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March 16, 2013

Thoughtful response to Judge Rakoff's call to scrap fraud guidelines

Wes Porter, who is now a law professor but was before a senior trial attorney for the fraud section of DOJ's Criminal Division, has this lengthy new commentary headlined "Sentencing Guidelines Needn't Be Scrapped."  The piece provides a point-by-point response to Judge Jed Rakoff's recent suggestion (blogged here) for the fraud guidelines to be "scrapped in their entirety" in favor of a "non-arithmetic, multi-factor test."  Here are excerpts:

U.S. District Judge Jed Rakoff of the Southern District of New York has offered an important voice on a wide range of issues in federal practice, typically from the bench.... Rakoff recently sounded off from the podium on the current state of federal sentencing. On March 7, as the keynote speaker at the 27th Annual National Institute on White Collar Crime in Las Vegas, Rakoff railed against the numerical calculations and formulaic approach that still drives criminal sentencing in federal court: the U.S. Sentencing Guidelines.

Rakoff said the guidelines represent a set of numbers "drawn from nowhere" that continue to steer most federal judges imposing criminal sentences.  He's right.  The U.S. Sentencing Commission, the congressionally created entity responsible for the guidelines, has never articulated on what basis they equate another $50,000 in loss, the next 40 victims of a scheme, or an additional 20 grams of heroin (each carries a two-level increase in "offense level points" under the guidelines).  Rakoff concluded, "Basically, my modest proposal is that they should be scrapped in their entirety."

I, like other academics and (former) federal practitioners, agree in part.... Rakoff, like many of us, seeks federal sentences that are fair, well-reasoned and consistent throughout the country....

As opposed to "scrapped" completely, the federal government should phase out the numbers and calculations in the guidelines and convert them into factors the court may consider.  District judges could consult the guidelines as specific factors to consider in individual cases.  The numbers and calculations, however, have no sustainable utility. Modern district judges do not consider available sentencing data from the decades of federal sentences preceding the guidelines (pre-1998), right?  That's because sentencing numbers from the past are not helpful to judges imposing sentence tomorrow....

Rakoff states that many in the federal judiciary blindly follow the arbitrary numbers in the guidelines.  That's true.  But removing the guidelines "in their entirety" will not necessarily result in better justified sentences.  Courts would parrot the broad sentencing platitudes and similarly arrive at arbitrary numbers.  And the additional downside would be that federal sentences would become less fair and uniform.

In contrast, rather than throw out the guidelines, if district judges were required only to consult the guidelines' numbers and calculations when they are helpful in a specific case, then judges would deviate from the guidelines more and would be more likely to better justify their sentences.  Also, the U.S. Probation Office, the arm of the federal court that prepares a pre-sentence report, could provide more numeric information to the district judge before sentencing, such as regional sentencing statistics (since 2005), state statistics of comparable offense conduct, and a digest of comparable sentences. The guidelines need not be the only numbers before the sentencing judge. The courts could weigh the additional information and incorporate it into its own reasoning.

If the goal is to make better and more robust judicial reasoning for federal sentences, then rather than forcing judges to calculate and consider unhelpful numbers, make it optional or incentivize the U.S. Probation Office, and others, to provide more numeric information to the courts to supplement those in the guidelines. ...

If we phase out the numbers and calculations of the guidelines, then the existing appellate court review and the "reasonableness" standard will become more robust and meaningful.

I hope Judge Rakoff's voice is heard by leaders in the federal government with the power to change our federal sentencing system, and that a robust discussion follows to reach the most optimal solution for the government and criminally accused.

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Comments

The portion of Mr. Porter's article that gets quoted in the excerpt does not seem to me to be representative of the entirety of Mr. Porter's views. For much of the article, Porter actually takes on Rakoff's remarks, rather than kiss Rakoff's ring.

In the part of the article that is reproduced here, the following portion struck me:

"...rather than throw out the guidelines, if district judges were required only to consult the guidelines' numbers and calculations when they are helpful in a specific case, then judges would deviate from the guidelines more and would be more likely to better justify their sentences."

How many years has this guy been living in a cave? What he says is little more than a paraphrase of existing law, to wit, Booker, Gall and Kimbrough, the most recent of which was decided in 2007.

Posted by: Bill Otis | Mar 16, 2013 11:46:33 AM

Bill, I think you misread the excerpt (or you misread Booker, Gall, Kimbrough Rita, etc.). Currently, the district court MUST calculate and consult the Guidelines in ALL cases. I believe judges would impose better reasoned sentences if they calculate and consult the Guidelines ONLY when HELPFUL to them. Booker preserved this role for the Guidelines which will make less and less sense as time passes.

The Supreme Court has not since addressed the procedural structure it forced upon the federal judiciary in Booker. The cases you reference discuss the substantive review of an imposed sentence for reasonableness. Those cases do not relate to procedure and do not have anything to do with the excerpt.

Posted by: W. Porter | Mar 18, 2013 1:22:19 PM

Prof. Porter --

"Bill, I think you misread the excerpt (or you misread Booker, Gall, Kimbrough Rita, etc.). Currently, the district court MUST calculate and consult the Guidelines in ALL cases. I believe judges would impose better reasoned sentences if they calculate and consult the Guidelines ONLY when HELPFUL to them."

Almost all the time, it's the PO, not the judge, who does the nitty-gritty calculations. And the requirement of "consultation" can mean little to nothing, as it's up to each judge to decide what "consult" means. In any event, however, judges SHOULD consult the guidelines; how else would they know if they are, or are not, helpful in a specific case?

"The Supreme Court has not since addressed the procedural structure it forced upon the federal judiciary in Booker."

That's because, for the reasons stated, the procedural "structure" is insufficiently taxing on the district judges, and too unimportant, to warrant SCOTUS'S much-in-demand time.

I don't disagree with most of your article. I would add only that Rakoff's whole schtick is to trash the guidelines because, simply out of ideology, he thinks they still promote (although they no longer require) sentences higher than he cares to impose on the NYC swindlers he sees so much of.

Posted by: Bill Otis | Mar 19, 2013 9:02:03 AM

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