Tuesday, January 31, 2012
New DOJ memo makes all illegal re-entry defendants "eligible" for fast-track departure!
Huge (and complicated) federal sentencing news has just emerged today from the US Justice Department via this new memorandum, dated January 31, 2012, from Deputy AG Cole to all United States Attorneys with the subject line of "Department Policy on Early Disposition or 'Fast-Track' Programs." Here is the start of this memo -- which I will start calling the Cole Fast-Track Memo -- and the key paragraphs explaining the significant DOJ policy change that this memo represents:
In the 1990s, United States Attorneys’ Offices and the Department developed early disposition or “fast-track” programs as a matter of prosecutorial discretion to handle increasingly large numbers of criminal immigration cases arising along the southwestern border of the United States. The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”), Pub. L. No. 108-066, 117 Stat. 650, Apr. 30, 2003, harmonized these programs with the departure provisions of the federal Sentencing Guidelines. More specifically, the PROTECT Act directed the Sentencing Commission to promulgate a statement by October 27, 2003, authorizing downward sentence departures of no more than four levels as part of an early disposition program authorized by the Attorney General and the United States Attorney. See Pub. L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003).
This memorandum sets forth the revised policy and criteria for fast-track programs....
On September 22, 2003, then-Attorney General Ashcroft issued a memorandum setting forth the criteria to be used by United States Attorneys’ offices (USAOs) seeking to establish fast-track programs. Since this memorandum was issued, the legal and operational circumstances surrounding fast-track programs have changed. Fast-track programs are no longer limited to the southwestern border districts; rather, some, but not all, non-border districts have sought and received authorization to implement fast-track programs. The existence of these programs in some, but not all, districts has generated a concern that defendants are being treated differently depending on where in the United States they are charged and sentenced.
In addition, the Sentencing Guidelines are no longer mandatory, and federal courts of appeals are divided on whether a sentencing court in a non-fast-track district may vary downwards from the Guidelines range to reflect disparities with defendants who are eligible to receive a fast-track sentencing discount. Because of this circuit conflict, USAOs in non-fast-track districts routinely face motions for variances based on fast-track programs in other districts. Courts that grant such variances are left to impose sentences that introduce additional sentencing disparities. In light of these circumstances, the Department conducted an internal review of authorized fast-track programs. After consultation with the United States Attorneys in both affected and non-affected districts, the Department is revising its fast-track policy and establishing uniform, baseline eligibility requirements for any defendant who qualifies for fast-track treatment, regardless of where that defendant is prosecuted.
This outcome is consistent with the Department’s position on the Sentencing Guidelines as a means to achieve reasonable sentencing uniformity, and with Attorney General Holder’s memorandum on charging and sentencing, which states that persons who commit similar crimes and have similar culpability should, to the extent possible, be treated similarly....
Districts prosecuting felony illegal reentry cases should implement this new policy no later than by March 1, 2012. This will provide any needed transition, especially for those districts without fast-track programs currently in place.
For those who defend illegal immigration cases, particularly in districts without an authorized fast-track programs and without circuit law blessing fast-track variances, this is huge and great news because it means that defendants there are now potentially eligible for a sentencing discount that was not previously available. However, for those who were previously able to get the benefit of some looser fast-track policies (which in some districts applied even to non-immigration cases), this memo may actually take away more than it gives.
This important new DOJ memo/policy and its potential ripple effects are too big for me to get my head around right now, in part because immigration offenses make up the largest percentage of the federal criminal docket and in part because fast-track departures have long been the most opaque facet of this docket. The latest USSC data, for example, reports that in the last fiscal year (FY 2011) there were more than 28,000 federal criminal immigration cases, among which there were more than 7,500 fast-track departures and more than 2,500 variances. The FY 2011 data also show that there were over 1,400 fast-track departures in non-immigration cases (almost all in drug trafficking cases).
So, if I fully understand the likely impact of Cole Fast-Track Memo, for FY 2013 when this new policy is fully implemented, we should expect around 10,000 fast-track departures per year in immigration cases and zero fast-track departures in all other kinds of federal criminal cases. Put another (perhaps more tangible) way, this new Cole Fast-Track Memo will mean 50+ immigration cases and 25+ drug cases each an every week will be processed (and reflected in federal sentencing data) quite differently. Of course, all of this new case processing might not mean significant changes in final sentences, though big changes in the sentencing process often ends up resulting in at least some important changes in sentencing outcomes.
In subsequent posts, I will comment more on this policy change and praise DOJ for it. Until then, I would be especially grateful to hear comments from those "on-the-ground" about what they expect this new DOJ memo/policy might mean for federal case processing and federal sentencing policy.
January 31, 2012 in Advisory Sentencing Guidelines, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack
Monday, January 09, 2012
US Sentencing Commission meeting this week to consider guideline amendments
As detailed in this official notice, "a public meeting of the [US Sentencing] Commission is scheduled for Tuesday, January 10, 2012, at 2:00 p.m." And on the official agenda is "Possible Votes to Publish Proposed Guideline Amendments and Issues for Comment."
As reported in this prior post from last summer, the USSC had a lot of high-profile matters on its list of possible priority policy issues for this year's amendment cycle, including continued reviews of the drug and kiddie porn guidelines. I am not expecting to see any blockbuster amendments being proposed this year, but one never knows. But I am inclined to predict (and fear) that the USSC may be especially timid this year because of last fall's House hearing in which the Commission got a lot of grief from congressional Republicans.
A few recent related posts:
- US Sentencing Commission provides notice of proposed 2012 priorities
- "Should the USSC publish sentencing data for individual judges?"
- Witnesses identified for House hearing on post-Booker federal sentencing
- Early reactions to the (too) quick House hearing on post-Booker sentencing
Monday, December 12, 2011
"No Change in Sight for Sentencing Guidelines"
The title of this post is the headline of this recent piece by Professor (and former federal prosecutor) Wes Porter appearing in the legal newspaper The Recorder. Here are excerpts:
The past decade has brought dramatic and progressive change to criminal sentencing in federal court. The continued utility of the United States Sentencing Commission and its sentencing guidelines miraculously survived this change. The Supreme Court, in its 2005 decision in U.S. v. Booker, rescued the guidelines from obscurity in order to continue to promote the sentencing policy goals of uniformity and proportionality. However, the next important change needed is the least likely to occur — the Sentencing Commission itself must steward the "evolution" of its guidelines.
District judges routinely reject certain provisions of the guidelines as unhelpful. The Sentencing Commission must reinvent itself by reshaping its guidelines post-Booker. To start, the commission should remove the provisions in the guidelines that courts regularly exercise their discretion to disregard. And examples of routinely disregarded guideline provisions are not hard to find.
For example, the guidelines still require district judges to calculate and consult artificially enhanced punishments based upon often uncharged — and sometimes acquitted — conduct called "relevant conduct." The guidelines still require courts to consult its recidivism (re-)classifications such as the "career offender" provision. Here, the judge has all the details of the defendant's criminal history and resulting (already severe) sentencing range, yet the guidelines require the court to consider a more severe sentence because of its recidivism label. The guidelines still require parties to litigate, and judges to find, whether conduct qualifies for other guideline-created labels, such as whether it is "serious," "violent" or "sophisticated."...
[Since] Booker, district judges generally have embraced the sentencing policy goals, consulted the guidelines and imposed "reasonable" sentences. Congress fortunately has not attempted to legislate a fix to a sentencing process that is not yet broken. The federal sentencing process has played out as intended by the Supreme Court and as well as could have been expected for the Sentencing Commission. Yet, with respect to these unhelpful guideline provisions, district judges are required to make findings about them and consult the resulting calculation, but they then may exercise their discretion to ignore the provisions when imposing a sentence....
Many provisions in the guidelines do not provide any helpful information to the court at sentencing. Only the resulting calculation is helpful to the court as an "anchoring" reference for its sentence....
There are many explanations for the lower sentences since Booker. Many believe that the guidelines were skewed too high. Others argue that district judges, particularly guideline-era judges, have gained greater comfort with sentencing discretion and accounting for individual circumstances. The explanation, however, also may reflect the district judges' exercise of their discretion to disregard unhelpful provisions in the guidelines. The sentencing commission should review these trends and remove generally disregarded provisions of the guidelines to promote continued uniformity and proportionality....
Many provisions in the guidelines involve wholly unhelpful manipulations and recategorizations of information already available to the court. In fact, certain problematic provisions skew the "anchoring" guideline calculation and mislead the district court's sentencing decision. The Sentencing Commission should endeavor to weed these provisions out of the guidelines....
The Sentencing Commission should appreciate that only a meaningful guideline calculation assists the court when exercising its discretion, and that only a meaningful anchoring reference continues to promote uniform and proportional sentences in federal court. The anchoring guideline calculation could have sustained meaning in the post-Booker sentencing process if the Sentencing Commission evaluated trends and trimmed the guidelines back. Without a dramatic change, the post-Booker sentencing process will become increasingly inefficient and largely a waste of time and resources.
Thursday, October 13, 2011
Additional written testimony submitted at House Booker hearing
At the tail end of yesterday's hearing of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," the members of the committee entered into the record submitted written testimony submitted by some public policy groups. I hope to be able to provide links to all this submitted testimony, and already available at this link is testimony authored by Testimony of Mary Price, the Vice President and General Counsel of Families Against Mandatory Minimums (FAMM). I believe a number of defense groups also submitted testimony, which I will post if/when I can find it.
UPDATE: Here is a link to testimony from the ACLU submitted to the house subcommittee.
Some recent related posts about the House hearing:
- Witnesses identified for House hearing on post-Booker federal sentencing
- Webcast of House hearing on federal sentencing after Booker available
- "Should sentences reflect the will of the public?"
- "Should the USSC publish sentencing data for individual judges?"
- Early reactions to the (too) quick House hearing on post-Booker sentencing
October 13, 2011 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, October 12, 2011
Webcast of House hearing on federal sentencing after Booker available
As reported in this prior post, this morning the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee is conducting a hearing to examine the post-Booker federal sentencing system. The hearing is titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," and a webcast can be accessed via this calender entry [Update: Written testimony from the witnesses are now linked here]. I will do a little live-blogging as I follow along.
10:04: Rep. James Sensenbrenner (R-WI) has begun the hearing and is reading a prepared statement in which he complains at great length about sentencing disparities and says that Booker, in his view, "destroyed the guidelines." He is also complaining that the US Sentencing Commission has not proposed a "Booker fix" in the last six years, and also complaining about the USSC making its new lower crack guidelines retroactive, and also complaining about the USSC's operating budget going up.
10:06: Rep. Bobby Scott (D-VA) has begun his opening statement and says that Booker was the fix, not something that needs fixing. He also is noting that the number of judicial variances from the guidelines went down in the last quarter of FY11 and that prosecutors sponsor and/or do not object to the vast majority of non-guideline sentences.
10:10: Rep. John Conyers (D-MI) says a few things off the cuff that do little more than make Rick Perry seem eloquent by comparison.
10:20: USSC Chair Judge Patti Saris (very detailed written testimony here) begins witness testimony by stressing how Supreme Court Booker caselaw has impacted federal sentencing. She says the guidelines exert a "demonstrable gravitation pull" on sentencing, but also says that USSC recognizes "weaknesses" in the advisory guideline system. Chair Saris says USSC recommends these legislative changes by Congress:
- Congress should make reasonableness review tougher, especially for non-guideline sentences
- Congress should clarify statutory directives that are in tension
- Congress should clarify and codify that guidelines should be given substantial weight
Saris also indicates that three reports are forthcoming from the USSC: one on mandatory minimums, one on child porn sentencing, and one based on the testimony offered today about the post-Booker system.
10:26: Matthew Miner, White & Case partner (written testimony here), begins his testimony by stressing disparities between sentencing outcomes in Southern and Northern districts of New York. He urges a "presumptively applicable" guideline system and recognizes that this system needs to comply with Apprendi/Blakely rights and says that it should not be too hard for juries to make special sentencing-related findings. Paraphrasing: "If we can trust juries to make findings in death penalty cases, we can trust them to find aggravating factors for guideline sentencing." As a first step, making reasonableness review tougher would be a modest reform that would "go a long way" to reducing disparity.
10:31: William Otis, Georgetown Professor Law (written testimony here), begins his testimony by stressing importance of being a nation of laws, but says sentencing is now not a system of law but "a lottery." He notes that downward departures, which "favor the criminal," are 20 times more common than upward departures. He complains that the USSC has "compounded the problem" of Booker by encouraging departures based on offender characteristics, and that it has embraced a system that is "random and watered-down."
10:36: James Felman, Kynes, Markman & Felman partner (written testimony here), begins his testimony by saying advisory sentencing system "best achieves" the goals of Sentencing Reform Act. He stresses that sentences have not gone down since Booker in fraud and child porn cases, but rather have gone up greatly since Booker. Says Mr. Otis is "incorrect" that the recent trend show continued movement away from guidelines, and he also notes that departures and variances from guidelines are modest.
I will cover follow-up Q & A in a separate post...
Monday, March 28, 2011
Eleventh Circuit weighs in on ex post facto issues after Booker
Though Booker has been the law of the federal sentencing land for more than six years now, the impact of the decision on ex post facto doctrines concerning guideline application remains unresolved in most circuits (and, it seems, under-litigated in most settings). Today, the Eleventh Circuit weighs in on this issue in US v. Wetherald, No. 09-11687 (11th Cir. March 28, 2011) (available here). Here are passages from the opinion:
This court has yet to directly address the ex post facto implications of Booker on the Guidelines.... Nevertheless, while we have not addressed the question as presented in this case, we have affirmed the underlying principles that led to the application of the Ex Post Facto Clause in our pre-Booker opinions.
Our sister circuits have split on the impact of Booker in regards to the Ex Post Facto Clause. The Seventh Circuit has taken the view that the Ex Post Facto Clause no longer poses a problem, as it applies “only to laws and regulations that bind rather than advise.” United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006)... The D.C. Circuit has squarely rejected this position, finding that the application of a harsher Guidelines range in place at sentencing presents a constitutional problem. United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008)....
Because it is consistent both with our interpretation of Supreme Court precedent and this circuit’s jurisprudence, we find the approach taken by the D.C. Circuit more compelling than that of the Seventh Circuit. It is true that the Guidelines are no longer mandatory, but neither are they without force. The simple reality of sentencing is that a “sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines.” Rita v. United States, 551 U.S. 338, 351, 127 S. Ct. 2456, 2465 (2007). As the D.C. Circuit noted, “Practically speaking, applicable Sentencing Guidelines provide a starting point or ‘anchor’ for judges and are likely to influence the sentences judges impose.” Turner, 548 F.3d at 1099. This starting point serves to cabin the potential sentence that may be imposed, and the Supreme Court has recognized that the appeals courts may presume the reasonableness of a sentence that reflects the district court’s proper application of the Sentencing Guidelines. Rita, 551 U.S. at 347, 127 S. Ct. at 2462. We also have acknowledged that “ordinarily we would expect a sentence within the Guidelines range to be reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Although we have declined to find that a sentence within the Guidelines range is reasonable per se, we have noted that the Guidelines remain “central to the sentencing process” and that “our ordinary expectation still has to be measured against the record, and the party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both that record and the factors in section 3553(a).” Id. at 787, 788...
Thus, the application of the correct Guidelines range is of critical importance, and it cannot be said that the Ex Post Facto Clause is never implicated when a more recent, harsher, set of Guidelines is employed. But it is equally clear that we need not “invalidate every sentence imposed after a Guidelines range has been increased after the date of the offense.” Ortiz, 621 F.3d at 87. Rather, we will look to the sentence as applied to determine whether the change created “‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’” Garner, 529 U.S. at 250, 120 S. Ct. at 1367 (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509, 115 S. Ct. 1597, 1603 (1995)). This standard is consistent with our precedent. As we said in Kapordelis, “While we have held that the district court must correctly calculate the Guidelines before imposing a sentence, we are not required to vacate a sentence if it is likely that, under the correctly calculated Guidelines, the district court would have imposed the same sentence.” 569 F.3d at 1314. Therefore, we will only find an Ex Post Facto Clause violation when a district judge’s selection of a Guidelines range in effect at the time of sentencing rather than that at the time of the offense results in a substantial risk of harsher punishment. This standard recognizes the ongoing importance of the Sentencing Guidelines while maintaining the district court’s broad discretion to consider relevant information in formulating an appropriate sentence.
A few related posts on post-Booker ex post issues (with ruling dates in parentheses):
- Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker (2006)
- DC Circuit produces crisp split on ex post issues after Booker (finally!!) (2008)
- Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines (2010)
- A notable district court opinion on the post-Booker ex post facto issue (2010)
Monday, June 21, 2010
Show me the role reversal when sentencing guidelines are more lenient
Anyone familiar with advocacy and debate surrounding federal sentencing knows that federal prosecutors are frequently extolling the virtue of sentencing guidelines and that defense attorenys are frequently excoriating the guidelines. Though the prosecutors claim they are fans of crime-based consistency and defenders claim they are eager for consideration of individual circumstances, what really seem to be driving the advocacy and debate is how relatively severe the sentences are set under the federal guidelines for most crimes.
Some new proof that debates over the virtues and vices of guidelines are really driven by views about sentence severity and leniency is emerging from the Show Me state these days. This local article, headlined "Missouri overhauling controversial sentencing guidelines," spotlights the role reversal in who is articulating which talking points about sentencing guidelines when the guidelines seem to be too lenient rather than too tough in most cases:
The Missouri Legislature requires the Missouri Sentencing Advisory Commission to figure averages of actual sentences every year for every possible crime, and from those to calculate ranges of "recommended sentences."
State Supreme Court Judge Michael Wolff, who heads the commission, has appointed a subcommittee to review the process. The results could be small tweaks to the 175-page sentencing guide or a complete overhaul. "The subcommittee can take a fresh look at it and make sure we're presenting information in the sentencing process that will be helpful for the judge," Wolff said.
For years, many Missouri prosecutors have called guidelines "meaningless" and "a waste of resources." They say the system is unfair because officials lump categories of crimes together, and some crimes are not charged often enough to make a meaningful calculation.
The guidelines do not take into account when a defendant is convicted of multiple crimes at the same time, critics say, and they never call for the maximum sentence allowed by law. "There is simply no way to provide for enough variables in any recommendations that make it meaningful in sentencing," said Zahnd, the Platte County prosecutor.
St. Louis Circuit Attorney Jennifer Joyce said she has been against the guidelines since getting elected more than a decade ago. "Each case needs to be evaluated on its own merits," she said. "There is no formula that is going to ensure that justice is done."
She offered the example of Tyran Hubbard, who pleaded guilty in 2007 in St. Louis Circuit Court of forcible rape and sodomy. He had raped and beaten a female college student at gunpoint in her apartment, was interrupted attempting a similar crime less than a week later and eventually was arrested lurking near apartments where many college students live. The guidelines recommended 12 years in prison. Judge Timothy J. Wilson gave Hubbard 30 years.
The guidelines do have supporters, who argue that the information empowers judges and sets realistic expectations for people not familiar with the judicial process. St. Louis Public Defender Mary Fox said that defense attorneys often highlight recommended sentences when advocating for their clients. "They're reasonable," Fox said. "They are a good starting point; then a judge has to take a look at each case individually." Fox said the guidelines took into account plenty of factors — including criminal history, education, age and employment.
Wolff, the Supreme Court judge, said data showed that 90 percent of Missouri sentences end up within the recommended range. He said only 5 percent of defendants were sent to prison when the guidelines recommended probation.
"This is just a piece of information about what judges are doing in the whole, not what ought to happen in any given cases," Wolff said. "We make it clear that the judge is free to give a more harsh or lenient sentence within the statutes." He added, "You can argue from any individual case that a recommendation seems too lenient."
James McConnell, the prosecutor in Shelby County, who will serve on the subcommittee, said the debate usually came over violent or sex crimes. He said there was not much disagreement about sentences for property crimes. Some lawmakers have proposed eliminating recommendations for the most serious crimes, McConnell said. "Those are the ones in which most of the time prosecutors don't think they make sense," he explained.
As federal sentencing fans know, it is the prosecutors in the federal system who generally argue that the federal guidelines provide a reasonable sentencing starting point, and it is the defense attorney who are heard to complain that no formula can ensure sentencing justice. But, in Missouri, since the starting points provided by the state advisory guidelines are more to the defense's liking, we instead get the roles reversed and the state defenders are defending guidelines against (over-stated) attacks by state prosecutors.
Thursday, June 03, 2010
Debate across the pond on sentencing and sentencing guidelines
A helpful reader sent me this interesting story from The Times, which is headlined "Sentencing Council: judges told that justice is safe from ‘tramline’ sentencing." The piece is intrguing not only because it details the recent history of sentencing reform efforts in the UK, but also because it echoes the recent history and debate over US federal sentencing law and policy. Here is how the piece begins:
It must be the toughest judicial brief going: tasked with overseeing sentencing in England and Wales, when prisons are full to bursting and there is no money to build any more. But Lord Justice Leveson is firm about one thing: “I have not considered this as a brief to produce guidelines that are going to reduce the prison population.”
Leveson, 60, a senior Court of Appeal judge, took on the role in April of chairing the new Sentencing Council. It has a far-reaching remit to issue guidelines and monitor the impact and cost of sentencing changes. But he insists: “There is nothing in the legislation that requires us to have regard to resources — although ... we must spell out the resource implications of changes in sentencing practice, of new guidelines or legislation. But we will still do what we think is right.”
The council of eight judges and six lay members will have a key input into government penal policy. Ironically, the original plan was quite the opposite: politicians hoped to secure some control over judges’ sentencing practice.
It was concern about rising prison numbers that prompted ministers to set up an inquiry into how they could secure a better match of supply and demand in the prison system. The report, from Lord Carter of Coles, led to a working group under Lord Justice Gage being asked to examine the American “grid” model — a tick-box approach that would have tightly fettered judicial discretion. The idea was firmly rejected.
Instead, the Sentencing Council was proposed, to replace the old Sentencing Guidelines Council and Sentencing Advisory Panel. But the change is not just one of name and streamlining. For a start, judges “must follow” the sentencing guidelines, not just “take account of” as before.
Judges bristled. How can this be squared with their independence and freedom to tailor sentences to the crime? Leveson insists that it can; and that judges are now sanguine about the change. “Guidelines are not tramlines. The Coroners and Justice Act 2009 gives judges the freedom not to follow the guidelines where that is not in the interests of justice.”
What, then, will the new council achieve? “I want to see a consistent approach to sentences — from Bristol to Birmingham, Bolton to Basildon. I want people to feel confident with the courts system by providing clear information on how people are sentenced.”
Judges do not always make clear that the guideline is the default starting point, he says. That needed spelling out; and better reporting of the reasons for a sentence by the media. To this end, he plans to gather data in the shape of feedback from judges. A pilot scheme has started in four Crown Court centres. The task is huge — the council has economists and statisticians but the prize, in terms of future targeting of resources, “could be substantial”.
I think I may have to make "guidelines are not tramlines" my new sentencing reform mantra.
Thursday, May 27, 2010
Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelinesIn an interesting and thoughtful new split ruling, the majority of a panel of the Fourth Circuit has today ruled in US v. Lewis, No. 09-4343 (4th Cir. March 27, 2010) (available here), that the Ex Post Facto Clause still limits the authority of district courts to rely on newer, more severe, now-advisory federal sentencing guidelines. Here is how this important new opinion begins:
Derrick E. Lewis appeals from his conviction and sentence in the Eastern District of Virginia for unlawful possession of a firearm by a convicted felon, in contravention of 18 U.S.C. § 922(g)(1). After Lewis committed the offense of conviction, but before he was sentenced, the Sentencing Guidelines were amended to include a higher base offense level for the offense, resulting in an advisory Guidelines range that was nearly double that calculated under the Guidelines in effect at the time of his offense. After determining that application of the amended 2008 Guidelines would contravene the Ex Post Facto Clause of the Constitution, the district court applied the 2005 Guidelines in effect at the time of the offense of conviction. See United States v. Lewis, 603 F. Supp. 2d 874 (E.D. Va. 2009). The Government has appealed from the court’s Ex Post Facto Clause ruling. Lewis has cross-appealed, contending that the court erred in denying his motion to suppress the firearm underlying his conviction. As explained below, we reject both contentions and affirm.
And here is how the Lewis opinion frames the debate on this issue and explains its basic ruling:
In 2005, however, the Booker decision of the Supreme Court rendered the Guidelines advisory. See United States v. Booker, 543 U.S. 220, 245 (2005). Post-Booker, the courts of appeals have disagreed on whether the Ex Post Facto Clause prohibits a sentencing court from retroactively applying severity-enhancing Guidelines amendments. In United States v. Turner, the D.C. Circuit recognized this disagreement and ruled that such retroactive application contravenes the Ex Post Facto Clause. See 548 F.3d 1094, 1100 (D.C. Cir. 2008). Two years earlier, the Seventh Circuit had concluded, in United States v. Demaree, that the Ex Post Facto Clause does not bar retroactive application of severity-increasing Guidelines amendments. See459 F.3d 791, 795 (7th Cir. 2006). Although we have previously recognized this circuit split, we have not had occasion to rule on the issue. See, e.g., United States v. Rooks, 596 F.3d 204, 214 n.11 (4th Cir. 2010).
Because the Guidelines represent the crucial "starting point," as well as the "initial benchmark," for the regimented sentencing process employed by the sentencing courts within this Circuit, see Gall v. United States, 552 U.S. 38, 49 (2007), an increased advisory Guidelines range poses a significant risk that a defendant will be subject to increased punishment. Accordingly, as explained below, we join the D.C. Circuit in concluding — as did the district court — that the retroactive application of severity-enhancing Guidelines amendments contravenes the Ex Post Facto Clause. See Turner, 548 F.3d at 1100.
Intriguingly, Chief District Judge Joseph Goodwin dissents from this part of the panel's ruling, and his thoughtful dissenting opinion starts this way:
Although I agree with my colleagues on the motion to suppress issue, I cannot join the ex post facto aspect of the majority opinion. The majority holds that the retroactive application of a revised Sentencing Guideline range that results in a higher recommended sentence violates the Constitution’s ex post facto prohibition. In so doing, the majority ignores the reality that the Guidelines lack legal force. It also creates a constitutional contradiction by ignoring the Sixth Amendment implications of treating the Guidelines as anything more than advisory. Therefore, I respectfully dissent.
If the government decides to appeal this ruling to the Supreme Court (and I am not sure that it will, at least not until after perhaps trying to take this matter en banc), I think a cert grant would be pretty likely.
Wednesday, May 26, 2010
Interesting discussion of the rule of lenity's application to advisory guidelinesA helpful reader alerted me to a very interesting concurring opinion authored by Judge Pryor (joined by Judge Fay) in the Eleventh Circuit's decision in US v. Wright, No. 09-12685 (11th Cir. May 26, 2010) (available here). The decision talks through the interplay of the rule of lenity and guideline application. Here is how Judge Pyror's opinion gets started:
I concur fully in the majority opinion. I agree that we have no occasion to apply the rule of lenity in this appeal because section 4A1.2(k)(1) of the Sentencing Guidelines is unambiguous, but I write separately to explain why I doubt the rule of lenity should play any role in our interpretation of advisory Sentencing Guidelines.
Monday, February 02, 2009
Departure patterns as a guide to whether guidelines are balanced
This effective local article about judicial departure rates from Virginia's state sentencing guidelines provides a terrific reminder about what judicial decisions can tell us about balances (and imbalances) in an advisory sentencing system. Here are some statistical snippets from the article:
According to the Virginia Criminal Sentencing Commission’s 2008 annual report, judges in the 16th Circuit sentenced criminals in felony cases within sentencing guidelines 76.9 percent of the time. They strayed from sentencing guidelines for more serious consequences in 13.7 percent of 642 cases while opting for lighter sentences in 9.3 percent. In fiscal 2007, 16th Circuit judges followed the guidelines for 80.6 percent of 568 total cases. The judges in the circuit ... chose more severe sentences 8.8 percent of the time and lighter sentences 10.6 percent of the time.... The most recent commission report also detailed statewide compliance to sentencing guidelines in certain crimes. Judges across Virginia stuck to sentencing guidelines 63.4 percent of the time in 232 total homicide cases, choosing more serious sentences 21.6 percent of the time and less severe sentences 15.1 percent of the time. Morris said he wasn’t surprised that judges strayed from the guidelines more often in violent crimes. “That is where judges are really considering punishment and removing the person from the community for a lengthy period of time,” Morris said. Of the 551 sexual assault cases in fiscal 2008, 20.5 percent of sentences were higher than the guidelines suggested, while 13.2 percent were lower than the recommendation. However, 22.8 percent of 202 total rape cases had less severe sentences, while 8.9 percent of sentences were more severe. Officials explained that disparity might have to do with the number of charges that falls into the sexual assault category, potential factual issues in rape cases and certain factors, such as age, that can worsen the recommended sentences. In fiscal 2008, judges stuck to the guidelines more often in fraud, high abuse-risk drug and larceny cases, with 84.5 percent, 83.3 percent and 82.8 percent in compliance, respectively.
According to the Virginia Criminal Sentencing Commission’s 2008 annual report, judges in the 16th Circuit sentenced criminals in felony cases within sentencing guidelines 76.9 percent of the time. They strayed from sentencing guidelines for more serious consequences in 13.7 percent of 642 cases while opting for lighter sentences in 9.3 percent.
In fiscal 2007, 16th Circuit judges followed the guidelines for 80.6 percent of 568 total cases. The judges in the circuit ... chose more severe sentences 8.8 percent of the time and lighter sentences 10.6 percent of the time....
The most recent commission report also detailed statewide compliance to sentencing guidelines in certain crimes. Judges across Virginia stuck to sentencing guidelines 63.4 percent of the time in 232 total homicide cases, choosing more serious sentences 21.6 percent of the time and less severe sentences 15.1 percent of the time.
Morris said he wasn’t surprised that judges strayed from the guidelines more often in violent crimes. “That is where judges are really considering punishment and removing the person from the community for a lengthy period of time,” Morris said.
Of the 551 sexual assault cases in fiscal 2008, 20.5 percent of sentences were higher than the guidelines suggested, while 13.2 percent were lower than the recommendation. However, 22.8 percent of 202 total rape cases had less severe sentences, while 8.9 percent of sentences were more severe. Officials explained that disparity might have to do with the number of charges that falls into the sexual assault category, potential factual issues in rape cases and certain factors, such as age, that can worsen the recommended sentences.
In fiscal 2008, judges stuck to the guidelines more often in fraud, high abuse-risk drug and larceny cases, with 84.5 percent, 83.3 percent and 82.8 percent in compliance, respectively.
These data (as well as those reflected in the chart reprinted here) showcase that Virginia state judges are, generally speaking, as likely to find a guideline-recommended sentence to be too lenient as too harsh. In sharp contrast, in the federal system, sentencing judges are roughly 10 times more likely to sentence below the guidelines than above the guidelines. (In drug trafficking case, this ratio goes even higher; judges conclude that the federal guideline range is too harsh roughly 20 times more often than they conclude the federal guideline range is too lenient.)
Though a perfectly equal amount of upward and downward departures does not necessarily shows that a guideline system is perfectly balanced, a departure pattern like what we see in Virginia seems much sounder than what we see in the federal system. And, what is especially troubling is that, both before and after Booker, despite departure patterns suggesting the federal guidelines are already way too harsh, the vast majority of US Sentencing Commission guideline amendments call for making the guidelines even harsher.
Tuesday, November 06, 2007
Crunching the numbers on a presumption of reasonablenss
I was very pleased to learn of this new article on SSRN, which examines empirically the impact of the presumption of reasonableness for within-guideline sentences. The article by Alex Robbins and Lynda Lao is entitled "The Effect of Presumptions: An Empirical Examination of Inter-Circuit Sentencing Disparities After United States v. Booker," and here is the full abstract:
In the two years since United States v. Booker, the circuits have divided over how to use the Federal Criminal Sentencing Guidelines when reviewing sentences imposed by district courts. Seven circuits have held that a sentence within the Guidelines range is entitled to a presumption of reasonableness on appeal; five have held that it is not. Although the Supreme Court's recent holding in Rita v. United States allows the courts of appeals to adopt a presumption of reasonableness for within-Guidelines sentences, it does not require them to, and so the circuit split remains.
Using this circuit split as a natural experiment, we undertake what we believe to be the first statistically robust analysis of the effect of a presumption of reasonableness on sentences imposed at the federal district court level. Specifically, using 145,047 individual-level observations recorded by the United States Sentencing Commission (comprising all recorded federal sentences in all twelve circuits for a one-year period beginning in November 2004 and ending in October 2006), we perform a multivariate regression analysis to determine how a circuit's adoption or rejection of a presumption of reasonableness for within-Guidelines sentences affects the frequency with which district courts impose below-Guidelines sentences. We find that a circuit's adoption of a presumption of reasonableness decreases the frequency of below-Guidelines sentences by less than one percent, although this result is statistically significant.
Our results do not, however, robustly support the inverse hypothesis that a circuit's rejection of a presumption of reasonableness increases the frequency of below-Guidelines sentences. The effect of such a rejection is insignificant when we control for circuit-specific fixed effects, and appears to be driven almost entirely by the particular behavior of the Second Circuit. Finally, we are similarly unable to find robust empirical support for the hypothesis that intercircuit differences in sentencing after Booker can be explained simply by a circuit's underlying characteristics.
November 6, 2007 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Rita reactions, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Friday, March 31, 2006
Alabama legislature approves voluntary guidelines
As detailed in this article, after a very long reform process, the "Alabama Legislature gave final approval Thursday to three bills supported by Gov. Bob Riley to reform Alabama's sentencing procedures and help ease overcrowding in state prisons." Specifically, the "key bill in the package would provide judges with a voluntary list of recommended sentences for various crimes." I found this passage in the article especially interesting:
The sponsor of the legislation, Rep. Marcel Black, D-Tuscumbia, said the purpose of the bill setting voluntary sentencing guidelines was so that a person convicted of committing a crime in one part of the state will receive a similar punishment as a person convicted of the same crime in a different area. But Black said judges will still have the option to give a lenient sentence or a harsher sentence when needed. "Every theft case is not the same. Every murder case is not the same," Black said.
Perhaps we might encourage state representative Black to take a meeting with federal representative Sensenbrenner (who apparently does not quite see the virtues of judicial discretion).
Wednesday, January 18, 2006
Alabama sentencing reform moving forward
As detailed in articles here and here, the "Alabama House passed eight bills Tuesday in a package supported by Gov. Bob Riley to reform Alabama's sentencing procedures and help ease overcrowding in state prisons." A basic list of the reforms in these bills is available here. The Alabama Sentencing Commission, which recommended these bills, has a lot more details about these reforms at this webpage and in this legislative pamphlet.
One bill provides for the adoption of voluntary sentencing guidelines. Here is how the Alabama Sentencing Commission describes the bill in its legislative pamphlet:
In compliance with the directives included in the Sentencing Reform Act of 2003, this bill proposes adoption of voluntary sentencing standards for 26 felony offenses. These sentencing recommendations are historically based voluntary, non-appealable sentence recommendations developed for personal, property and drug crimes, representing 87% of all felony convictions and sentences imposed in Alabama over a five year period. The recommended sentence ranges and dispositions for the covered offenses are in lieu of the wider ranges under existing statutory law and provide uniform sentencing recommendations for trial court judges in sentencing convicted felons. These standards, which are voluntary, address both the length of sentences and the disposition of the offender (probation, intermediate alternative or prison).
Notably, proposals for the adoption of voluntary guidelines have been making the rounds for a few year, but Alabama prison overcrowding crisis seems to have finally pushed the reform forward. A few months ago, a state Task Force on Prison Crowding released this report which suggested enactment of these guidelines was key to dealing with the prison overcrowding problem.
Thursday, December 15, 2005
Notable new paper on voluntary guidelines
Thanks to this post at the Legal Theory Blog, I see an interesting new paper at SSRN about state sentencing systems and voluntary guidelines (topics which are also addressed in the latest FSR issue about Blakely in the states). Authored by John Pfaff, and available for download here, the new paper is entitled "The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines." Here is the abstract:
This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v Washington.
In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation. For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 28% for violent crimes and 17% for property crimes. By comparison, the analogous results for presumptive guidelines are a 48% drop for violent crimes and a 45% drop for property crimes. For the use of impermissible factors, the results are more ambiguous. Presumptive guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing; due to limitations in the data used for this project, however, it is difficult to draw clear inferences about the welfare implications of the changes with regards to the use of impermissible factors.
Furthermore, voluntary guidelines appear to avoid some of the problems associated with other alternatives, such as sentencing juries and the increased use of mandatory minimums. In short, voluntary guidelines appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely.
Tuesday, July 05, 2005
Problems in Indiana with advisory fix
This morning brings this interesting AP story from Indiana concerning the state's decision to respond legislatively to Blakely issues by converting its mandatory sentencing system into an advisory system. In the piece, Prof. Joel Schumm is quoted calling "the new law, which took effect in April, 'a pretty enormous setback' that undid decades of work toward making sentences fairer." And:
The new law could expose judges to extreme pressure to impose harsher sentences in line with the wishes of victims and their families, Schumm said. "To be honest with you, I think it could mean a lot more appeals and a lot longer sentences," he said.
The article also quotes lawyer Michael Ausbrook, of INCourts fame. The piece is headlined "Sentencing law may increase appeals; Change is called 'enormous setback.'" But for sentencing insiders who would understand the references, a more fitting title might be, "States should be wary of fixing Blakely with Booker."
Sunday, April 24, 2005
I wonder how Virginia would assess Martha Stewart's risk
Two interesting news items today from east coast posts almost cry out to be merged: this story from the New York Post reports that the "feds are investigating whether former jailbird Martha Stewart violated the rules of her house arrest when she attended a Time magazine gala last week," while this story from the Washington Post reports that Virginia is set to expand the use of its controversial "risk assessment" instrument to "help figure out whether criminals who violate the terms of their probation should be sent back to prison for years or diverted to lower-security detention centers for several months."
Reading the stories in sequence led me to wonder what Martha might score on Virginia's risk assessment measures. My guess is that all white-collar offenders do pretty well within Virginia's risk assessment instrument (and I think this sample worksheet from Virginia might be similar to what would be used to "score" Martha).
Needless to say, the NY Post treats the Martha story with levity (quoting comedian Jon Stewart), while the Wash Post treats the Virginia story with gravitas (quoting Virginia sentencing commission director Rick Kern). Meanwhile, Ellen Podgor over at the White Collar Crime Prof Blog in this post raises some interesting questions about the Martha story.
April 24, 2005 in Advisory Sentencing Guidelines, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, February 16, 2005
Topical highlights from Day 2 of the USSC hearings
Rather than provide testimony highlights as I did here for USSC hearing day 1, I thought it might be more beneficial to spotlight some of the biggest topical issues developed during the second day and throughout all the hearings. Though I urge review of the testimony linked here for a more thorough account of issued covered, here are just a few of the topics still spinning in my mind after the hearings.
1. The collection and presentation of post-Booker data: As stressed in this prior post, everyone is focused on the importance of district courts providing, and the USSC effectively analyzing, post-Booker data. But a number of Commissioners astutely asked about how the data ought to be parsed. Especially important, as a number of folks noted, was how cases involving a variance from the guidelines are coded, assessed and publically discussed.
2. The availability and nature of appeals: A few witnesses, including Robert McCampbell representing DOJ, suggested that the appellate review provisions of 3742 are still to be read to mean that sentences within the guidelines after Booker are not subject to appeal for general reasonableness (though, of course, the guideline calculations could still be challenged for all the "old" reasons). This important and interesting issue of when appeals are even authorized will, I suspect, need to be litigated in the months ahead. Relatedly, all the state sentencing witnesses noted that no jurisdiction with true advisory guidelines has any track-record with appellate review. Thus, the federal guidelines are in uncharted territory with advisory guidelines with appeals, and everyone at the hearings could only begin to suggest what reasonableness review will come to look like.
3. The substantial substantial assistance problem: A number of folks addressed how 5K1.1 departures will operate in an advisory system, and McCampbell suggested that the loss of the leverage which facilitated truly effective cooperation in a mandatory system was DOJ's biggest worry. More than a few witnesses suggested different small ways to address try to address this matter, and I think it will be an area to be watching very closely in the weeks ahead.
February 16, 2005 in Advisory Sentencing Guidelines, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, January 18, 2005
Taking stock of advisory guideline systems
With Booker making advisory guidelines a reality in the federal system, a careful examination of our modern experiences with advisory systems are in order. As detailed in this post, the Federal Sentencing Reporter will soon be publishing a timely article entitled on "Advisory Guidelines in the Post-Blakely Era," authored by the executive directors of two sentencing commissions involved in the development of advisory guideline system. Relatedly, Adam Liptak has this thoughtful article today in the New York Times examining the operation of advisory guideline systems in the states.
In addition, because I am about to do a Chicago public radio show with University of Chicago Professor Albert W. Alschuler, I was reminded that Professor Alschuler was among the first to forcefully advocate advisory guidelines as the right federal response to Blakely (the original draft of Al's article is available here). Reviewing that pre-Booker article this morning, which is To Sever or not to Sever? Why Blakely Requires Action by Congress, 17 Federal Sentencing Reporter 11 (Oct 2004), I was terrifically amused by this wonderfully ironic paragraph in its introduction:
This commentary proposes a sentencing system that courts could not implement without Congressional action — one in which judges would be guided but not bound by sentencing guidelines, in which they would impose determinate sentences not subject to adjustment by a parole board, and in which their sentences would be subject to appellate review for reasonableness and proportionality. Id. at 11 (emphasis added).
Obviously, though Al might be exactly right about the value of advisory guidelines, he was apparently wrong, thanks to Justice Breyer and the remedial majority, that his proposed solution could not be implemented witout Congressional action.