Sentencing Law and Policy

Playing the "blame game" for increased sentencing disparities after Booker

With the upcoming five-year anniversary of the Supreme Court's decision in Booker and a new Wall Street Journal piece discussing the enduring challenge of balancing individual and equal justice, I have been thinking lately about increased federal sentencing disparities.  Here are some of my early thoughts:

1.  As was rightly expected, there seems to be increased disparity in sentencing outcomes after Booker.  With the guidelines advisory (but with the open-ended 3553(a) standards mandatory), it was all but inevitable that a diverse set of district judges nationwide, who are imposing sentences while subject to a diverse sets of legal, cultural and practical influences in diverse settings, were likely to impose a more diverse set of sentencing outcomes.

2.  Increased sentencing disparities after Booker seem most evident where the now-advisory sentencing guidelines are least sound, such as in low-level crack cases, child porn downloading cases and high-loss, white-collar fraud cases.  Especially when first offenders in these cases are facing very high guideline ranges, many sentencing judges (though still not most) believe that 3553(a) demands imposing non-guideline sentences.

3.  Increased sentencing disparities after Booker might be reducing overall sentencing injustice in the federal sentencing system given the injustice of certain guidelines.  As the US Sentencing Commission's own studies suggest, having all crack offenders sentenced to often unjust sentences before Booker may be much worse that having some (but not all) crack offenders now getting different and sometimes more just sentences after Booker.

4.  Federal district judges probably merit the least blame for increased sentencing disparities after Booker, as they must in each case try to balance the mandates of the open-ended 3553(a) standards without the help of sound sentencing guidelines in many cases.  Indeed, playing the "blame game," here is how I would roughly prioritize who merits the most "blame" for increased sentencing disparities after Booker:

A.  Congress --- for failing to seek to reform or revise the entire system after Booker

B.  US Sentencing Commission --- for failing to revise the most unsound guidelines

C.  SCOTUS and the Circuits --- for failing to give reasonableness review any substantive content

D.  Justice Department --- for failing to urge Congress or the USSC to do better

Of course, there is additional "blame" to go around for increased sentencing disparities after Booker, as individual prosecutors and defense attorney have surely been "disparate" in their sentencing advocacy over the past five years.  Similarly, there is surely increased post-Booker disparity in sentencing procedures adopted by individual US Attorneys' offices and probation offices, and differing procedures surely contributes to disparate outcomes.

But as suggested above, I think it unfair (and not especially productive) to blame sentencing actors with case-specific sentencing responsibilities for increased sentencing disparities after Booker.  These actors will (and necessarily should) principally focus on achieving individualized justice in the individual cases they address each day.  If there is a broad concern that system-wide justice is not being well-served as we approach Booker's five-year anniversary, the blame should be principally placed on the system-wide actors who've mostly produced and perpetuated the post-Booker system-wide framework.

As Booker approaches five, the individual/equal justice debate continues on

Remarkably, in just a couple of months, we can mark the five-year anniversary of the Supreme Court's decision in Booker to transform the federal sentencing guidelines from legal mandates to advisory rules.  The the debates over federal sentencing rules and results have taken many forms over these last five years, this new article from the Wall Street Journal spotlights that the most enduring issue remains whether Booker strikes a sound balance between the competing goals of individual justice and equal justice. 

The new WSJ piece is headlined "Looser Rules on Sentencing Stir Concerns About Equity," and it gives particular attention to potentially disparate white-collar sentencing outcomes after Booker. Here are excerpts:

[L]andmark Supreme Court cases in 2005 and 2007 ... gave federal judges more freedom to depart from sentencing guidelines. But this relatively new latitude has caused a thorny problem to creep back into the federal system: Defendants can receive wildly different sentences for similar crimes.

"There is preliminary evidence of greater inconsistencies between judges, who have the freedom to draw upon their own political, policy and punishment values when they make sentencing decisions," says Ryan Scott, a law professor at Indiana University who has studied sentencing behavior by federal judges....

Proponents of greater sentencing discretion say past rules were too inflexible, preventing judges from using their expertise to fit the punishment to the crime.  But others warn that the new freedom risks a return to the problem that prompted Congress to call for uniform sentencing guidelines in the late 1980s: that defendants' fates will be subject largely to the whims of individual judges.

Since sentencing parameters were relaxed, early indications suggest that judges on balance are using their discretion to give longer white-collar sentences.  Average prison sentences for fraud increased to about two years in the nine months ended in June 2009.  That is six months longer than fraud sentences for the same period five years earlier, according to data from the U.S. Sentencing Commission, a federal agency.

But in some cases, judges have handed down much lower sentences than would have been required by law just a few years ago....   The new level of unpredictability has drawn the ire of some prosecutors and defense attorneys worried about inequitable sentencing.

For white-collar cases in particular, "we're back to a pre-guidelines era," says Frank Bowman, a law professor at the University of Missouri who helped shape federal sentencing guidelines in the mid-1990s.  "You see the most disparity and the most potential for disparity, and I think that's a bad thing."

Alan Vinegrad, a former U.S. attorney in Brooklyn who is now a defense lawyer, counters that being able to customize sentences can increase fairness in the judicial process, even though there is more uncertainty in the courtroom.  "To me," he says, "that risk is tolerable."

Concern that the relaxed guidelines are creating unfair disparities appears to be growing.  In June, U.S. Attorney General Eric Holder said in a speech that it was important to assess whether recent sentencing practices "show an increase in unwarranted sentencing disparities" based on "differences in judicial philosophy among judges working in the same courthouse."

"Is Colorado’s U.S. Bench Embracing Sentencing Responsibility?"

The title of this post is what would have been a praiseworthy headline for this local article from the publication Law Week Colorado.  Instead, as a click through will show, the publication went with the more provocative headline of "Is Colorado’s U.S. Bench Ignoring Sentencing Guides?". The article is a bit more balanced that the headline, and here are snippets:

Have some of Colorado’s federal trial judges turned their backs on sentencing guidelines? Colorado’s top federal prosecutor thinks so.  At least one judge and the state’s federal public defender disagree.

Testifying before the U.S. Sentencing Commission at a public hearing in Denver last week, David Gaouette, U.S. attorney for Colorado, said that certain unnamed district judges have routinely disregarded sentencing guidelines in the four years since the U.S. Supreme Court’s Booker decision. Though guidelines are no longer mandatory, judges are still supposed to consult them before issuing sentences.

“The advisory nature of the sentencing guidelines, post-Booker, has resulted in greater inconsistencies in sentences among our judges,” Gaouette wrote in testimony he submitted to the commission.   He said he was particularly concerned that the departures from the guidelines result in more lenient sentences. “Of the six federal judges in our district, three follow the guidelines, one sometimes does, and two do not use the guidelines.  One judge has told one of my AUSAs [assistant U.S. attorneys] that the sentencing guidelines are arbitrary and would not be followed.”

Gaouette declined to identify the judges he thought ignored the guidelines, or to specify which judges he counted among the six he mentioned.  Colorado has five federal judges, who have mixed criminal and civil dockets, and five senior judges, who are allowed to exclude criminal or civil cases if they choose.

Commission Chair Ricardo Hinojosa seemed surprised by Gaouette’s claims. “I have yet to hear of judges just coming out on the bench and saying it’s not going to be a guideline sentence,” Hinojosa said.  Gaouette replied that he drew his conclusions either from observing judges’ sentencing habits or from remarks judges made off the record.

John Kane, senior judge on Colorado’s U.S. District Court, and Raymond Moore, federal public defender for Colorado and Wyoming, said the advisory guideline system is not creating the unwarranted sentencing disparities Gaouette alleges.  Colorado is not experiencing a case of “judges gone wild,” Moore told the panel.

Kane said all of Colorado’s federal judges follow the Supreme Court’s ruling that the guidelines must be considered first when formulating sentences. Regarding Gaouette’s remarks about judges refusing to follow the guidelines, Kane told Law Week Colorado, “I don’t believe that statement is true. It’s not accurate.”

Should the ALI and other academics actively urge SCOTUS to reverse Harris in O'Brien?

I keep thinking about the suggestion by Professor Kevin Reitz, noted in this post, that the Harris mandatory minimum limit on the Apprendi Sixth Amendment rule might be subject to reversal in O'Brien.  And the more I think, the more I get drawn to the idea that everyone who views Harris as a serious impediment to sound modern sentencing reforms ought to be actively urging Harris to be overruled in O'Brien.  I say this because I genuinely believe that, if lots of thoughtful folks make a strong case that Harris is now harmful in light of the subsequent Blakely and Booker jurisprudence, few Justices may be eager to defend and uphold Harris. 

Let me unpack this instinct by first highlighting that Justice Stevens and Justice Thomas seem likely and eager to embrace calls to overrule Harris.  Both Justices have expressed interest in getting rid of undue limits on the Apprendi doctrine and neither seems too moved by stare decisis concerns in this setting.  The fact that both Justices Stevens and Thomas may be deeply interested in getting rid of Harris seems quite significant (and Justice Ginsburg has almost always voted with Justice Stevens in this line of cases).

Also significant, especially for the vote of Justice Breyer (and maybe also for Justice Kennedy), is that the subsequent Blakely and Booker rulings largely brought down what Harris sought to preserve: binding guideline systems based on judicial fact-finding.  After Blakely and Booker, the virtues of Harris are harder to see, while the vices remain on display.

In addition, the Recuenco decision declares Apprendi-Blakely errors subject to harmless error analysis.  Recuenco can and should greatly reduce the fear that overruling Harris would have all sorts of negative consequences: in the vast majority of old cases, any "O'Brien error" in the application of a mandatory minimum sentence would likely be found to be harmless.

Finally, I think all the new Justices could be moved by arguments that preserving Harris is bad for modern sentencing reform as long as Apprendi and Blakely and Booker all remain good law.  All the new Justices likely have a sense of the ugliness of modern Sixth Amendment jurisprudence and none have played a direct role in creating it.  Consequently, they might readily be drawn to suggestions that the Court would be helpful and respectful to states and officials involved in sentencing reforms if they now did away with the Harris exception to Apprendi.

Ironically, these thoughts all take me back to Professor Kevin Reitz, who is the reporter on the ALI's on-going revision of the sentencing provisions of the Model Penal Code.  If he could get the ALI and others to make the case that no sentencing code can be truly model with Harris still on the books, there may be even more than five votes to overrule Harris in O'Brien. 

Some related recent posts:

• Might the Harris limit on Apprendi be at risk with O'Brien cert grant?
• Might Apprendi be at risk with O'Brien cert grant?

In the Big Easy to discuss not-so-easy sentencing topics

I am in New Orleans today to talk about departures and variances at the US Sentencing Commission's National Annual Seminar.  I expect blogging will be light the rest of today, but I am hoping events at this conference will inspire some new post-Booker insights for future posts.

Different perspectives on federal sentencing from different vantage points

As noted in prior posts here and here, this past week the US Sentencing Commission held a public hearing at Stanford Law School.  This USSC webpage showing the agenda and the list of impressive persons who testified now also has links to some of the submitted written testimony. 

Though I am still reading through some of this written testimony, I was struck — though I suppose not really surprised) — by the different points of emphasis in the testimony of Ninth Circuit Judge Richard Tallman and the testimony of Hawaii District Judge Susan Oki Mollway.  Judge Tallman's testimony starts and ends with concerns about sentencing disparities, and he even states that, after Booker, "perhaps judges now have too much discretion."  In sharp contrast, Judge Mollway's testimony is focused on guidelines that seem unduly severe and the fact that mandatory minimum sentences limit judicial discretion and "are frequently unreasonable."

This contrast in post-Booker assessments surely reflects the different institutional perspectives of these judges.  On appeal, circuit judges often hear complaints about sentences that appear disparate and they have an obligation to try to rein in sentencing outliers through reasonableness review; at initial sentencing, district judges often hear complaints about guidelines that seem to harsh and they have an obligation to impose a sentence "sufficient, but not greater than necessary" under 3553(a).

Critically, both comments highlight the central importance of sounder federal guidelines even though they are now advisory.  If the federal sentencing guidelines were to more consistently set sentencing ranges at reasonable and just levels, district judges would more often impose sentences within the guidelines and circuit judges would not have so many outliers to have to try to rein in.

CLR note on co-defendant disparity after Booker

Now available on-line is this new Columbia Law Review note titled "Equal Justice Under Law: Post-Booker, Should Federal Judges Be Able to Depart from the Federal Sentencing Guidelines to Remedy Disparity Between Codefendants' Sentences?".  Here is the piece's abstract:

In the 2005 case of United States v. Booker, the Supreme Court held that the Federal Sentencing Guidelines were merely advisory and therefore no longer binding on trial judges.  Since then, some judges have based departures from the Guidelines on the finding that the disparity between codefendants’ sentences is unwarranted.  Although basing a departure on this consideration was universally impermissible before Booker, most circuits have now held that consideration of codefendant disparity is a permissible basis for departure.  However, some circuits have held that this disparity is still not a justification for departure or that departures may not be based on codefendant disparity in certain types of cases.  This Note argues that Booker and subsequent Supreme Court decisions permit trial judges to remedy disparity between codefendants’ sentences in all cases where the judge finds that the disparity is unwarranted.  It then shows how consideration of this disparity furthers Congress’s goal of increased sentencing uniformity and ensures greater fairness in the sentencing of defendants who only played a minor role in a crime.

Deep thoughts about post-Booker sentencing and sources of law

Professor Mark Osler, whose tendency toward deep and provocative sentencing thoughts are exemplified by his recent book"Jesus on Death Row: The Trial of Jesus and American Capital Punishment," has a fascinating new article now available here via SSRN.  The piece is titled "Seeking Justice Below the Guidelines: Sentencing as an Expression of Natural Law," and here is the abstract:

Even though there are strong personal incentives against it, federal judges abandon the sentencing guidelines in about one-third of all cases.  Shockingly, when they sentence outside of the range, 96% of the time the sentence is below the range rather than above.  Looking to both traditional descriptions of natural law and the use of natural law within American history, the author argues that this tendency can be seen as a natural law impulse, and one that ultimately will undermine limitations on sentencing discretion in the form of guidelines.

Seeking Sunday federal sentencing speculations

Amazingly, the five-year anniversary of the Supreme Court's blockbuster Blakely ruling is only a few months away.  And, even more amazingly, since the Supreme Court decided how it would apply Blakely to the federal system in Booker, the basic law and practice of the federal sentencing has been remarkably stable.  Despite lots and lots of predictions that Congress would respond to Blakely and Booker in all sorts of ways — and also lots and lots of recommendations from various quarters about how Congress should respond to Blakely and Booker — the post-Booker federal sentencing system has been largely free from significant congressional or executive changes.

The story of post-Booker stability has lots of facets, but one part surely involves political instability in both Congress and the Department of Justice.  By the time everyone started figuring out the impact of Booker in early 2006, Republicans were getting worried (rightly so) about staying in power in Congress.  And not long after Democrats took over Congress, then-AG Alberto Gonzales was starting to have his own troubles.

But, despite inevitable partisan bickering inside the Beltway, there is now a new political stability in DC.  The same party controls Congress and the White House, and a whole bunch of new people (some really new and some familiar) are not in power at the Department of Justice.  Some hope that these developments could bring progressive changes in mandatory minimum statutes, while other likely still worry (sensibly?) that any congressional work on sentencing statutes are more likely to be harsh and harmful.

Against this backdrop, I would like to hear from readers (whether in the know or just speculating) about what they think the federal sentencing system's future might look like.

Seeking help and input from would-be "Bookerologists"

As all sports fans know, this is the time of year in which so-called "bracketology" becomes the key to fame and happiness, and in which so-called "bracketologists" can shine as a result of their ability to sort through obscure data about college basketball teams to assess the past and predict the future.  With this spirit in mind, I want to encourage sentencing fans to consider getting interested in "Bookerology" and put out this call for help and input from would-be "Bookerologists."

Specifically, with the US Sentencing Commission's recent release of all its 2008 federal sentencing statistics (details here), I would like folks to help me  sort through obscure data about federal sentencing patterns to assess the Booker past and predict the post-Booker future.  In other words, I am eager and would be grateful for folks to use the comments or send me e-mail with analyses of what the 2008 federal sentencing data really tells us about what is really going on (and what should be going on) in modern federal sentencing.

"Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing"

The title of this post is the title of this interesting-looking new article by Professor Mary Kreiner Ramirez that I just came across via SSRN. Heres is the abstract:

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious.  Moreover, research suggests that such biases may be overcome or at least compensated by education on awareness of bias and countermeasures. Identifying unconscious preferences or biases and learning effective mechanisms for managing and changing unwanted preferences can impact the reasonable exercise of discretion on a case-by-case basis in sentencing decisions.

Judges are expected to render decisions impartially.  Nowhere is the need more critical than judicial determinations impacting liberty interests by imposing criminal punishment, and in particular, imprisonment.  Lack of awareness or education is likely to lead to suboptimal sentencing outcomes based upon in-group bias, inaccurate cultural associations, and other cognitive flaws that will invite further political disruption.  In contrast, investing in cultural competence and social cognition educational programs, and structuring programs to encourage interest in and attendance at such programs, can inform judges to improve their discretionary decision-making by overcoming any latent biases, thereby benefiting society through a more just legal system.

Nelson's key language and the SCOTUS spirit: guidelines are really, truly advisory

For the second week in a row, the Supreme Court has issued a little per curiam opinion to make sure, yet again, that lower courts really, truly understand that the Booker remedy means that the guidelines really, truly are advisory.  Today's opinion, in Nelson v. US, No. 08-5657 (S. Ct. Jan. 26, 2009) (available here), includes this key language (cites edited): 

Our cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable.  In Rita we said as much, in fairly explicit terms: “We repeat that the presumption before us is an appellate court presumption. . . . [T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.”  551 U. S., at 351.  And in Gall we reiterated that district judges, in considering how the various statutory sentencing factors apply to an individual defendant, “may not presume that the Guidelines range is reasonable.” Id..

In this case, the Court of Appeals quoted the above language from Rita but affirmed the sentence anyway after finding that the District Judge did not treat the Guidelines as mandatory.  That is true, but beside the point.  The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable. We think it plain from the comments of the sentencing judge that he did apply a presumption of reasonableness to Nelson’s Guidelines range.  Under our recent precedents, that constitutes error.

One might initially view this decision as just an example of the Justices making sure that the Fourth Circuit takes prior decisions to heart.  But the fact that Justice Breyer (with Justice Alito) concurred separately to assert that the Court should have just done a GVR rather than a summary reversal suggests to me that a lot more is afoot.

Specifically, with Gall and Kimbrough and now Spears and Nelson, I sense that the Justices (perhaps save Justices Breyer and Alito) are persistently troubled by how prominent the federal sentencing guidelines remain in both district and circuit sentencing decision-making.  Through Spears and now Nelson, the Justices have made extra efforts to say to lower courts that they need not, perhaps even should not, keep gravitating toward the guidelines.  Though one would have hoped this message came through loud and clear through the rulings in Gall and Kimbrough, it is important to see the Justices willingness to keep smacking down the circuits that seem so unwilling to get with the full 3553(a) post-Booker program.

Lots of criminal justice action from SCOTUS, including a sentencing per curiam

With all the executive branch excitement this week, I forgot that the courts are still the place to go for the best criminal justice action.  And, to my pleasure and surprise, as reported here and hereat SCOTUSblog, the Supreme Court has lots of this action with arguments in some criminal justice cases and the release of a number of decisions in previously argued cases.

But what has me most excited is the release of a per curiam opinion in Spears v. United States(08-5721), a sentencing case up from the Eighth Circuit that did not have argument.  Here are the basics on the ruling from Lyle Denniston:

The Court also released a per curiam opinion in Spears v. United States (08-5721), a sentencing guidelines case.  The opinion is here. The Chief Justice wrote a dissenting opinion, joined by Justice Alito. Justice Thomas dissented without opinion. Justice Kennedy would have granted the petition for certiorari.

I will have a lot more to say about Spears when I get a chance to digest the Justices' collective work.

Is it time now to get serious again about a Booker fix (or even an SRA fix)?

In the immediate wake of the Supreme Court's decision in Booker, there was much talk and debate about possible legislative "fixes" to the new sentencing system created by the Booker advisory guideline remedy.  As detailed in this post from fall 2006, the Booker fix buzz even found expression in the introduction of a Bookerfix bill by then-House Judiciary Committee Chairman, F. James Sensenbrenner, Jr.  That bill, HR 6254, proposed what was then known as the "topless guidelines" fix to Booker, and the bill that is formally called the "Sentencing Fairness and Equity Restoration Act of 2006." 

Though there seemed to be a serious possibility that a Booker fix proposal might have legs when the Republicans still controlled Congress, the reality of divided government after the 2006 election quickly ended serious talk of a Booker fix.  In addition, because circuit courts were still rigorously reviewing (and often reversing) below-guideline sentences, the full import and impact of the Booker ruling remained somewhat muted at least until the Supreme Court's decisions in Gall and Kimbrough in December 2007.  And by that time, the Department of Justice was in a bit of policy disarray in the wake of the departure of former Attorney General Alberto Gonzales (who had been an advocate of a Booker fix).

As of this afternoon, there is no longer divided government in Washington DC.  Democrats now control both houses of Congress and the White House.  And, with lots of new personnel with new energy and perspectives in the Justice Department (as detailed here at The BLT blog), it may be time to start thinking not just days and weeks ahead, but also years and decades ahead, concerning the federal system of crime and punishment.

Notably, this past Sunday marked the 20th anniversary of the Mistretta v. United States, the Supreme Court's decision that gave constitutional blessing to the institutional structure of the Sentencing Reform Act of 1984 (SRA).  As noted here last week, Booker has now been the law of the land for four years, and the Booker remedy has made even more difficult to make a crisp and sober assessment of whether the entire federal sentencing structure is working effectively. 

Add all this up, and maybe it is time to start talking about not just a Booker fix, but about a possible revision of the entire structure and content of the SRA.  After all, we have leaded a lot about sentencing law and policy over the last quarter-century, and the size of the federal criminal justice system has grown enormously during this period.  Perhaps, as we get really serious about fixing federal programs and policies that do not work, we ought to consider whether the entire SRA (and/or the Booker remedy) comprising a federal system in need of fixing.

Should we celebrate Booker's fourth birthday?

After a day on the road, I return to e-mail with a friendly reminder from a friendly reader that four years ago today the Supreme Court handed down Booker and converted the federal sentencing guidelines from mandates to advice.  This same reader also sent along these questions:

Four years on, Professor Berman, and how "effectively advisory" are those guidelines?

How healthy is that Sixth Amendment jury buffer?

Any profound thoughts on the state of federal sentencing a year after Gall and Kimbrough?

It just dawned on me this morning that yesterday marked the one-year anniversary of the Supreme Court's decisions in Gall and Kimbrough, the two cases in which the Justices made extra clear that Booker really meant that the guidelines were to be treated as truly advisory.  Though the US Sentencing Commission seems unlikely to produce a "one-year-later" report on the impact of Gall and Kimbrough, it seems fair to suggest that these cases have had an important and consequential effect on federal sentencing outcomes and atmospherics. 

I could opine at length about my own impressions of the tangible and intangible impact of Gall and Kimbrough, but this post is mostly designed to encourage reader input.  Specifically, I am eager to hear from commentors concerning whether and how Gall and Kimbrough should be celebrated or cursed one year later.  I would also love to hear suggestions about what institutions like the US Sentencing Commission, the Justice Department and Congress should be thinking about as we start year two of the post-Gall/Kimbrough world (and approach year five(!) of the post-Booker world).

A potent attack on the post-Booker world

Thanks to this post at C&C, I see that frequent commentor Bill Otis has a new article on federal sentencing appearing in the latest volume of Engage, the journal of the Federalist Society's practice groups.  This new article, which is titled "From Apprendi to Booker to Gall and Kimbrough: The Supreme Court Blunders its Way Back to Luck-of-the-Draw Sentencing," can be accessed here.  The piece is highly critical of the Supreme Court's work in Booker and its progeny, and here are snippets from the end of the piece:

[W]e now have something worse, and less honest, than the pre-SRA regime of standardless sentencing. We have standardless sentencing pretending to have standards.  The shrewdly opaque message to the public is that we still have sentencing guidelines, only that they are more “flexible” than before. Sentencing Commissioners continue to draw hefty salaries to write guidelines (that can be ignored at will).  Probation officers continue to calculate ranges on worksheets (that may count for something or may not). District judges go through the window dressing rehearsed for them in Gall and Kimbrough (assured by those decisions that if the litany is elaborate enough, it need not be given any weight). A person employing impolite language might call this a charade.

Because the hollowed-out guidelines are still twitching in the land of the un-dead, further depredations to the rule of law, and the proper role of the judicial branch, are sure to follow....

The road from Apprendi to Booker to Gall and Kimbrough is strewn with damage that has been all but ignored — damage to future public safety, to uniformity and honesty in sentencing, and to the proper authority of Congress.  In the 1980s, there was a bipartisan consensus strong enough to make federal sentencing conform for the first time to the rule of law.  Whether such a consensus exits today is an open question. But the first step toward building one is to understand, as it was understood twenty-five years ago, how urgently it is needed.

"Appellate Discretion and Sentencing after Booker"

The title of this post is the title of this article by Lindsey Harrison now appearing on SSRN. Here is the abstract:

When the Supreme Court in United States v. Booker rendered the United States Sentencing Guidelines advisory, most analysts initially predicted that federal sentencing would be invigorated by a "surge of judicial discretion."  Many defense attorneys and members of the news media hailed the decision a victory for criminal defendants, while others celebrated Booker for its emancipation of district court judges from the tyranny of the Guidelines.  Less explored in Booker's immediate aftermatch was how the decision would affect the courts of appeals' review of district court sentencing decisions.  What has resulted is primarily confusion about the role of the appellate courts in reviewing sentences. Several often seemingly conflicting imperatives are at play after Booker: the district court's discretion to impose a sentence unconstrained by the Guidelines, the obligation of the court of appeals to show deference to the substantive judgment of the district court, and the simultaneous authority of the court of appeals to review (and thus to disagree with) the substantive reasonableness of the sentence the district court has imposed.  The challenge after Booker is, in light of these imperatives, how to define the scope of the courts of appeals' authority with respect to sentencing, or what I call "appellate discretion" to review district court sentencing decisions.  Although there is a logical way to balance appellate discretion with deference to the district court, too often after Booker the courts of appeals have tipped to one extreme or the other.

In this article, I explore post-Booker sentencing cases in the courts of appeals.  In Part II, I provide a brief history of sentencing law from before the adoption of the Sentencing Guidelines up through Booker, highlighting the changes in appellate discretion over this period coinciding with the shift from no Guidelines to mandatory Guidelines to the current advisory-Guidelines system.  In Part III, I explore the confusion that has resulted since Booker, which has manifested in a series of circuit splits centering largely on the circuits' different understandings of their own discretion after Booker.  I also explain how certain of these splits were resolved by the Supreme Court's decisions in Rita, Gall, and Kimbrough.  In Part IV, I focus on the Eleventh Circuit's sentencing cases since Booker, Rita, Gall, and Kimbrough, exploring the underlying theme of the Circuit's struggle to define its own discretion.  Finally, in Part V, I advance a modest proposal for what I view as the proper appellate role in sentencing decisions after Booker, proposing specific rules for appellate review based on the Supreme Court's guidance in Rita, Gall, and Kimbrough.  By observing these rules, the Eleventh Circuit, and all of the courts of appeals, would more faithfully execute the type of limited abuse-of-discretion review that the Supreme Court has envisioned for the courts of appeals after Booker.

Primer on modern post-Booker realities for white-collar cases

Thanks to a friendly reader and West's copyright kindness, I can post a copy of a recent commentary by Ellen Brotman titled "From Jones to Rita, Gall and Kimbrough: The Supreme Court Gives Sentencing Back To the District Courts."  In addition to discussing a number a post-Booker basics, the piece concludes with some interesting ideas and practice pointers directed toward white-collar practitioners.  Here is a sample:

Beyond this support for below-guidelines sentences and judicial discretion, Gall and Kimbrough provide a significant tool for the white-collar practitioner at sentencing: the argument that an individual guideline does not itself reflect the factors listed in Section 3553(a) because the guideline has not been promulgated in accordance with the Sentencing Commission’s traditional role and expertise....

Use the Sentencing Commission’s own statistics and teachings to assist you in these arguments.  For example, the commission’s 2004 publication “Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform” includes an interesting discussion of the evolution of the guidelines relating to economic crimes and the difficulty of calculating the effectiveness or fairness of the interplay of enhancements that often occur in white-collar cases.

Download Brotman_WCCSentArt.pdf

The Federal Sentencing Guidelines are dead, long live the federal sentencing guidelines!

I just received these medical notices from the Sentencing Inquirer (a little-known, long-dormant publication from the Kane estate):

OBITUARY:  After an extended illness, the rigid Federal Sentencing Guidelines were taken off life-support on June 4, 2008 by the First Circuit and Fifth Circuit.  Astute diagnosis revealed a Sixth Amendment illness in 2000, and the Guidelines appeared doomed when taking a turn for the worse in summer 2004.  Radical reconstructive surgery in early 2005 by an active-liberty doctor (who had previously help birth the Guidelines), along with extensive nursing by federal circuit courts, enabled the rigid Guidelines to have nearly three more years of life.  But near-fatal blows suffered in late 2007 put the Guidelines on life support, and decisions by courts that had previously been energetic nursemaids prompted this official death notice.

The rigid Guidelines were born in 1987 long after progressive reformers urged their conception, led by the advocacy of sentencing godfather Marvin Frankel.  Though Democratic Senator Ted Kennedy spent a decade trying to give life to a new federal sentencing system, the rigid Guidelines only became possible when various Republican Senators agreed to tough-on-crime insemination in 1984.  A long painful pregnancy within the US Sentencing Commission resulted in the Guidelines emerging in 1987; they arrived much larger and tougher than had been anticipated by many interested observers. 

Soon after the rigid Guidelines were born, federal district judges diagnosed a set of potentially fatal structural constitutional ailments.  A team of eight pragmatic supreme doctors were able to resolve these structural problems in early 1989, and the rigid Guidelines we cleared to play outside with lawyers, probation officers and judges.

The rigid Guidelines had an exciting but difficult childhood, in part because many judicial playmates did not enjoy the elaborate word and math games that the Guidelines always wanted to play.  Fortunately for the rigid Guidelines, probation officers and the Justice Department and Congress and circuit courts were thoughtful and energetic guardians.  These guardians, along with the US Sentencing Commission, made sure district judges played nice with the rigid Guidelines; they also helped the Guidelines grow bigger and stronger and more rigid through the 1990s.

In 1996, the Supreme Court encouraged judges and the rigid Guidelines to play nice together.  But the Justice Department and Congress in 2003 ordered judges to stop playing some of their favorite games with the Guidelines.  This stern order may have aggravated the Sixth Amendment illness diagnosed in 2000 and perhaps indirectly sped the ultimate demise of the rigid Guidelines.

The rigid Guidelines leave behind many friends (and enemies), as well as its stepmother 3553(a).  Encouragingly, doctors have managed to rescue a new sentencing entity that had been growing within the rigid Guidelines since 2005. In lieu of flowers, the stepmother urges lawyers to contribute thoughtful sentencing research and analysis to help this new sentencing entity grow and prosper.

BIRTH ANNOUNCEMENT:  Born from the life force of the dying rigid Federal Sentencing Guidelines, a new flexible federal sentencing guidelines took a major step toward living on its own through a ruling by the First Circuit on June 4, 2008.  Conceived in a controversial severance laboratory as doctors tried to preserve life in her father in 2005, the flexible guidelines were subject to some neglect as circuit court nurses and prosecutors utilized an array of creative techniques to try to keep her father alive.  But in late 2007, a team of doctors finally clarified that nurses should focus their energies on the teachings of 3553(a); these doctors helped ensure that flexible guidelines could be fully loved and nurtured, and the full product of such nuturing started to show itself by mid 2008.

The health and future of the flexible guidelines will depend greatly upon whether she is well-fed by 3553(a) with the help of guardians providing sound sentencing research and effective common-law analysis.  In addition, the political forces which produced and shaped her father's development (and also engendered her many crazy mandatory minimum uncles) may prompt Congress and the Justice Department to seek ways to convince her to act more like her rigid father as she develops.