact, how it works, as I strongly suspect you know.

P.S. Is there such a thing as having been a defense lawyer too long?

Posted by: Bill Otis | Nov 4, 2011 11:43:22 AM

bill, you, like me, have the biases wrought by the experiences and disappointments of doing our cases. i don't read every paper, but I'd point out that we almost never see articles in our paper about acquittals---it's not news, though the arrest may have been---but lots of humdrum convictions, on pleas or after trial get a story, although usually a small one, to tell the public the DA or AUSA is working hard against bad guys. it's possible that, like a lot of people, we see the pattern we wish to see.

which makes the downward variances that much more interesting to me. we've had 30 years of judges drawn from conservative circles and prosecutors, which, given the number of downwards we are seeing, would suggest that the experience of sitting over case after case adds perspective to ideology.

Posted by: big bad wolf | Nov 4, 2011 11:56:05 AM

big bad wolf --

I contribute to a blog called Crime and Consequences, and for that reason poke my head in national papers, i.e., the NYT, LAT, WaPo, and WSJ. I have never once seen, in any of the first three, an editorial praising a judge for being tough at sentencing, but have seen time and again editorials praising, and/or urging, leniency. They are also bitterly opposed to the DP no matter what the crime.

The WSJ is generally conservative, but not so much on criminal law issues, since it has a business readership -- a group that gets nervous when the USAO for the SDNY indicts some corporate swindler, and thus tends to sign on to the Harvey Silvergate theory that the world is so over-regulated you can commit a crime by just walking out your front door in the morning. Indeed, the Journal went ballistic over the honest services statute, which might be one of the few with which the non-white collar defense bar agrees.

P.S. I have not been in the USAO for 12 years and I now teach a law class at Georgetown. You can teach at a law school like that if you're a conservative, but you can't if your simply an ideological conservative acting merely as the vessel of built-up pro-prosecution prejudices. That is not how top-tier law schools operate in this day and time. It is, if anything, the other way around.

Posted by: Bill Otis | Nov 4, 2011 12:20:30 PM

Otis, I don't know where you are getting your 20:1 statistic, but the correct statistic is 9.7 down to 1 up. See Table 1, Preliminary Quaterly Data Report. Just another bit of inaccurate lore you are spreading around. Oh, yes, then there are another 26.8% of all cases involving downward departures and variances sought by prosecutors. I guess prosecutors decided to ask that defendants be sentenced to a lower sentence in more than a quarter of all cases even though the guideline range is just right? So, they put public safety in jeopardy why? In your world, wet behind the ears partisan prosecutors are presumed to make good decisions, while neutral, trained judges, far more of whom were appointed by Republican presidents than by Democratic presidents, are suspect? Get a grip.

I didn't read your interview about recidivism and don't intend to, but I suspect you did not mention that the Commission did a study comparing recidivism rates of defendants released early under the 2008 crack amendments and defendants who served their full sentences and found that the latter had slightly higher recidivism rates. That would mean that the extra years those prisoners served had, if anything, a negative impact on the likelihood of recidivism. And I suspect that you did not mention that the prison/jail population and the recidivsm rate are both way down in New York state.

Posted by: ABE | Nov 4, 2011 12:32:46 PM

ABE --

"Otis, I don't know where you are getting your 20:1 statistic, but the correct statistic is 9.7 down to 1 up."

That's an outright lie, as you admit (understandably with less belligerence) down the page. Below range sentences are given more than 20 times as frequently as above range sentences. You can have that under oath.

Of course you "blame" the government for a goodly chunk of the below-range sentences, and in that you are correct. Of course, if the government did NOT make substantial assistance motions in large numbers, you'd be the first one yelping NAZI, now wouldn't you? (This is assuming you don't already yelp it).

Not that the figure you put up -- 9.7 to 1 -- makes much difference. Any way you look at it, departures are strictly the defendant's playground. As I said, and conspicuously you don't deny, there is virtually no such thing as an upward departure. It's a one-way street of goodies for the criminal.

"I didn't read your interview about recidivism and don't intend to, but I suspect you did not mention..."

Thanks for illustrating part of the reason the defense bar has the reputation it does. You haven't read what I said, and snort that you don't intend to, but you SUSPECT it says this and SUSPECT it says that.

Wonderful. Do you even hear yourself?

Since you're content to remain ignorant, I'll leave you right where you want to be.

Posted by: Bill Otis | Nov 4, 2011 2:00:53 PM

bill, i think one can be a defense lawyer too long, but for a different reason than i think one can be a prosecutor too long. we defense lawyers lose almost all the time. that can wear a person down and impair judgment. sometimes that imparirment might manifest itself as burnout that hurts the client. sometimes it might manifest as a chip on the shoulder that insists every one of one's clients is an innocent victim. no good defense lawyer thinks that.

the danger of being a prosecutor too long, i think, is that one gets used to winning the overwhelming majority of the time and i think that affects how one perceives one's abilities, both as a lawyer and as a personal judge of what is right and fair. if one gets reinforced, as federal prosecutors do all the time, one tends to think one wins because one is correct as opposed to one has the side with the insitutional and public bias toward it. this tends to manifest in an insistence that the accused and the judge accpet one's declarations at all times. that's not healthy, but it seems hard, imo, for even the best prosecutors to avoid. in a way it's understandable. you're bright men and women with a high success rate. it's hard not to think that doesn't translate into rightness and righteousness.

one big point on which we disagree is this: you say that defense lawyers always ask that the sentence come down. to the contrary, a good defense lawyer recognizes a bad case and an acceptable guideline range and doesn't make requests for downwards that are likely not only to be refused, but to piss the judge off and hurt our client. this comes from knowing the judges, the types of cases, and the guidelines in the way experienced defense lawyers do. for those of us with lots and lots of cases, this happens fairly often. (it may be that fancy high-profile lawyers always ask for less, but those of us who represent the lower levels don't). again, imo, in my area, the prosecutors almost invariably ask for the most they can get. they may not be robots, but they sure aren't being nuanced.

i think you will see that i wasn't questioning your position at your law school, if you read my comment. i was stating that the judges, whom you simply can't claim are a bunch of liberals or former defense attorneys, must be influenced by the cases they see becuase their sentneces cannot be blamed on some soft-on-crime ideology.

even way down here in the middle of nowhere, we can get the national papers. you will notice i was talking about articles, as i assumed you were doing when characterizing things as "puff pieces." generally, one doesn't think of editorials as being puff pieces. certainly the papers editorialize on the subject, many times in favor of leniency. we disagree, obviously, on that subject.

Posted by: big bad wolf | Nov 4, 2011 4:47:57 PM

Yes Bill the law is an adversarial business. But at least in its highest aspirations its a business geared towards truth-seeking, to "getting it right," as you have acknowledged elsewhere.

"I have no doubt that many others here will agree with the view that the good of society can go to hell."

I think that people simply disagree with you Bill as to what is good for society. I think that one of the real psychological downsides to the "getting it right" view on the legal process is that one can spend so much time and effort to get it right that it becomes difficult to admit that one is wrong and sincerity transforms itself into a mental straight-jacket.

It seems to me that if a significant number of conservative judges have after a number of years on the bench come to a conclusion that is opposite to yours that an open-minded fellow would take that to heart and at least wonder if the collected wisdom of peoples' experience might be more of an accurate representation of reality than one's own view. But nah, it's easier to dismiss them as weaklings with a fondness for public flattery.

Posted by: Daniel | Nov 4, 2011 5:37:16 PM

I wish Bill would answer questions the way he frequently demands that others do: yes or no.

When Prof B. asked him, for example, if he thought the downward pattern to judicial variances/departures is a sign that the guidelines are generally much too harsh, it would have been so refreshing if Bill had just answered: no.

I think the gist of his answer was in fact: no, he does not think the reason judges frequently depart/vary downward is that the guidelines are generally too harsh. But it's a little hard to tell.

Posted by: streetlaw | Nov 4, 2011 5:56:57 PM

Daniel --

"...it's easier to dismiss [judges who frequently give lenient sentences] as weaklings with a fondness for public flattery."

Judges, like other human beings, have a weakness for flattery, you bet. This is a surprise to you?

So to observe that they do is merely to state what everyone knows. This differentiates what I said of them from what you said of me, to wit, that I am a child molestor and a necrophiliac.

The pro-defense side has hit some low notes, but none lower than that. Still, Daniel, I have to congratulate you on throwing some revealing light on exactly where the pro-defense side is coming from. Not a single one of them has condemned your making those accusations.

The reason for this is not that they think they're true. The reason is that, in good liberal McCarthyite fashion, they want to rid the board of one consistently dissenting voice. And the way they want to do that is by sitting in snickering silence while you and other gutter punchers launch personal attacks so vile, vulgar and disgusting that their target would be incentivized to go elsewhere.

There's a reason you and they won't say that sort of thing to my face. It's the same reason you won't use your real first and last name. And I think we can all figure out what that is.

Posted by: Bill Otis | Nov 4, 2011 6:50:38 PM

streetlaw --

"I wish Bill would answer questions the way he frequently demands that others do: yes or no."

How odd that you would think the wishes of a person who cowers behind anonymity would control the content of the responses given by a person who signs his name every single time.

Posted by: Bill Otis | Nov 4, 2011 6:59:22 PM

Bill --

How odd that you would think the wishes of a person who demands that others do as he says and not as he does would contol the contents of the responses given by others simply because he signs his name every single time.

Posted by: streetlaw | Nov 4, 2011 7:09:20 PM

Many if not most of the federal judges in my big city district came from the ranks of civil side and had no criminal experience. They were wholly unprepared to look an offender in the eye and deprive him of his liberty.

They were not shy about pronouncing their distaste for sentencing-both in chambers and on the bench. The black hat was never a comfortable fit.

Posted by: mjs | Nov 4, 2011 7:12:12 PM

big bad wolf --

"[I]f one gets reinforced, as federal prosecutors do all the time, one tends to think one wins because one is correct as opposed to one has the side with the insitutional and public bias toward it."

Actually, because I was the head of appeals, most of my cases were in instances where one of my colleagues had lost. It is true, though, that, in those cases, when I went to the Circuit, I won.

But the reason I won was not that the government has institutional resources and public sentiment on its side, although for the most part it does. The reason I won was also not that I was infallible or thought I was -- thinking any such thing is the quick road, not to winning, but to disaster.

By far and away the main reason I won was that the law was on my side. Two other things helped as well. The more important of the two was that the defendant was factually guilty (and often dangerous), and everybody in the courtroom knew it. The other was that I never tried to hide the ball. If my argument had a weakness, I would say so up front and try to persuade the panel that the strengths outweighed it. And I never, ever misstated the record or downplayed those parts unfavorable to me.

P.S. I appreciate your businesslike and thoughtful tone, and wish it were more widespread. I have no problem with anonymity from commenters who talk about issues rather than take shots.

Posted by: Bill Otis | Nov 4, 2011 7:14:04 PM

streetlaw --

"How odd that you would think the wishes of a person who demands that others do as he says and not as he does would contol the contents of the responses given by others simply because he signs his name every single time."

I must have missed the part where I said that my wishes would control your responses.

I have no desire whatever to control or even influence your responses, since you have yet to say one single word making an argument about the subject of Doug's post.

Still, streetwise: As long as you prefer to talk about persons instead of issues, do you agree with Daniel's previous statements that I'm a child molestor and a necrophiliac? C'mon, Mr. Streetwise. No need to hold back! Your anonymity (quite designedly) assures no accountabiltiy for whatever you say, SO COME ON DOWN.

And down and down.

Posted by: Bill Otis | Nov 4, 2011 7:31:06 PM

bill, i do mostly appeals and i can assure you i've lost cases that i should, intellectually under the existing law, have won. that said, i agree with you that the key to winning is to be more persuasive overall, despite the flaws in one's arguemnts. this is rarely done, on either side, by running from flaws; rather one wins by explaining why the flaw is not reason to reject the argument. nearly all arguments are flawed.

i've been doing this for a long time. i used to say we should, on federal appeals, lose close to 90% of the time, win 5 to 7%, and the rest were tossups. now, in the time you won some of yours in your circuit, i lost some in mine that i shouldn't have under the law and i now say we probably can't win but 2 or 3 %. i lost because the law moved, which happens, but i think we should recognize it moves both ways across time and not attribute the maximum evil to shifts we dislike. that's why i try to be business like. and i think we should recognize that panels matter: i had a case a few years ago in which the young DOJ attorney told me that the folks in d.c. were worried about my issue until they saw the panel. the panel treated me respectfully and assured her in her five minute argument that she would win. this is real life. each of us might wish it to be a bit more rigorous, but it is not always so.

i know you have a much more public profile than i---my anonymity is because i shouldn't have a public profile, i have ordinary clients who don't need a public lawyer. i, though i often disagree with you, respect your thoughts and your evident intellect. which is why i suggest that, here, at the wonkish professor's place, you just not pick unnecessary fights. you do yourself no favors by doing so. for example, amply on display, daniel said neither of the things that you attribute to him. in another forum, perhaps the public debates you rightfully and usefully participate in, such a flourish might be justified. here, i wonder if supremacy clause has jumped in and stolen your identity.

Posted by: big bad wolf | Nov 4, 2011 10:34:23 PM

big bad wolf --

"...daniel said neither of the things that you attribute to him."

Unfortunately he did, in a recent thread, and if that kind of thing goes unremarked, it's poison.

I put up with a good deal, understanding that the Internet is a rough and tumble world. But that crossed the line of basic decency.

Good for you for being able to find out the panel in advance. That's not how it was in the Fourth Circuit. You showed up in the morning to see which courtroom your case was assigned, and found out only then what panel would be in that courtroom.

Posted by: Bill Otis | Nov 4, 2011 11:55:12 PM

bill, interesting, though maybe we need to note a previous thread for those of us who don't follow threads anywhere, even here at what seems, when i look in, to be doug's civilized place. name calling, from either side is wrong,i think. without appropriate references, however, even retrospective even-ing of scores can seem unwarranted. i'm fully happy to disagree with you on the merits of things

a different world, for both sides, not knowing the panel. harder to target one's argument; maybe fairer.

Posted by: big bad wolf | Nov 5, 2011 12:06:22 AM

Bill.

I never called you any of the things you say I did. I merely /wondered/ what the root of your sentimentality might be since you have never directly stated. Surely you can grasp the basic distinction between an assertion of fact and idle speculation. It seems to me if you persist in dodging people's legitimate questions you have no cause for complaint if they fill in the gaps with wild imaginations.

But I'm sure that I inadvertently gave you the prize you wanted. The prosecutor can now take the role of the persecuted. Too bad it is based on a misrepresentation of what was actually said.

Posted by: Daniel | Nov 5, 2011 12:31:05 AM

big bad wolf --

Daniel's accusation is in the second to last comment on this thread from Oct. 31:

http://sentencing.typepad.com/sentencing_law_and_policy/2011/10/split-scotus-summary-reversal-in-california-shaken-baby-case-involving-sufficiency-and-habeas-review.html

It does not leave a whole lot to the imagination, and it goes beyond mere "name calling." It is an accusation of grossly immoral, vile and need I mention criminal behavior.

Posted by: Bill Otis | Nov 5, 2011 12:32:53 AM

Daniel --

"I never called you any of the things you say I did. I merely /wondered/ what the root of your sentimentality might be since you have never directly stated. Surely you can grasp the basic distinction between an assertion of fact and idle speculation."

Readers can judge for themselves whether, in writing the following of me, you were "merely wondering" or engaged in "idle speculation":

"His real problem is that he just so happens to feel more compassion for dead little white girls than live middle-aged black women. That's his prerogative or his prejudice, whichever one prefers."

Followed by this: "Far be it from me to say that your compassion for the dead little Anthony girl is driven by racism. Maybe it's driven by pedophilia as you just so happen to like little girls over mature women. Maybe your compassion is motivated by necrophilia."

In that latter passage you point-blank identify what you had earlier stated was my "comapassion for dead little white girls" as "pedophilia." You followed up in the same vein by saying, in the next sentence, that, well, no, it might be "necrophilia."

That is hardly mere speculation, but it wouldn't make any difference if it were. Posing a smear as speculation, or putting a question mark behind it to cover your ass is one of the oldest and most transparent tricks in smear journalism. No one reading what you wrote would understand it to say anything other that I must be either a pedophile or a necrophiliac or both. This is exactly as you intended.

These accusations are in-the-gutter stuff. Indeed, they're lower than the gutter; they're in the sewer. The higher-level gutter stuff is the more typical hard-core Leftist accusation of racism (which you also made) and Nazism (often seen here, but not by you, yet). And now you top it off by lying that, oh, hey, wait, you were "merely wondering" with some tossed-off "idle speculation."

I would say that it's impossible to get any lower than you have gone, but I have learned not to underestimate the low some of you people can get.

Posted by: Bill Otis | Nov 5, 2011 9:46:50 AM

Much as I would enjoy giving Bill and his popular views more attention, here is a different point to ponder about this document from the Commission. I find it curious -- and troubling -- how many 5H factors this document lists in the "both" category (i.e., "where the ground for departure could involve either an upward departure or a downward departure, depending on the circumstances"). They include: the defendant's age, mental and emotional conditions, physical condition or appearance (including physique), and military service. Really? An upward departure based on the defendant's physique or appearance, or based on his military service?

While the Commission carves out "extraordinary physical impairment" and "elderly and infirm" as "downward only" factors, its unwillingness to include others in that category is yet another example of how reluctant the Commission is to recognize the force of mitigating circumstances about the person who is being sentenced. A guidelines system that fails to distinguish defendants on such grounds no doubt contributes to the rate at which judges find it necessary to go below -- rather than within or above -- the guidelines.

Posted by: David D | Nov 5, 2011 11:27:00 AM


David D --

-- "Much as I would enjoy giving Bill and his popular views more attention..."

Your post has the virtue of at least being serious, but you just couldn't help starting with a little snark, now could you? At least you haven't called me a pedophile, yet. Why not? Do you see anything wrong with that style of argument? Yes? No?

-- While serious, your views are mistaken. Your principal flaw is in simply adopting the present Commission's view that offender characteristics should play a larger and larger role in sentencing. The SRA was written precisely to CUT DOWN on the use of such characteristics and to focus the sentence on the offense behavior, not offender characteristics.

-- "Really? An upward departure based on the defendant's physique or appearance, or based on his military service?"

That's a nice rhetorical ploy. Wanna tell us the ACTUAL NUMBER of upward departures that have been given on those bases? I believe it's zero, but if I'm wrong about that (i.e., if it's one or two or ten), I will stand to be corrected. One way or the other, you're complaining about something that you full well know happens either never or almost never.

-- As to your second paragraph: the defendant's age in general; mental and emotional conditions (presumably including the ever-reliable "depression" or whatever shows up as the newly-minted syndrome ju jour); physical condition or appearance (including physique); and military service -- all of which you would include as grounds for downward departures -- are nothing more than a litany of excuses that can be and routinely are manipulated to pave the way to a low or (if possible through defense counsel's posturing) inconsequential sentence.

What you propose is simply implementing the prototype from the Excuse Factory. If adopted, it would unravel what little is left of even the IDEA of determinate sentencing.

I'll give an example. Let's say the courts were to be able to use age generally as a downward departure factor. You don't need to be a genius to figure out that one would work:

a) Your Honor, my client is young, showed the poor judgment that comes with his age, but shouldn't have to bear the burdens of a within-range sentence, burdens that are certain to handicap him just as he starts out in the world of employment.

b) Your Honor, my client is middle-aged; is responsible for the support of three children and his aging, infirm parents; and is just starting to save the money that will enable him to take care of himself and his family in his retirement, rather than be a burden on society. Putting him away for a within-range sentence would do more harm than good.

c) Your Honor, my client is old, and any jailtime you give him could be tantamount to a life sentence or very close. Younger people have the time and energy to start again; that's not true of my client. Society recognizes that old age is a time for compassion, and I am simply asking you for that same thing here. ###

Bottom line: In defense lawyer paradise, ANY age justifies a departure, even though it's totally certain that the Commission knew in writing the ranges that defendants were either going to be young, middle-aged or old.

As I say, one need not be a genius to see how The Excuse Game gets played. I saw it for years. The difference is that, in the pre-Booker system, the Nancy Gertners of the world had a much harder time getting away with it, because the government had a realistic shot on appeal. Now they can get away with it far more easily.

Of course not all judges are the hug-a-thug type that Ms. Gertner was. Some brushed off these rote defense bar entreaties in favor of keeping faith with the SRA's original goal of consistency and reserving departures for truly exceptional cases. Being young, middle-aged or old is not what you could call "exceptional." It is, to the exact contrary, true of every human being who comes into court.

Now that's all over with. Accordingly, for the reasons that mjs and I have noted, we see more and more unprincipled leniency, combined with more and more scattershot outcomes. For the meth dealer, terrorist supporter or child rapist who benefits, this is of course seen as wonderful. For the rest of us, not so much.

Posted by: Bill Otis | Nov 5, 2011 12:35:40 PM

"Posing a smear as speculation, or putting a question mark behind it to cover your ass is one of the oldest and most transparent tricks in smear journalism. No one reading what you wrote would understand it to say anything other that I must be either a pedophile or a necrophiliac or both. This is exactly as you intended."

So you know longer possess that old fashioned virtue called "good will". I guess hanging out on this forum for so many years has changed you, and not in a good way. The Bill Otis I remember still had the capacity for respect. I can say unequivocally and without hesitation upon my word as a gentlemen and as a child of God that what you claim I intended I never did intend.

And that's the end of the story.

Posted by: Daniel | Nov 5, 2011 3:04:32 PM

Daniel --

"So you know longer possess that old fashioned virtue called 'good will'."

I retain both good will and the ability to read. Your words are what they are. I didn't write them. You did.

There's a reason you won't quote them and I will. The reason is that, once quoted, they show that you made exactly the accusation I have noted. It was in the sewer when you wrote it and it still is.

Posted by: Bill Otis | Nov 5, 2011 3:58:51 PM

Bill,

I think that Nancy Gertner still gets the title Judge (or Hon., etc.), as opposed to Ms. She retired, was not impeached, etc. I get that you didn't like her jurisprudence, but I think lawyers should show respect for the office/position of judge, even if they don't much care for the particular person occupying it in a given instance.

Posted by: Anon | Nov 5, 2011 4:26:56 PM

Anon --

Oh, so you think it's disrespectful for me to call ex-Judge Gertner Ms. Gertner, on the theory that, as you put it, "lawyers should show respect for the office/position of judge, even if they don't much care for the particular person occupying it in a given instance."

The problem is that your premise doesn't support your conclusion. Precisely because Ms. Gertner no longer occupies the office, having quit, respect for the office no longer requires that I call her something she is not, to wit, Judge Gertner.

But of course the comical thing about your post is that it simply walks past the fact that I have been called a child molestor and a necrophiliac. About that "lack of respect" -- to put it absurdly mildly -- you have zilch to say. Is that because you approve of it? Do tell.

You officiously concern yourself with what you view as a minor lapse in etiquette when talking about an ex-judge, but have nothing to say about a gross, vulgar and false accusation made againsty a fellow commenter. Do you think your selectivity is showing?

Posted by: Bill Otis | Nov 5, 2011 4:49:29 PM

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