Sunday, October 25, 2015

Great Hastings Law Journal coverage of federal sentencing circa 2015

Earlier this year, I had the honor of participating in a Hastings Law Journal symposium on federal sentencing reform a decade after Booker.  During the live event back in February, I thought that the written product of the symposium would be terrific if it captured even just a small piece of the many ideas developed during the live event. This current issue of Hastings Law Journal has these resulting articles, and they are all terrific:

Keynote Address: Federal Sentencing Reform Ten Years After United States v. Booker by Hon. Charles Breyer

Merit-Based Sentencing Reductions: Moving Forward on Specifics, and Some Critique of the New Model Penal Code by Rory Little

Incentivizing Excellence: A Suggestion for Merit-Based Reductions from a Twenty-Six-Year Federal Prison Insider by Michael Santos

Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment by John Pfaff

October 25, 2015 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (0)

Monday, January 12, 2015

United States v. Booker is exactly 10 years old today, and...

apparently I am the only one to highlight (or perhaps even realize) that today marks a huge milestone in the history of the federal sentencing system and provides a unique moment for extended reflection on what a decade of advisory guidelines has wrought.

Given that sentencing jurisprudence never gets much respect from the usual constitutional law gurus, I suppose I am not all that surprised that the folks at SCOTUSblog or The Volokh Conspiracy  are not running some kind of "Booker at 10" commentary symposium.  But I suppose I was secretly hoping that maybe the US Sentencing Commission or the federal public defenders or the US Department of Justice or some of the bigger federal sentencing reform advocacy groups would have something notable on their websites about this milestone.

In an effort to fill this notable void, in some coming posts I may try to do some armchair data analyses and comment broadly on what I think a decade of advisory guidelines has wrought.  But for now I just wanted to link here to the full 124-page Booker opinion, note that this Booker anniversary is dog that is not barking, and encourage reader commentary about what the lack of attention might mean.

UPDATE:  A helpful reader reminded me that I should here note and praise that the Hastings Law Journal, as detailed here, is hosting a terrific symposium next month titled "Federal Sentencing Reform, Ten Years After United States v. Booker." I feel bad I did not flag this before, as I am one of the scheduled speakers on the second of these four planned panels:

January 12, 2015 in Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, October 14, 2014

Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation

I cannot resist the urge to use this space to reflect upon (and perhaps salve) my disappointment in the learning the certiorari petition in Jones v. US, No. 13-10026 — a case in which I wrote this SCOTUS amicus brief in support of cert — came up only one SCOTUS vote short of making it as the petition today was denied over a dissent authored by Justice Scalia and joined by Justices Thomas and Ginsburg.   As I briefly explained in this initial post on the cert denial, I find especially notable and troubling that neither Justices Sotomayor and Kagan provided the key single additional vote for cert given that both were in the majority in two recent cases which, I think, further set a foundation for finding constitutional limits on guideline punishment enhancements based on acquitted conduct.

As I have explained in prior posts and in my Jones amicus brief, in Peugh v. United States, 133 S. Ct. 2072 (2013) (authored by Justice Sotomayor), the Supreme Court clarified that Guideline ranges, even though now only advisory after Booker, still have consequential “force as the framework for sentencing” and thus are subject to at least some constitutional limitations on how they are calculated and applied. Id. at 2083-84.  And in Alleyne v. United States, 133 S. Ct. 2151 (2013) (with both Justices Sotomayor and Kagan as key votes to reverse a pre-Blakely/Booker precedent), the Supreme Court overturned a prior holding that had failed to recognize that the constitutional protections of the Fifth and Sixth Amendments apply fully not only to facts raising maximum sentences, but whenever the law creates a “linkage of facts with particular sentencing ranges." 133 S. Ct. at 2159-62.

I continue to believe (or at least want to believe) that the huge acquitted conduct guideline punishment enhancements at issue in Jones have to trouble greatly any Justice who truly accepts the Apprendi-Blakely Sixth Amendment jurisprudence, AND who truly believes the advisory federal sentencing guidelines still have constitutionally-significant legal force (as Peugh holds), AND who truly claims the Constitution is concerned with judicial findings of facts that raise punishment floors as well as ceilings (as Alleyne holds).  In other words, I continue to believe (or at least want to believe) that Justices Sotomayor and Kagan would be votes to reverse the sentences at issue in a case like Jones if and when cert is ever granted to review huge acquitted conduct guideline punishment enhancements.  

So why wasn't cert granted this time around, especially with Justices Scalia, Thomas and Ginsburg vocally in support of such a grant in Jones?  As the title of this post is meant to suggest, I think Justices Sotomayor and Kagan may have concluded it would be virtuous and valuable to be passive in this setting, at least for right now, because any extended SCOTUS consideration of extended acquitted guidelines punishment could give Sixth Amendment rights (and SCOTUS itself) an extended black eye (especially if one or both of them might ultimately be inclined to uphold extended acquitted guidelines punishments in Jones).  

I have long hoped for and sought a cert grant on acquitted conduct enhancements because I have long believed jurisprudes on both the left and the right will (and should) have a hard time defending, especially in light of the strong jury-rights rhetoric in cases like Apprendi and Blakely, a federal guideline sentencing system that still recommends huge punishment increases based essentially on judicial rejection of a not-guilty jury verdict.  (Notably, the only time SCOTUS directly addressed this issue, in the 1997 Watts case, the Court issued a summary reversal to permit acquitted conduct enhancements and thus prevented full briefing or oral argument on the matter.)   But yet again because of another cert denial, we will not learn if Justices Breyer and Kennedy (or even CJ Roberts), who in other settings express concerns about prosecutorial power and excessive sentencing, might be cajoled through full briefing and argument to see the constitutional vices of allowing prosecutors and judges to trump juries in the federal sentencing process. 

Finally, once one starts thinking about the possibility that Justices Breyer and Kennedy and even CJ Roberts might have been especially eager right now to dodge full consideration of acquitted conduct punishments, it becomes hard to avoid speculating about "long confernce" deals to deny cert and thereby dodge consideration now of other (higher profile) hard constitutionally issues.  As all Court-watchers know, the really big cert-denial news after the SCOTUS long conference involved denials in all the same-sex marriage cases from around the country.  Dare I show my ignorance about what really goes on behind SCOTUS doors when I wonder if, at least tacitly, a large block of Justices concluded during the long conference that it was in every Justices' interest to be "deeply in denial."  Just a (silly?) thought.

Previous related posts on the Jones case:

October 14, 2014 in Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case

I am very disappointed to have to report that this morning the Supreme Court denied certiorari review in the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal.  As I noted in this post last week, Jones v. US, No. 13-10026, was relisted by the Justices after their "long conference."  Now today's SCOTUS order list has at the very end the news that cert has been denied in Jones v. US, No. 13-10026, with a three-page dissent from that decision authored by Justice Scalia and joined by Justices Thomas and Ginsburg.  Mega-bummer!!!

Here is the bulk of Justice Scalia's dissent from the denial of cert in Jones (with emphasis in the original): 

A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.

Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal.  See Rita v. United States, 551 U.S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concurring in judgment).  If so, their constitutional rights were violated.  The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.”  Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U.S. 466, 483, n. 10, 490 (2000), and “must be found by a jury, not a judge,” Cunningham v. California, 549 U. S. 270, 281 (2007).  We have held that a substantively unreasonable penalty is illegal and must be set aside.  Gall v. United States, 552 U.S. 38, 51 (2007).  It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury.  It may not be found by a judge.

For years, however, we have refrained from saying so.  In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case.  We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness.  551 U.S., at 353; see also id., at 366 (Stevens, J., joined in part by GINSBURG, J., concurring) (“Such a hypothetical case should be decided if and when it arises”).  Nonetheless, the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range....

This has gone on long enough.  The present petition presents the nonhypothetical case the Court claimed to have been waiting for.  And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.  Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs.  The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions.  But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.  

On petitioners’ appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasonable but for judge-found facts, their Sixth Amendment rights were not violated.  744 F. 3d 1362, 1369 (2014).  We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment — or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.

I am especially disappointed that Justice Scalia and his joiners here could not garner one more vote to grant cert from any of the newer Justices who came on the Court after Blakely and Booker became the Sixth Amendment law of the land.  Of course, Justice Alito has frequently shown his disaffinity for expanding the Sixth Amendment rights recognized in those cases.  But Chief Justice Roberts joined the Blakely gang in applying (and arguably expanding) Sixth Amendment rights in Cunningham v. California and Justices Sotomayor and Kagan have "shown empathy" for defendants seeking expanded applications of the Sixth Amendment in more recent cases such as Alleyne.  As I will explain in a future post, anyone (like me) hoping that Justices Sotomayor and Kagan might end up being even more committed to defendants' procedural rights at sentencing has to be deeply troubled by their disinclination to provide a fourth vote for granting cert in Jones.

Previous related posts on this case and acquitted conduct sentencing enhancements:

October 14, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Sunday, October 12, 2014

"Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw"

The title of this post is the title of this intriguing new paper by U.S. District Judge Mark Bennett. Here is the abstract:

Cognitive "anchoring effect" bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic.  It is a cognitive shortcut that has a strong tendency to undermine judgments by "anchoring" a judgment to an earlier disclosed number, the anchor.  Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges.  The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random.

Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005).  Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed.  This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences.  This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range.

This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress.  It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines.  If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it — their improved awareness can only enhance the fairness of sentencing.

October 12, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, August 27, 2014

"Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash"

The title of this post is the title of this notable new essay about federal sentencing and appellate practices by Alison Siegler available via SSRN.  Here is the abstract:

For over twenty-five years, federal courts of appeals have rebelled against every Supreme Court mandate that weakens the United States Sentencing Guidelines. Since the Court made the Guidelines advisory in United States v Booker, the rebellion has intensified, with the appellate courts consistently ensuring adherence to the Guidelines by over-policing sentences that fall outside the Guidelines and under-policing within-Guidelines sentences.  The courts of appeals are now staging a new revolt, creating appellate rules — carve-outs — that enable them to reject meritorious challenges to within-Guidelines sentences.

Part I describes the previous rebellions.  Part II introduces the current rebellion.  Part II.A discusses what I term the “stock carve-out,” an appellate rule that violates the sentencing statute and the Sixth Amendment by allowing sentencing judges to ignore mitigating arguments regarding defendants’ personal characteristics.  Part II.B discusses the “§ 3553(a)(6) carve-out,” a rule that similarly violates the statute and precedent by allowing sentencing judges to ignore disparity arguments.  Part III concludes.

August 27, 2014 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, March 20, 2014

"Sentencing in Tax Cases after Booker: Striking the Right Balance between Uniformity and Discretion"

The title of this post is the title of this new paper by Scott Schumacher now available via SSRN. Here is the abstract:

It has been nearly ten years since the Supreme Court’s seminal decision in United States v. Booker, in which the Court invalidated the mandatory application of the United States Sentencing Guidelines.  In the cases that followed, the Court addressed subsidiary issues regarding the application of the Guidelines and the scope of appellate review.  However, despite — or perhaps because of — these opinions, there is little consensus regarding the status and extent of appellate review, as well as the discretion afforded sentencing courts. More troubling, what consensus there is seems to permit judges to impose any sentence they wish, as long as the appropriate sentencing procedures are followed.  As a result, we are in danger of returning to “the shameful lack of parity, which the Guidelines sought to remedy.”

The Sentencing Reform Act and the Sentencing Guidelines were designed to reduce disparity in sentencing and to reign in what one commentator described as a “lawless system.” However, the Guidelines as ultimately conceived drastically limited the sentencing judge’s ability to impose a sentence that was appropriate for the conduct and culpability of the defendant, creating a different kind of sentencing disparity. The current, post-Booker system provides more guidance than the pre-Guidelines system, but permits sentencing judges to disregard the Guidelines and develop their own sentencing policy.  As a result, rather than having a system that allows for sentences to be tailored to individual defendants, the current system allows sentences to be imposed based on the penal philosophy of individual judges. This will inevitably lead to unwarranted sentencing disparity.

This article traces the recent history of criminal sentencing and, relying on the influential works of John Rawls and H.L.A. Hart on theories of punishment, argues for a better system that allows for both guidance to sentencing judges and appropriately individualized sentencing.  My recommendation, although equally applicable to any federal sentence, will be examined through the lens of tax sentencing.

March 20, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, March 02, 2014

Has anyone formally calculated exactly how very few federal sentences are found unreasonable?

The question in the title of this post is prompted by two noteworthy (or perhaps not really noteworthy) circuit opinions from last week in which two way-above-guideline sentences were affirmed as reasonable by the panels of the First and Seventh Circuits in US v. Santiago-Rivera, No. 13-1228 (1st Cir. Feb. 28, 2014) (available here); US v. Castaldi, No. 10-3406 (7th Cir. Feb. 24, 2014) (available here).  In both cases, a defendant appealed as unreasonable the imposition of a prison sentence roughly a decade longer than the (already lengthy) prison term suggested by the applicable guidelines.  In both cases, the panel found the way-above-guideline sentence procedurally and substantively reasonable (though one Seventh Circuit judge dissented in Castaldi).

At one level, these two rulings highlight how increased district court discretion to sentence outside the guidelines will often be used enhance sentences involving serious and harmful crimes.  (Castaldi involved a big Ponzi scheme impacting many persons, Santiago-Rivera involved a police officer shooting.)  In addition, both rulings show that circuits may be especially inclined to find way-above-guideline sentences reasonable, even more so than way-below-guideline sentences.  (I cannot readily think of one, let alone two, sentences set a full decade below the calculated guideline sentence upheld after an appeal by the government.)  But, as the title of this post suggests, perhaps the broader story is how very few federal sentences are even found unreasonable.

Booker has been the federal sentencing law of the land since 2005, but the true era of modern reasonableness review likely should be defined as starting in December 2007 after the Supreme Court handed down the last of the troika of reasonableness review cases via Gall, Kimbrough and Rita.  Since those opinions were issued, we have probably had over 500,000 federal sentences imposed, and I suspect that less than 250 have been found procedurally unreasonable on appeal and less than 50 have been found substantively unreasonable.  (This federal defender document titled Appellate Decisions After Gall (and updated through early December 2013) provides the most complete accounting of reasonableness rulings that I have seen.)

In other words, based on this very rough assessment of reasonableness review outcomes compared to sentences imposed, it would seem that in only about one of every 2,000 federal sentencings does something go procedurally wrong and in only one of every 10,000 federal sentencings involves some substantive unreasonableness.  (Of course, the vast majority of federal sentences are not appealed, in part due to the wide use of appeal waivers in plea agreements, so the outcomes of appeals is not the ideal measuring stick here.  Still, I think these numbers are telling.)

For a lot of reasons, the prospect of reasonableness review may do a lot more work and have a lot more influence than the so-very-rare reversal of a sentence as unreasonable would suggest.  Still, I have largely given up my prior habit of regularly report notable federal circuit rulings concerning reasonableness appeals in part because affirmances in cases like Castaldi and Santiago-Rivera are, statistically speaking, not really notable.

UPDATE: I just noticed that a Fourth Circuit panel also issued an opinion on the same day as the First Circuit opinion linked above that affirms as reasonable a sentence set about 8 years above the guideline range in US v. Washington, No. 13-4132 (4th Cir. Feb. 28, 2014) (available here).

March 2, 2014 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Sunday, January 19, 2014

"More than a Formality: The Case for Meaningful Substantive Reasonableness Review"

The title of this post is the title of this astute new Note just published in the January 2014 issue of the Harvard Law Review. Here is the Note's introduction:

Appellate review of sentencing is under assault.  When the Supreme Court rendered the Federal Sentencing Guidelines nonbinding in United States v. Booker, it established appellate review of federal sentences for reasonableness to cabin sentencing judges’ newly acquired discretion.  The substantive component of this review — which authorizes appellate courts to vacate those sentences that reflect clear errors in judgment or that are excessively disproportionate — is a fundament of the post-Booker sentencing regime, but one that courts have struggled to implement.  Indeed, a troubling consensus is emerging that substantive reasonableness review is unworkable or even undesirable.  Such views neglect unwarranted disparities in sentences and threaten to disrupt the feedback loop between courts and the U.S. Sentencing Commission (the Commission) that appellate review was intended to serve.  If sentencing is to be fair, appellate courts must do better. This Note argues that they can.

This Note proceeds in five parts.  Part I surveys the history of appellate review of federal sentences.  Part II relies on case law and recent statements by a variety of stakeholders to examine the state of substantive reasonableness review in the circuit courts.  Part III defends meaningful substantive reasonableness review as essential to promoting fairness and uniformity in federal sentencing.  Part IV identifies ways in which the courts and the Commission can work toward a more effective and stable system of substantive review. Part V concludes.

January 19, 2014 in Booker and Fanfan Commentary, Booker in the Circuits, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, November 11, 2013

"Sentence Appeals in England: Promoting Consistent Sentencing through Robust Appellate Review

The title of this post is the title of this notable new paper authored by Briana Rosenbaum now available via SSRN. Here is the abstract:

Unlike in most areas of the law, federal courts of appeals in the United States defer to trial courts on many issues of sentencing law and policy.  As a result, the power to decide sentencing law and policy is often at the discretion of individual district court judges. Law reform scholars have long decried the disparity, lack of transparency, and legitimization concerns that this practice raises.  These concerns are heightened in the post-Booker sentencing regime, where the advisory nature of the Federal Sentencing Guidelines undermines those Guidelines’ ability to further sentencing consistency.

The deferential approach to federal sentence appeals is in sharp contrast to the approach in England, where the appellate court conducts de novo review of sentencing law and policy to develop a common law of sentencing that is independent of the English sentencing guidelines.  The English model of appellate review suggests a new way to design the role of appellate courts in the federal system: from bodies that merely enforce guidelines to further consistency of sentencing outcomes, to bodies that develop sentencing law to further consistency of sentencing approach.

In this paper, I explore the primary functional, institutional, and normative arguments behind the resistance to robust appellate review in the federal appellate courts and study the English model as a means of evaluating these critiques.  Ultimately, I suggest that the federal courts of appeals borrow England’s “mixed deference approach” to sentence appeals, including de novo review of sentencing law and principles.  Doing so will promote greater sentencing consistency without either over-enforcement of the Guidelines or unwarranted encroachment of sentencing discretion.

November 11, 2013 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, September 30, 2013

Advice for the US Sentencing Commission from former USDJ Nancy Gertner

Nancy-gertnerI am genuinely unsure if the US Sentencing Commission gets to keep working if we end up having a federal government shut-down this week.  But I am sure that the USSC starts an official new fiscal year as of tomorrow morning and that any government shut-down is not going to keep federal defendants from being sentenced and that the USSC will be up-and-running in some capacity both sooner and later.  For those reasons, I am pleased right now to be able to post these comments sent my way by former federal district judge (and now Harvard law professor) Nancy Gertner about what the USSC ought to be doing as FY 2014 in the federal sentencing system gets underway:

At a time when the “common law of sentencing,” is being shaped in federal district courts, why does the Sentencing Commission only post Circuit Court decisions on its web site?  In 2012, sentences that had been appealed on the grounds of unreasonableness were affirmed 95 percent of the time.  And that rate has remained steady on the national level: In 2011, the affirmance rate was roughly 94 percent; in 2010 it was approximately 96 percent; and in 2009, 97 percent affirmances.  In my circuit, the First Circuit, not a single sentence was deemed unreasonable on appeal in 2011 or 2012, and only a handful of cases qualified in the immediately preceding years. In effect, as with other areas of law where the standards of review are forgiving (think evidentiary appeals on forensic issues which are reviewed for “abuse of discretion” and rarely overturned), the appellate courts are not defining substantive sentencing standards, and imposing only minimal procedural ones.

Clearly most of the meaningful sentencing developments -- the substantive sentencing standards, the guideline analysis and trenchant critique -- are happening at the district court level in the decisions of judges like John Gleeson and Jack Weinstein (S.D.N.Y.), Mark Bennett (N.D. Iowa), Ellen Huvelle (D.C.), Paul Friedman (D.C.) and Lynn Adelman (E.D. Wisconsin). While not all judges take the time to write formal sentencing opinions, those that do should have their work circulated by our “expert” Commission rather than being ignored.

If the Commission is interested in minimizing disparity in sentencing in a post-Booker world (which should be one of its goals -- hardly the only one), what better way than to make certain that the opinions of district court judges are communicated more broadly to the federal bench?  When these judges offer a reasoned analysis of the Guidelines or an alternative way of analyzing the cases, why not ensure that other judges see their work and decide whether to follow it?  Other judges can look at their reasoning– not as binding precedent, but as a template for the cases they see, e.g. here’s one approach to firearms cases, non violent drug offenders, white collar cases, etc.  If a common law of sentencing is ever to evolve -- supplementing (or in some cases supplanting) the Guidelines -- why not assist in its development? In a common law system, decisional law establishes standards. Uniformity is not enforced from above -- as in civil code countries -- but evolves from reasoned judicial decisions.  In effect, with advisory Guidelines, we have a hybrid system -- Guidelines and decisional law.

To look at the Commission web site, there is only one orthodoxy -- the Guidelines, and Appellate Court decisions that rarely say much of anything.  In fact, the message conveyed by the web site is that the Commission is not interested in uniformity as a general matter, just one kind of uniformity -- the uniform enforcement of its flawed product, the U.S. Sentencing Guidelines.  Teach the Guidelines.  Describe appellate court decisions affirming whatever the district courts do without meaningful analysis.  Ignore the fine work of the judges trying to create meaningful standards where it counts the most, in the sentencing of individuals.

September 30, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Saturday, August 10, 2013

"Parole: Corpse or Phoenix?"

The title of this post is the title of this very interesting looking new paper authored by Paul Larkin Jr. of The Heritage Foundation and now available via SSRN.  Here is the abstract:

For most of the twentieth century, the federal government used an indeterminate sentencing system at the front end of the correctional process and a parole system at the back end in order to determine when an offender should be released from prison. In 1984, Congress sought completely to revise the federal sentencing and correctional processes. Congress adopted a mandatory sentencing guidelines system in order to restrain the discretionary sentencing authority that federal courts traditionally had enjoyed. Congress rejected an advisory guidelines system because Congress believed that such a process would not eliminate the sentencing disparities that had plagued the federal criminal justice system for decades. Because the new mandatory guidelines would both regularize the sentencing decision and determine when a prisoner would be released, Congress repealed the federal parole laws as being unnecessary. The Supreme Court upheld the constitutionality of the new system over separation of challenges in Mistretta v. United States, 488 U.S. 361 (1989), and parole seemed to have passed into history.

Sixteen years later in United States v. Booker, 543 U.S. 220 (2005), however, the Court held that the same mandatory sentencing guidelines system upheld in Mistretta violated a defendant’s rights under the Sixth Amendment Jury Trial Clause. Booker and later decisions have made the federal sentencing guidelines advisory. The problem is that Congress rejected an advisory guidelines system and would not have repealed the parole laws if the federal sentencing process did not strictly constrain district courts’ sentencing authority. One of the consequences of the Booker decision, accordingly, is that federal sentencing now is susceptible to the same disparities that Congress sought to remedy with mandatory determinate sentencing guidelines in 1984. The article discusses the question whether the Booker decision has breathed new life into the federal parole laws now that the condition precedent for their repeal, adoption of a mandatory sentencing guidelines system, is no longer in effect.

August 10, 2013 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

Monday, June 17, 2013

First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris

I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely.  But I have three quick reactions about the ruling and its potential impact I wanted to share right away.  I will give this trio of reactions these labels: big, not-so-big, could-be-huge.

The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system.  That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris.  And Harris is now a goner.

The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne.  For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court.  Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.

The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities.  If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term.  (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)

Prior related post on Alleyne ruling:

June 17, 2013 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, June 13, 2013

"The Non-Redelegation Doctrine" with post-Booker sentencing in mind

Now available via SSRN is this intriguing new article from F. Andrew Hessick III and Carissa Byrne Hessick, which is titled simply "The Non-Redelegation Doctrine." Here is the abstract, which highlights why this article should be of special interest to sentencing fans:

In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission.  One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges.  District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.

This Essay argues that, when faced with a decision that implicates a delegation, the courts should not redelegate unless authorized by Congress to do so.  The proposed non-redelegation doctrine rests on both constitutional and practical grounds. Constitutionally, because delegation defines how Congress chooses to perform its core function of setting policy, judicial redelegation raises substantial separation of powers concerns.  Practically, judicial redelegation is bound to affect the substantive policies that are adopted because the policies that the agent adopts depend on the agent’s unique characteristics and preferences.  Although this Essay uses Booker to illustrate the need for the presumption, the presumption would apply equally to the myriad contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.

June 13, 2013 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, June 10, 2013

Guidelines are "the lodestone" of federal sentencing (as well as "the starting point and the initial benchmark")

225-lodestone-magnetThe title of this post is drawn from the key word in a key paragraph that captured my attention in what is otherwise a straight-forward opinion by the Supreme Court today in Peugh (basics here).  Here is the context from a paragraph that effectively summarizes the conclusions of the Peugh majority opinion per Justice Sotomayor:

"The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing.  A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation."

Major kudos to Justice Sotomayor for adding a fitting new term to the post-Booker federal sentencing lexicon.  Kudos also to the majority Court for stressing these enduring modern federal sentencing realities in the course of reaching its conclusions:

When Peugh committed his crime, the recommended sentence was 30 to 37 months.  When he was sentenced, it was 70 to 87 months....  Such a retrospective increase in the measure of punishment raises clear ex post facto concerns.  We have previously recognized, for instance, that a defendant charged with an increased punishment for his crime is likely to feel enhanced pressure to plead guilty.  See Carmell, 529 U.S., at 534, n.24; Weaver, 450 U.S., at 32.  This pressure does not disappear simply because the Guidelines range is advisory; the defendant will be aware that the range is intended to, and usually does, exert controlling influence on the sentence that the court will impose....

On the Government’s account, the Guidelines are just one among many persuasive sources a sentencing court can consult, no different from a “policy paper.”  Brief for United States 28.  The Government’s argument fails to acknowledge, however, that district courts are not required to consult any policy paper in order to avoid reversible procedural error; nor must they “consider the extent of [their] deviation” from a given policy paper and “ensure that the justification is sufficiently compelling to support the degree of the variance,” Gall, 552 U.S., at 50.  Courts of appeals, in turn, are not permitted to presume that a sentence that comports with a particular policy paper is reasonable; nor do courts of appeals, in considering whether the district court’s sentence was reasonable, weigh the extent of any departure from a given policy paper in determining whether the district court abused its discretion, see id., at 51.  It is simply not the case that the Sentencing Guidelines are merely a volume that the district court reads with academic interest in the course of sentencing.

And kudos also to Justice Thomas for providing a slightly competing vision of the post-Booker world via passages in his dissent like the following that, I suspect, will end up in many more defense sentencing submissions than government ones:

[T]he Guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence.  Second, to the extent that the amended Guidelines create a risk that a defendant might receive a harsher punishment, that risk results from the Guidelines’ persuasive force, not any legal effect....

Petitioner next argues that the Guidelines limit district court discretion because sentences falling outside the Guidelines are more likely to be reversed for substantive unreasonableness.  Brief for Petitioner 25.  I doubt, however, that reversal is a likely outcome when a district judge can justify his sentence based on agreement with either of two Guidelines — the old or the new.  If a district court calculated the sentencing range under the new Guidelines but sentenced the defendant to a below-Guidelines sentence that fell within the range provided by the old Guidelines, it would be difficult to label such a sentence “substantively unreasonable.”  To do so would cast doubt on every within-Guidelines sentence issued under the old Guidelines.

I have long suggested that defense attorneys regularly and in every case calculate, and submit to a sentencing court prior to sentencing, the "old" sentencing ranges that would have applied under the original 1987 version of the federal sentencing guidelines which were first promulgated by the original US Sentencing Commission.  The above-quoted passages from Justice Thomas now would enable sentencing courts to feel confident that a sentence within the range suggested by the 1987 guidelines should nearly always be deemed reasonable.

June 10, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

SCOTUS concludes Ex Post Facto Clause still limits application of new guidelines after Booker

Thanks to the fine folks live-blogging at SCOTUSblog, I can provide this summary report (with a few edits) of the one big sentencing ruling handed down by the US Supreme Court this morning:

Justice Sotomayor for the Court in Peugh v. United States....

The decision of the Seventh Circuit is reversed, the case is remanded.  The Court is splintered.  Justice Sotomayor delivers the opinion of the Court except for one part. The Ex Post Facto Clause is violated when a defendant is sentenced under guidelines promulgated after he committed his acts, and the new version of the guidelines provides for a higher sentence than the one in effect at the time he committed his act.

Justice Sotomayor's opinion is for the Court except for a discussion about the policies underlying the Ex Post Facto Clause.  It's another case where Justice Kennedy joins the more liberal members of the Court.

Justice Thomas dissents, joined by the Chief and Scalia and Alito. Justice Alito dissents, joined by Justice Scalia.  Justices Ginsburg, Breyer, and Kagan join all of the Sotomayor opinion; Justice Kennedy declines to join Part III-C.

The big fight in the case was whether the Sentencing Guidelines are important enough to trigger Ex Post Facto review given that they are no longer binding -- the majority says they are....

The part of the Sotomayor opinion that Kennedy does not join is a response to the argument by the government and the dissent that the Ex Post Facto Clause is not implicated by this case.  The ruling will be significant to the ability of courts to apply tougher new sentencing guidelines to pending cases.  It is also a strong reaffirmation of the Ex Post Facto Clause.

The full opinions in Peugh are available here.  The opinion for the Court per Justice Sotomayor runs 20 pages, and the main dissent per Justice Thomas is 14 pages. 

Kudos to the Court in keep this one relatively brief, as I suspect every sentence from the Justices in this case could end up having some impact on the operation of the post-Booker federal sentencing world.  And once I get some time to read these opinions, I will do some follow-up posts on whether Peugh passes the smell test (get it..., I know, pretty lame).

June 10, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Thursday, February 21, 2013

US Sentencing Commission website back in action with full Booker report and FY 2012 sentencing data

I am very pleased to have discovered tonight that the US Sentencing Commission, just less than a month after Anonymous hacked into its website (basic here), now has its website up and running again.  And not only is the USSC website back, but it is now better than ever with these two new big sets of materials:

NEW Report to Congress on the Continuing Impact of United States v. Booker on Federal Sentencing

This report assesses the continuing impact on the federal sentencing system of the Supreme Court's decision in United States v. Booker.

NEW Final FY12 Quarterly Sentencing Update

This report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.

Congrats to the USSC for getting its on-line house back in order. I for one truly missed the USSC website when it was gone.

Recent related posts:

February 21, 2013 in Booker and Fanfan Commentary, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, February 19, 2013

"Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines"

The title of this post is the title of this newly available piece via SSRN authored by Scott Michelman and Jay Rorty. Here is the abstract:

Federal sentencing law is in the midst of a period of profound change.  In 1984, responding to concerns about excessive judicial discretion in sentencing, Congress created the United States Sentencing Commission to promulgate the United States Sentencing Guidelines (Guidelines), a complex and mandatory schedule of federal criminal sentences based on a multitude of offense- and offender-specific factors.  The Guidelines were introduced in 1987 and governed federal sentencing for nearly twenty years.  But in 2005, the Supreme Court held that the Guidelines, by requiring judges instead of juries to find facts that could increase a defendant's sentence, violated the Sixth Amendment.  The Court's remedy was to render the Guidelines advisory only -- a starting point but not necessarily the endpoint for sentencing decisions.

Over the past several years, the Supreme Court and the lower federal courts have had to answer a range of questions about how the new advisory Guideline system would work in practice.  Among the most consequential were the procedural question of how a district court should apply the now-advisory Guidelines, and the substantive question of whether a court could vary from the Guidelines on the basis of a policy disagreement with the Guidelines themselves rather than the circumstances of an individual defendant.

The Supreme Court answered these two crucial questions in the Gall and Kimbrough cases in December 2007, yet these two decisions seemed to talk past each other in terms of sentencing procedure.  Kimbrough authorized policy-based variances.  Gall instructed courts how to apply the advisory Guidelines in individual cases.  But neither case explained how or when in the sentencing process courts should apply the policy-based variances the Court had just authorized.  The result has been a lack of procedural uniformity among district courts applying policy-based variances, with most courts mingling policy and individualized considerations without specifying the role of each factor in determining sentences.  Most courts have not even acknowledged, much less attempted to bridge, the gap between the substantive sentencing considerations authorized in Kimbrough and the procedural roadmap laid out in Gall.  Academic discourse has likewise left this issue unaddressed.

This Article urges courts to reconcile Kimbrough and Gall by adding an analytical step to the sentencing process through which courts can explicitly apply policy considerations separately from, and prior to, individualized considerations.  The blending of policy- and individual-based factors in sentencing adversely affects both the fairness of individual sentences and the development of the Sentencing Guidelines themselves.  When courts blend different types of variances together, it is more difficult for them to exercise fully each type of discretion available under the advisory Guideline regime.  Additionally, the Sentencing Commission relies on a continuing dialogue with district courts to fulfill its perpetual responsibility of refining the Guidelines based on empirical data and national experience; a clear articulation of courts' grounds for variance, therefore, provides vital information about how the Guidelines can be improved.  The creation of an independent analytical step will ensure faithfulness to Kimbrough and due consideration of each facet of the sentencing court's discretion.  The result will be a sentencing process that is more precise, more transparent, and ultimately fairer.

February 19, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0) | TrackBack

Sunday, February 17, 2013

If you are eager for access to all parts of the new US Sentencing Commission Booker report...

Federal practitioner Mark Allenbaugh has posted via this special page (which is part of his firm website) all the separate parts of the US Sentencing Commission's massive report on the post-Booker federal sentencing system. 

Regular readers will recall that I had the honor, via this post, of being the first website to post Part A of the new USSC Booker report (and an accompanying press release) due to the technical difficulties facing the USSC website thanks to the Anonymous scoundrals.  I has been hoping, now a full three weeks after the US Sentencing Commission's website was hacked up and taken down, that the USSC would have its on-line home back in working order.  But, as of this writing, the USSC's main webpage is still "under construction." 

Word among those in the know is that, within the next few weeks, the US Sentencing Commission will also be releasing a big new report about federal child porn sentencing.  I remain hopeful that the USSC's website will be back in action by the time the CP report is ready.  But I suppose only time will tell.

Recent related posts:

February 17, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, February 01, 2013

Summary of key USSC findings in its big new Booker report

6141708385_8dedf68f37As explained here, unfortunately, wascally on-line wabbits have so far managed to allow only the first big part of US Sentencing Commission super-sized new Booker report to be available on-line only via this SL&P link.  Fortunately, because others are primarily in charge of chasing down the annoying anonymous hackers (and because the NRA is primarily in charge of making sure all the rest of us have a right to use maximum firepower when hunting other forms of wabbits), I can spend my time trying to take stock of all the incredible effort and research reflected in the part of the new USSC Booker report now available for general consumption.

Though I am still just start to scratch the massive surface of the mass of information in just the first part of the new USSC Bookerreport, I can begin some assessment of what's in there by first praising the Commission for having a handy list of bolded "key findings" summarized in the first chapter.  Here, in full text, are all the bolded key findings set out in the report's Overview chapter [with my own numbers added]:

[1] The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.

[2] The guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.

[3] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, has generally remained stable in drug trafficking, firearms, and immigration offenses, but has diminished in fraud and child pornography offenses.

[4] For most offense types, the rate of within range sentences has decreased while the rate of below range sentences (both government sponsored and non-government sponsored) has increased over time.

[5] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, and as measured by within range rates, has varied by circuit.

[6] The rates of non-government sponsored below range sentences have increased in most districts and the variation in such rates across districts for most offenses was greatest in the Gall period, indicating that sentencing outcomes increasingly depend upon the district in which the defendant is sentenced.

[7] For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.

[8]Prosecutorial practices have contributed to disparities in federal sentencing.

[9] Variation in the rates of non-government sponsored below range sentences among judges within the same district has increased in most districts since Booker, indicating that sentencing outcomes increasingly depend upon the judge to whom the case is assigned.

[10] Appellate review has not promoted uniformity in sentencing to the extent the Supreme Court anticipated in Booker.

[11] Demographic factors (such as race, gender, and citizenship) have been associated with sentence length at higher rates in the Gall period than in previous periods.

I do not think any of these key findings are especially surprising, though I suspect some (many?) will still prove to be somewhat controversial.  Most fundamentally, I am certain that all of these findings could be "spun" in any number of ways in any number of settings.  For example, I think one might reasonably wonder whether finding 8 concerning prosecutors contributing to disparties best explains finding 11 concerning increased demographic disparities.  (Also, it is especially interesting to consider how one might spin findings 2 and 5 and 6 in the on-going Supreme Court litigation concerning the application of ex post facto doctrines in the post-Booker advisory guideline system.)

All these key findings should and likely will engender lots of discussion and debate in the weeks ahead.  For now, though, I am eager to hear from readers about which particular finding they consider most important or least important (or, perhaps, least likely to get enough attention or most likely to get too much attention).   As one who has long been concerned that federal sentencing severity and the overall growth in the total number federal defendants gets too little attention while disparity gets too much attention, I will assert that finding 1 above and the realities it reflects is really the most important big-picture take-away point.  I have a feeling, though, that others may have distinct views.

Recent related post:

February 1, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, June 28, 2012

The cites to and echoes of Booker in today's SCOTUS health care ruling

In the comments to this prior post, DEJ makes this observation: "After holding the Medicaid expansion unconstitutional, the Court had to decide the remedy for violating the Spending Clause: Must the entire expansion fall or does it remain in some form?   And how, exactly, did the plurality come to its remedy? By looking to the Booker remedy opinion: "In considering that question, '[w]e seek to determine what Congress would have intended in light of the Court’s constitutional holding.' United States v. Booker, 543 U. S. 220, 246 (2005)."   Booker is twice cited by the plurality to support its remedy."

In addition, a thoughtful law grad from my alma mater, Rajiv Mohan, sent me this e-mail to not "how similar [the ACA ruling] is to Booker":

In both cases, legislative innovations -- if not limited -- threatened deeply-held constitutional principles: the right to trial by jury on the one hand, and enumerated powers on the other.

In both cases, the proposed limiting principle is oddly formalistic and susceptible to legislative circumvention. The Apprendi principle, after all, could be circumvented by advisory guidelines that give no role to the jury. And even with a ban on mandates under the Commerce Clause, Congress could achieve the same effect through the tax power.

And in both cases, a majority of the Court accepts the limiting principle, only for one Justice to back away from its seemingly natural consequences by pragmatically imputing to Congress a will to do what it no doubt could have done, in the face of considerable doubt that it actually did.

In a similar vein, public defender David Hemmingway sent me an e-mail to report his "whimsical notion" that the Booker remedy played a role in the ACA litigation outcome, which includes these observation:

This morning as SCOTUSblog was reporting that the individual mandate survived at the very same time that CNN & Fox loudly proclaimed that the Court had struck it down, [a lawyer in] our office recalled that overcast January day in 2005 when the Court issued Booker: everyone was reading it and scratching their head. In the ensuing seven years, CJ Roberts along with Justices Sotomayor and finally Justice Kagan have embraced it (as confirmed by last week's decision in Southern Union that the Apprendi right to jury fact finding also applies to criminal fines).

So maybe seven years of life with the Booker remedy -- which still stands in tension with both the Sixth Amendment violation that prompted it and the Congressional intent to reduce judicial discretion under the Sentencing Reform Act -- helped make it possible or easier for Roberts to join two conflicting majorities and uphold the ACA. At this time, on this planet, there are times when the best one can hope for requires that we live in a contradiction.

June 28, 2012 in Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (8) | TrackBack

Friday, May 18, 2012

What are the odds SCOTUS grants cert in the (in)famous Rubashkin case?

The question in the title of this post is prompted by this recent commentary by Harlan Protass in the Des Moines Register headlined "Jail sentence doesn't fit the crime." Here are snippets:

Sholom Rubashkin, a first-time, non-violent offender, was convicted in 2009 of bank fraud related to his operation of a kosher slaughterhouse in Postville.  He is no Boy Scout.  He committed financial fraud, was convicted at trial and deserves punishment.  Like any defendant found guilty of having committed a federal crime, Rubashkin also was constitutionally entitled to consideration of all arguments for leniency, an explanation of the reasons for the sentence he received, and review of that punishment by a higher court.

But when Chief District Judge Linda R. Reade of the U.S. District Court for the Northern District of Iowa disregarded her obligation to consider Rubashkin’s grounds for mercy and instead just sentenced him to 27 years behind bars, she left the appellate judges who examined Rubashkin’s case with no means for determining whether the penalty she imposed was fair, just or reasonable.  That’s why it’s so important for the U.S. Supreme Court to hear Rubashkin’s appeal....

A series of recent Supreme Court decisions prohibit judges from mechanically adhering to federal guidelines.  Rather, judges are supposed to use their own judgment when meting out sentences, including consideration of all factors that might mitigate the sentence suggested by the guidelines. Simply put, judges are required to impose sentences that fit both the offender and the offense and are supposed to jail defendants for only as long as is “sufficient, but not greater than necessary” to reflect a host of penal objectives.

In Rubashkin’s case, Judge Reade paid only lip service to these legal requirements.  She dispatched her obligation to consider factors other than the federal guidelines in a mere four pages of her 52-page sentencing decision.  She essentially gave the back of her hand to the mitigating detail presented by Rubashkin’s lawyers, including his responsibility for 10 children, his extensive charitable activities, the absence of any indication that he was motivated by greed, and, most significantly, the disproportionality of the sentence recommended by federal guidelines as compared to those handed down in fraud cases of similar size and scope.

On appeal, the U.S. Court of Appeals for the Eighth Circuit essentially ignored Judge Reade’s omissions, inaccurately stating that she had “explicitly discussed each possible basis” for a shorter sentence than that called for by federal guidelines.  In doing so, that court failed to fulfill its own obligation to ensure that sentences conform with the constitutional standards set by the Supreme Court.

To ensure the promise of a fair and just criminal justice system, it is critical that the Supreme Court, which is currently considering his request for a hearing, review Rubashkin’s case.  It should find that judges must state on the record — in a written statement of reasons or during the sentencing hearing itself — that they considered and how they accounted for each and every mitigating factor.

This is of particular importance to those who receive sentences measured in decades, not years, like the 27-year prison term that Rubashkin received.  The alternative — silence by sentencing judges — is constitutionally unacceptable, not only for the likes of Rubashkin, but also for any other citizen who might one day run afoul of the law.

As detailed in an amicus brief on sentencing issues I authored to support Rubashkin's cert petition (discussed here), I concur with this commentary's advocacy for SCOTUS review in this case focused on sentencing issues.  In addition, as detailed in this ABA Journal report, my amicus brief was one of six filed in support of cert.  One amicus brief, authored by former SG Seth Waxman, concerns recusal issues based on the presiding judge's pre-trial involvement with prosecutors as "was signed by 86 former officials and judges, including former attorneys general and other prior Justice Department officials. They include former FBI directors Louis Freeh and William Sessions, former Attorneys General Edwin Meese and Dick Thornburgh, and former Solicitor General Kenneth Starr." And, other amicus briefs "were filed by the National Association of Criminal Defense Lawyers ..., the Association of Professional Responsibility Lawyers, a group of 40 legal ethics professors, and the Justice Fellowship. Some of the briefs deal only with the fairness of the sentence, while others deal with recusal issues and the 8th Circuit's new trial standard."

All this amicus support, together with the fact that former SG (and SCOTUS magician) Paul Clement is representing Rubashkin before the High Court, surely raises significantly the odds of a cert grant.  But, while making a cert grant more likely, it is hard to ever assert that a cert grant in a federal criminal case is "probable."  Indeed, in this effective Slate commentary focused upon the judicial bias issues raised by the case, Emily Bazelon concludes with this sober assessment:

The larger problem here is that, practically speaking, federal judges have enormous leeway in deciding whether to take themselves off a case because of potential bias or perceived bias.  When they make a bad call, there are rarely any consequences. In all likelihood, the Supreme Court will turn Rubashkin down and refuse to intervene this time, too.  The jury who convicted Rubashkin sat for 18 days and reviewed more than 9,000 exhibits, and the justices probably have as little appetite for a do-over as they do for smacking down Judge Reade.  But even if you can’t bring yourself to care much about the fate of Sholom Rubashkin, the oddities of this case don’t sit well.  Judges shouldn’t be able to make up their own rules for policing themselves.

As this Supreme Court docket sheet reveals, the feds will not be filing a response to all the cert advocacy until at least early July, and thus the Justices will not be considering this case directly until well into summer.  To its credit, SCOTUS recently has not shield away from taking up high-profile criminal cases raising high-profile issues (see, e.g., US v. Skilling), and thus I am a bit more optimistic that Bazelon that SCOTUS will take up the Rubashkin case.  But I am eager to hear from readers as to whether they think this might be just wishful thinking on my part.

May 18, 2012 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Gall reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, May 17, 2012

Judge Young's latest account of (and homage to) jury involvement in sentencing fact-finding

US District Judge William Young of the District of Massachusetts, who has produced a regular supply of interesting (and lengthy) opinions about the role of juries in the modern criminal justice system, today issued another interesting (and lengthy) opinion such in US v. Gurley, No. NO. 10-10310 (D. Mass. May 17, 2012) (available for download below).  Judge Young's work always merits attention, and the 51-page sentencing opinion in Gurley does not disappoint.  There is far too much ground covered in Gurley to allow a simple summary, but here is the start of the main legal discussion section -- which begins on page 24 of the opinion! -- to provide a flavor of why Gurley is today's federal sentencing must-read:

I am a district judge sitting in the First Circuit. I owe the utmost fidelity to the Acts of Congress, the decisions of the Supreme Court, and those of the First Circuit. Government waiver aside, I owe a duty to explain that my post-Booker insistence on keeping the jury-front-and-center is fully consonant with the controlling statutes and case law.

The issues presented to this Court are whether the Court “must” apply the ten-year mandatory minimum sentence to the basic sentencing range set out in 21 U.S.C. § 841(b)(1)(C) and whether the principle of juror lenity bears on determinations as to the authorized sentence range.

I answer to the first question in the negative because the statutory range authorized by the jury does not provide for a mandatory minimum sentence. As to the second question, Supreme Court precedent binds this Court to recognize the principle of juror lenity in determining the applicable sentencing range. In doing so, this Court does not abdicate its post-Booker discretion to decide a just sentence based on a fair preponderance of the evidence as counseled by the Sentencing Guidelines. Rather, this Court endeavors to harmonize the principle of juror lenity with the jury’s recognized authority to acquit a defendant should a sentencing range appear to it disproportionate.

Download 10-cr-10310Gurley Mem

May 17, 2012 in Blakely in Sentencing Courts, Booker and Fanfan Commentary, Booker in district courts, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, May 14, 2012

Professor Bowman's latest potent pitch for a Booker fix

I have long respected (and even have sometimes agreed with) Frank Bowman's informed perspectives on federal sentencing policy and practice.  Thus I am pleased to see his latest and greatest advocacy for reform of the post-Booker system now available on SSRN.  This latest piece, which is forthcoming in the Federal Sentencing Reporter, is titled "Nothing is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System."  Here is the abstract:

This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.

First, the post-Booker advisory system is conceptually indefensible.  It retains virtually every feature excoriated by critics of the original sentencing guidelines.  Its extreme ‘advisoriness,’ while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place.  More importantly, the post-Booker system does not solve the biggest problem with the pre-Booker system — that its architecture and institutional arrangements predisposed the Commission’s rule-making process to become a one-way upward ratchet which raised sentences often and lowered them virtually never.  Its sole relative advantage — that of conferring additional (and effectively unreviewable) discretion on sentencing judges — is insufficient to justify its retention as a permanent system.

Second, there exist a number of constitutionally permissible alternatives to the court-created Booker system, one of which — that originally proposed by the Constitution Project and more recently endorsed by Judge William Sessions, former Chair of the U.S. Sentencing Commission — is markedly superior to the present system.

Third, the difficult problem is not designing a sentencing mechanism better than either the pre- or post-Booker guidelines, but ensuring that such a system, once in place, does not replicate pre-Booker experience and become a one-way upward ratchet prescribing ever higher sentences.  I offer suggestions about how this difficulty might be solved. However, I concede both the difficulty of this problem and the justice of the concern that, however imperfect the advisory system, it may be the best that can be achieved given the present constellation of institutional and political forces.

May 14, 2012 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, April 25, 2012

Fascinating comments from Justice Alito about "most academic" Supreme Court

Thanks to a link from How Appealing, I saw this press release from Columbia Law School titled "U.S. Supreme Court Justice Samuel Alito Says Pragmatism, Stability Should Guide Court." As the title hints, there is much of interest in what Justice Alito had to say at Columbia Law School’s conference on Burkean Constitutionalism.  And I found these passages from the press release especially noteworthy:

In his lunchtime speech, Alito wrested Burke’s legacy from the realm of theory. “He was not a theorist, and I am not a theorist,” Alito said, before distinguishing himself from other members of the current Supreme Court.  “I feel almost outnumbered,” he said, noting that the Court has four former professors.  “The Supreme Court these days is the most academic in the history of the country.  We’re at a tipping point where we might tip into the purely theoretical realm.”...

For Alito, the virtue of Burke is stability: If judges are bound to respect prior decisions, he said, they’re less likely to risk the unintended consequences of “ill-considered judicial innovations.”

Sticking to established rules, Alito said, is good policy for judges who make decisions under isolated conditions and with limited resources.  He noted that judicial decisions “are discrete exercises of individual judgment, so they are more prone to error or ideological manipulation."

I am inclinded to suspect that Justice Alito might be thinking particularly of Blakely and Booker when he talks about “ill-considered judicial innovations.”  I am also inclinded to wonder whether and how these comments provide a tea leaf of sorts concerning how Justice Alito is approaching all the blockbuster cases still pending on the SCOTUS docket this Term.

April 25, 2012 in Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, April 03, 2012

"Racial Disparities, Judicial Discretion, and the United States Sentencing Guidelines"

The title of this post is the title of this new empirical paper available via SSRN authored by Joshua Fischman and Max Schanzenbach on a topic that has already generated significant conflicting empirical analyses and that is always of interest to federal sentencing policy-makers.   Here is the abstract:

The United States Sentencing Guidelines were instituted to restrict judicial discretion in sentencing, in part to reduce unwarranted racial disparities.  However, judicial discretion may also mitigate disparities that result from prosecutorial discretion or Guidelines factors that have disparate impact.  To measure the impact of judicial discretion on racial disparities, we examine doctrinal changes that affected judges’ discretion to depart from the Guidelines.  We find that racial disparities are either reduced or little changed when the Guidelines are made less binding.  Racial disparities increased after recent Supreme Court decisions declared the Guidelines to be advisory; however, we find that this increase is due primarily to the increased relevance of mandatory minimums.  Our findings suggest that judicial discretion does not contribute to, and may in fact mitigate, racial disparities in Guidelines sentencing.

April 3, 2012 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Wednesday, March 28, 2012

A little talk about Booker remedy when debating ACA severability

I am listening to the oral arguments of this morning's health care litigation (available at this link), in which the question on tap concerns whether and how SCOTUS ought to strike down other parts of the Affordable Care Act if it strikes down the individual mandate as unconstitutional.  In two parts of that argument, the remedy adopted in Booker gets mentioned.  Not surprisingly, the Justices and the advocates seem to give different spins to what the Court did in the remedy portion of Booker and what that means for severability doctrines.

March 28, 2012 in Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, March 13, 2012

Notable comments on sentencing policy reform from AAG Breuer

This DOJ release, headlined "Assistant Attorney General Lanny A. Breuer Speaks at the Benjamin N. Cardozo School of Law," provides the text of a speech given today by the head of Justice Department's Criminal Division. Intriguingly, the text includes a lot of sentencing reform discussion and merits a full read.  These notable passages seemed especially worth highlighting:

Although the Criminal Division’s primary mission is to investigate and prosecute crime, because we are in Washington, D.C., the division also plays a unique role in the development of criminal law policy. And I consider it to be a critical aspect of the Division’s work to advocate for reforming those aspects of the criminal justice system that we view as not working, or in need of improvement....

Today, I want to tell you about one example in particular, involving sentencing policy....

Twenty-six years ago, in the Anti-Drug Abuse Act of 1986, Congress instituted a stringent sentencing policy that created, among other things, an extreme difference in sentencing policy for crack cocaine and powder cocaine offenses....

Data compiled by the U.S. Sentencing Commission indicated that, among other effects, the extreme disparity in sentences for crack and powder cocaine offenses had a disproportionate impact on African Americans.  For example, in 2006, according to the commission, 82 percent of individuals convicted of federal crack cocaine offenses were African American, while just 9 percent were white.

As a result, the crack and powder cocaine regime came to symbolize a significant unfairness in the criminal justice system, and the Sentencing Commission and others began advocating many years ago for the 100:1 ratio to be reduced.  But it was not until 2010, when President Obama signed the Fair Sentencing Act, or FSA, into law that something was done about it.

Early in this administration, the Justice Department began advocating to completely eliminate the disparity in crack and cocaine sentencing, and reduce the ratio to 1:1. Indeed, days after I joined the Justice Department, in 2009, I was proud to testify before Congress on behalf of the administration in favor of eliminating the disparity.

The FSA reduced the ratio from 100:1 to 18:1. In doing so, it did not go as far as we had urged. But the act was nevertheless hugely important, going a long way toward eliminating the appearance of racial bias in the sentencing system.

Of course, our work in the area of sentencing is not done.  As I’m sure many of you know, the U.S. Sentencing Guidelines went into effect in 1987, prescribing specific sentencing ranges for particular crimes, depending upon the defendant’s criminal history and other factors.  In 2005, however, the U.S. Supreme Court decided in the case of Booker v. United States, that federal judges could treat the sentencing guidelines as advisory only. And there is evidence that unwarranted sentencing disparities have been increasing in recent years. One area among others in which we have seen significant such disparities is financial fraud.  With increasing frequency, federal district courts have been sentencing fraud offenders -- especially offenders involved in high-loss fraud cases -- inconsistently and without regard to the federal sentencing guidelines.  For example, we have seen defendants in one district sentenced to one or two years in prison for causing losses of hundreds of millions of dollars while defendants in another district receive 10 or 20 years in prison for causing losses a fraction of the size.  This is another challenge in sentencing that we will need to address in the coming months and years.

The Fair Sentencing Act is just one example, albeit a very important one, of many I could give you where Criminal Division lawyers and others in the department have worked hard to advance needed legislation and reform an aspect of the criminal justice system in need of repair.  Your own Benjamin Cardozo once said, “Justice is not to be taken by storm. She is to be wooed by slow advances.”  In Washington, certainly, change rarely comes quickly, and because it is always the product of compromise, usually no one gets exactly what they were hoping for.  That was indeed the case with respect to the Fair Sentencing Act.  At the same time, when you see what is involved in moving a dramatic piece of legislation, or reforming something as fundamental as sentencing policy, such “slow advances” represent enormous achievements.

I adore the notion of seeking to "woo" Lady Justice though slow advances; extending the metaphor, I think we might well view debates over sentencing reform as a product of a number of different suitors pitching woo at Lady Justice.

March 13, 2012 in Booker and Fanfan Commentary, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, February 20, 2012

Brief reflections on federal sentencing policy, practice and politics after USSC hearings

I have many intricate "micro" observations about last week's two US Sentencing Commission hearings, but I fear I will not soon be able to find time to write up (m)any of them for this space.  But I think I can quickly here articulate and briefly explain my "macro" take away from both hearings: federal sentencing laws and their prospects for reform still suffer greatly from (and may always suffer from?) harmful disconnects between sound sentencing policies and practices and sound-bite sentencing politics.  Let me (too briefly) explain what I mean:

1.  There was a rough consensus from the written testimony submitted on the first hearing day concerning penalties for child pornography offenses (still available via links in this official agenda) that, as a matter of policy and practice, federal sentencing law in this area is functioning quite poorly.  (This is hardly surprising: the potential dysfunction of the existing CP guidelines has been stressed by courts and commentators for many years now.)  But I suspect and fear it will prove very challenging for the US Sentencing Commission or the Justice Department to engineer any quick and/or sound fix because the sound-bite politics of this issue make it almost impossible to propose lower sentences for anyone who downloads kiddie porn, even the most mitigated of offenders who already faces many years in prison under existing law.  (This is the same sad political reality that prevented any real change to the 100-1 crack/powder ratio for more than a decade after essentially everyone agreed that ratio was terribly misguided and racially unjust.)

2.  There was a rough consensus, at least coming from all the judges, prosecutors, defense attorneys and public policy groups (whose written testimony is still linked via this official agenda here), that the broader post-Booker sentencing structure is, as a matter of policy and practice, functioning reasonably well all things considerd.   But I suspect and fear the US Sentencing Commission and the Justice Department will feel very pressured to urge fixes to the post-Booker system because powerful Republican voices in Congress seem to relish the sound-bite politics of complaining about the possible unwarranted and/or racial disparities in federal sentencing.  (But, tellingly, these same Republican voices were often disturbingly silent for years concerning proposed crack sentence reductions that the USSC long said were clearly needed to reduce unwarranted and racial sentencing disparities.)

3.  Rigorous quantitative analysis of the post-Booker sentencing system done by both the US Sentencing Commission and outside researchers are already playing a large role in the policy and political debates.  But I fear that even the best quantitative research (like the Commission's own data runs) too often fails to break down categories of cases/regions for analysis in order to assess the impact of sets of outliers.  For example, the case-processing data differences in the CP cases and the larceny cases are profound in all sorts of ways, as are the difference in even the three judicial districts of North Carolina, but so much of the research and reporting necessarily has to lump many of these "local" stories together.  For this reason (and many others), I think the USSC and outside researchers ought to be devoting a lot more time to sophisticated qualitative research with a focus on particularly important "local" stories.

I could go on (and may in future posts), but for now I hope lots of thoughtful folks — whether following the USSC hearing closely or not — will share comments on my numbered observations above OR more generally about what they see in the future for federal sentencing reform debates.

Some recent related posts:

February 20, 2012 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, February 18, 2012

Highlights from DOJ testimony to US Sentencing Commission about federal sentencing concerns

I cannot even hope to summarize all the interesting stories emerging from the US Sentencing Commission hearing on Thursday concerning the operation and potential reform of the modern post-Booker federal sentencing system.  But, in addition to once again urging all federal sentencing fans to review all the written testimony from the hearing (linked via the official agenda here), I can also highlight some notable passages from this written testimony from the Justice Department.  Though the entire testimony ought to be reviewed closely, these passages especially caught my attention:

We are now on a funding trajectory that will result in more federal money spent on imprisonment and less on police, investigators, prosecutors, reentry, and crime prevention.  At the same time, state and local enforcement and corrections budgets are under severe strain.  Taken together, and given the scale of current federal imprisonment penalties, we do not think this trajectory is a good one for continued improvements in public safety.

Prisons are essential for public safety.  But maximizing public safety can be achieved without maximizing prison spending.  And in these budget times, maximizing public safety can only be achieved if we control prison spending.  A proper balance of outlays must be found that allows, on the one hand, for sufficient numbers of investigative agents, prosecutors and judicial personnel to investigate, apprehend, prosecute and adjudicate those who commit federal crimes, and on the other hand, a sentencing policy that achieves public safety correctional goals and justice for victims, the community, and the offender.

This is all relevant to federal sentencing, because the federal prison population remains on an upward path.  Given the budgetary environment, this path will lead to further imbalances in the deployment of justice resources....

One way to reduce prison expenditures is to reduce the total number of prisonyears that inmates serve in the Federal Bureau of Prisons.  To that end, the Department has proposed limited new prison credits for those offenders who behave well in prison and participate in evidence-based programs with proven records of reducing recidivism.  We believe this is one example of a responsible way to control prison spending while also reducing reoffending.... 

We believe mandatory minimums in certain areas are not only reasonable, but are an essential law enforcement tool to increase public safety and provide predictability, certainty and uniformity in sentencing.  At the same time, we recognize that when the severity of mandatory minimum penalties is set inappropriately, consistent application is often lost and just punishment may not be achieved.  The Commission’s report reached the same conclusion.

There are also interesting passages about post-Booker disparities and the role of offender circumstances at sentencing in this DOJ testimony.  And all of the themes in this testimony seem certain to play a role if (and when?) talk of significant sentencing reform (and even a big "Booker fix") moves forward in the US Sentencing Commission and/or in Congress.

Some recent related posts:

February 18, 2012 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, February 09, 2012

"Don't Blame Judges for Racial Disparity"

The title of this post is the headline of this new commentary appearing at The Huffington Post authored by Julie Stewart, the President of Families Against Mandatory Minimums (FAMM). Here is how it starts:

It's almost too much to bear.  After decades of defending some of the most racially discriminatory mandatory minimum sentencing laws ever written, some lawmakers on Capitol Hill and their allies are now saying concern about racial disparity is motivating them to "fix" the federal sentencing guidelines. A new comprehensive report out of the University of Michigan makes clear that these legislative efforts are as misguided, as their proponents' stated concerns are transparently disingenuous.

In 2010, the U.S. Sentencing Commission analyzed recent sentencing data and concluded that the disparity in sentences received by blacks and whites was growing -- particularly after mandatory guidelines became advisory. The Commission warned against using its data to conclude judges were exercising discretion in a racially biased manner. And its warning seemed well-advised when a more rigorous, follow-up study by the University of Pennsylvania contradicted key Sentencing Commission's findings.

Undeterred, those seeking to restore mandatory guidelines insist that judges are to blame for unwarranted racial disparity in sentences.  They seek to pass legislation to reverse the effect of the Supreme Court's decision in United States v. Booker, which held that the federal sentencing guidelines should advise judges, but not bind them.  Thus, to the well-worn charge that federal judges (half of whom, inconveniently, were appointed by Republican presidents and approved overwhelmingly by Republican senators) are soft on crime, we now hear that some of these judges are racists, too.

Mandatory sentencing guidelines, just like mandatory minimum sentencing laws, transfer discretion from judges to prosecutors. Prosecutors, already the most powerful players in the criminal justice system, get to choose not only who to charge and what crimes to charge, but they also get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree. If this extraordinary concentration of power in the hands of one group of federal officials does not convince the public to reject a restoration of mandatory guidelines, the findings of this comprehensive new study should.

"Racial Disparity in Federal Criminal Charging and its Sentencing Consequences" is the understated title of the incredibly important and timely study conducted by Sonja Starr, a law professor from the University of Michigan, and M. Marit Rehavi, an economics professor from the University of British Columbia. The study, the first of its kind, looked at 58,000 federal criminal cases -- at every step where discretion and bias might arise, from arrest through sentencing -- in order to determine the impact of decisions made by prosecutors (rather than judges) on racial disparity in sentence lengths.

In particular, the study focused on how whites and blacks arrested for the same offense were ultimately sentenced. The researchers found significant black-white disparities in the overall severity of initial charges, but saw the most dramatic differences when they examined charges carrying mandatory minimum sentences. Black men were on average more than twice as likely be charged by prosecutors with a crime that carried a mandatory minimum sentence as were white men, even after holding other factors constant.

Those initial charging differences led inexorably to sentencing differences. The gap in sentence lengths between black and white offenders is largely explained by differences in criminal records and in the arrest offense. When you control for those two factors, and others such as gender, age, and district, however, the difference between sentences narrows to almost 10 percent on average. Because 10 percent is still a significant disparity, the authors looked for its cause(s). They found that the gap was caused by differences in the severity of the initial charge. Further, they found that this disparity was largely a result of the prosecutors' decisions to file mandatory minimum charges against blacks more often than against whites, even when the conduct was the same and the mandatory minimum bearing charges could have been filed against whites.

Some recent related posts:

February 9, 2012 in Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (33) | TrackBack

Wednesday, February 08, 2012

Two big public hearings on tap for US Sentencing Commission next week

As reported on its website and in official notices here and here, the US Sentencing Commission has planned two full-day public hearings for next week in DC.

The first day of hearings, slated for February 15 (with the official agenda here), is "for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing." The second day of hearings, slated for February 16 (with the official agenda here), is "for the Commission to gather testimony from invited witnesses on federal sentencing options pursuant to United States v. Booker."

I have the great honor and privilege of being one of the invited witnesses for the second day of these hearings, and I hope to post my written testimony once I finish writing it.  I also expect the USSC will post the submitted written testimony of other witnesses before long, too.  In the meantime, readers are welcome (and, in fact, encouraged) to make predictions about what various witnesses are likely to say to the Commission on these topics and what member os the USSC might say in response.

February 8, 2012 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, January 31, 2012

NPR covers latest debates over post-Booker federal sentencing systems

This new piece featured as part of NPR's show Morning Edition, and given the headlined "GOP Seeks Big Changes In Federal Prison Sentences," effectively reviews some of the recent debates in Congress and elsewhere over the current state of federal sentencing.   Drawn from last year's House hearing and a recent ACS panel (in which I had the honor participating), the piece notes that a few folks are vocally complaining about how advisory guidelines are functioning.  Here is how the piece begins:

Every year, federal judges sentence more than 80,000 criminals. Those punishments are supposed to be fair — and predictable.  But seven years ago, the U.S. Supreme Court threw a wrench into the system by ruling that the guidelines that judges use to figure out a prison sentence are only suggestions.

Republicans in Congress say that's led to a lot of bad results. They're calling for an overhaul of the sentencing system, with tough new mandatory prison terms to bring some order back into the process.  Rep. James Sensenbrenner, a Republican from Wisconsin, brought up the subject at a recent hearing.

"A criminal committing a federal crime should receive similar punishment regardless of whether the crime was committed in Richmond, Va., or Richmond, Calif., and that's why I am deeply concerned about what's happening to federal sentencing," Sensenbrenner said.

As astute readers know, the "wrench" thrown into the federal guideline system by the Supreme Court in Booker just happened to be the protections of the Fifth and Sixth Amendments of the Bill of Rights; we could return to the "old" system of mandatory guidelines if and whenever Congress and prosecutors agreed that factors within the guidelines would have to be proven up consistent with the constitutional requirements.  

Sensenbrenner failed to push forward on such a legislative response in Booker (which has been urged by members of the Supreme Court as diverse as Justices Scalia, Souter, Stevens, and Thomas) throughout 2005 and 2006 when the GOP controlled both houses of Congress and the executive branch.  That reality leads me to view much of the recent criticisms as mostly "big bad wolf" huffing and puffing with just false threats to blow down the post-Booker system.

For a more fulsome review of these issues and the broader debate, the extended ACS discussion from which some of this NPR piece is drawn is available at this link.

Some recent related posts about the House hearing and other post-Booker debates:

January 31, 2012 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Thursday, January 19, 2012

In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"

As detailed in this official notice, I have the honor of being in Washington DC this afternoon to participate in an ACS/ACLU event on federal sentencing.  Here is the set-up by the hosts:

On Thursday, January 19, 2012, at 1:30 p.m., ACS and the ACLU will host The Relevancy and Reach of the U.S. Sentencing Commission.  During the height of the War on Drugs, in 1984, the U.S. Sentencing Commission was created.  The intent behind the Commission was to provide uniformity to the sentences –- many of them drug sentences -- that were imposed upon federal criminal offenders.  However, instead of eliminating racial and other disparities as intended, the mandatory guidelines perpetuated disparities and took away judicial discretion.  Judges’ hands were tied, with many of them forced to render sentences that they felt were unfair and unjust, especially when it came to sentencing for crimes associated with crack cocaine.

In 2005, the U.S. Supreme Court deemed these federal sentencing guidelines in violation of the Sixth Amendment in U.S. v. Booker.  While the Commission could continue to advise on proper sentencing, the guidelines would be advisory. In the years that have followed, the Commission has continued to play a prominent role in sentencing, most recently generating attention for its decision this past summer to make federal crack cocaine sentencing guidelines retroactive after the enactment of the Fair Sentencing Act.  In the wake of this controversial decision, questions surround the Commission, namely, does the Commission remain valid and legitimate in purpose today?

And here is a rough sketch of what I am planning to say on the panel:

The US Sentencing Commission remains quite valid and legitimate, but it should, at this important moment in federal sentencing law and policy, shift its focus to worrying much, much more about unwarranted sentencing severity while worrying much, much less about unwarranted sentencing disparity. Indeed, evidence of sentencing disparity is always contestable and often contested, and efforts to reduce disparities through new sentencing rules often will produce unintended consequences (in part because modern prosecutorial discretion likely impacts disparities much more than judicial discretion). Moreover, and perhaps most importantly, unwarranted sentencing severity is usually the root cause of unwarranted sentencing disparity: white-collar, drug and child porn sentencings are the settings where, because the guidelines can often suggest crazy high prison terms, different judges make different judgments about whether and how much to vary below the applicable guideline range. As a practical matter, reducing unwarranted sentencing severity is probably going to be the most effective way to reduce unwarranted sentencing disparity.

January 19, 2012 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

New paper say there "is no need for a 'Booker fix'; Booker is the fix."

The quote in this title of this post comes from the end of the abstract of this new paper by Amy Baron-Evans and Professor Kate Stith entitled "Booker Rules."  Here is the full abstract:

For the first time, this paper examines the fateful 1987 statutory amendment that was interpreted by the Supreme Court to authorize the Sentencing Commission to make its guidelines, policy statements, and commentary binding on sentencing judges. The mandatory nature of the Commission's product ultimately led the Court to hold in United States v. Booker (2005) that the guidelines were unconstitutional.

The advisory guideline system wrought by Booker has brought balance to federal sentencing and has reduced unwarranted disparity.  The proposal of Judge (and former Commission Chair) William K. Sessions for Congress to reenact mandatory guidelines raises substantial constitutional issues, including separation-of-powers issues not previously addressed by the Supreme Court.  The recent proposals of the Commission to establish more tightly constraining Guidelines would appear to violate Booker and subsequent cases.  The purported bases for these proposals, in particular a Commission study concluding that racial disparity has increased, are unproven and methodologically flawed.  There is no need for a "Booker fix"; Booker is the fix.

January 19, 2012 in Booker and Fanfan Commentary, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (2) | TrackBack

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.

December 12, 2011 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, November 28, 2011

Some notable responses to recent DOJ post-Booker disparity complaints

Regular readers with a special interest in federal sentencing may recall this posting from a few weeks ago noting a public speech by Assistant Attorney General Lanny Breuer in which he lamented increasing federal sentencing disparity and asserted that "many prosecutors, defense lawyers, and judges agree that more and more, the length of a defendant’s sentence depends primarily on the identity of the judge assigned to the case, and the district in which he or she is in."  I have gotten a sense that this speech has generated some extra amounts of notable buzz in the federal sentencing world, and it has also now also generated some notable responses.

One such response comes from Mary Price, the Vice President and General Counsel of Families Against Mandatory Minimums (FAMM), via this commentary piece at the website Main Justice.  The piece carries the headline "It's Not the Judges," and here are the four numbers points that appear in this piece:

  1. Prosecutors share responsibility for different guideline adherence rates among districts
  2. Different federal districts are just that: different
  3. Flawed guidelines, not flawed judges, drive variance rates
  4. Sentencing rules drive racial disparity

Another response comes via a letter put together by a set of federal public defenders which can be downloaded below and starts this way:

As Federal Public Defenders, we read with interest the remarks you made before the American Lawyer/National Law Journal Summit in Washington, D.C. on November 15, 2011. We were heartened to see that you believe, as we do, that the significant prison population in both federal and state facilities is a tremendously important issue for all legal practitioners, whether or not they practice criminal law. But we read with some concern your statements regarding sentencing disparities between federal districts, particularly the three districts in which we serve....

We write because, as experienced practitioners in the districts you mention, we disagree that the disparities you identify have much at all to do with the sentencing judges involved.  Instead, we believe that these disparities have far more to do with the types of cases that arise in each district, and the prosecution policies that local federal prosecutors have chosen to address these cases.

Download Letter to Lanny Breuer from defenders

November 28, 2011 in Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

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:

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

Early reactions to the (too) quick House hearing on post-Booker sentencing

Less than two hours after it started, today'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," has come to a close. As detailed in prior posts linked below, a lot happened in the 100 minutes of this hearing, though I seriously doubt that much is going to happen legislatively as a result of what just transpired.  Without too much reflection, here are a few quick reactions:

1.  There is clearly lots of bad blood among members of this subcommittee as reflected in a shouting match that broke out between Rep. Jackson Lee and Rep. Sensenbrenner

2.  Other than a precious few members, it is not obvious that many even on this subcommittee care too much about this subject.  Only about one-quearter of the 20 members of the subcommittee appeared to be in attendance and only a precious few asked questions suggesting they even understood how modern federal sentencing works.

3.  The absence of a Justice Department representative was both telling and disappointing, especially because it is very hard to predict how federal prosecutors would view proposals to abolish the US Sentencing Commission or to have a Blakely-compliant mandatory guideline system.

4.  The USSC's apparent recommendations to Congress to give reasonableness review more bite via statutory reform is very sound and very important and very constitutionally challenging, all of which in turn leads me to predict/fear that it is very unlikely to happen anytime soon.

5.  A lot of worrisome "smaller" federal sentencing issues that could benefit most from congressional oversight and legislative reform — the application of the Armed Career Criminal Act, child porn victim restitution awards, fast-track departures, the persistent growth of the federal criminal docket — did not even get mentioned.

6.  We desparately still need refined and consistent nomenclature to describe different potential kinds of federal guideline systems other than just advisory, presumptive and mandatory.  I especially urge readers to help me come up with a labels other than "presumptive" to describe the kind of revised advisory guideline systems — advisory with bite? advisory with great weight? — to describe what the USSC now seems to be advocating Congress to enact.

I could go on and on and on, but I have now said more than enough and need to get off the grid for awhile just to make sure my head does not explode as I have flash-backs from some of the worst moments of this morning's House hearing.

Some recent related posts about the House hearing:

October 12, 2011 in Blakely in Legislatures, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (8) | TrackBack

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:

  1. Congress should make reasonableness review tougher, especially for non-guideline sentences
  2. Congress should clarify statutory directives that are in tension
  3. 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...

October 12, 2011 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, September 26, 2011

New call for a (long overdue?) legislative and USSC fix to Booker

Matt Miner, who not long ago served as former Republican staff director for the Senate Judiciary Committee (and now is a partner at White & Case), has this notable new commentary on federal sentencing in today's National Law Journal.  The piece is headlined "It's time to fix our sentencing laws; Years after the Supreme Court put the ball in Congress' court, commission can finally spur action."  Here are excerpts:

The U.S. Sentencing Commission is confronting a challenge to its own existence.  Critics of the commission's budget and inaction on sentencing reform have begun to call for massive cutbacks and even full elimination of the commission.  Yet unlike other agencies that face similar crises, the commission has the power to propose reforms to justify and strengthen its role.

For more than six years — since the U.S. Supreme Court invalidated parts of the federal law governing sentencing policy in Booker v. U.S. — courts have increasingly disregarded the federal sentencing guidelines.  At the same time, racial disparities have increased. The Supreme Court called for policymakers to respond, stating, "The ball now lies in Congress' court."  But more than a half-decade later, neither Congress nor the commission has acted.

The time for action is now, and the commission has the opportunity to urge changes to restore order to our system.  Given the impact of the commission's reports on crack-cocaine sentencing — resulting in passage of the Fair Sentencing Act — a commission-led Booker-fix proposal could be a game changer....

Since Booker, courts have drifted farther from guideline-based sentences, with many courts applying the guidelines less than half the time.  Even more troubling, racial disparities in federal sentencing are on the rise.  According to a recent commission report on demographic disparities post-Booker, the difference in sentences given to black versus white defendants has "been increasing steadily since that decision."

Sadly, racial and educational disparities have grown in a system that is increasingly determined by the judge a defendant draws.  Making matters worse, appellate judges find themselves out of the sentencing business due to the lack of a meaningful appellate standard and the broad discretion retained by district courts....

The appetite for reform appears to have returned.  Conservative law professor William Otis has called for a rewrite of the 1984 Sentencing Reform Act to once again make the guidelines mandatory, albeit with certain enhancements decided by a jury.  And past commission chairman William Sessions, a federal judge, has proposed a grand reform to broaden the discretion given judges under the guidelines, while also restoring certainty and consistency to the system by making the guidelines "presumptive" rather than merely "advisory."

Although such reforms may take time, the commission should immediately recommend basic reforms such as codifying an appellate standard to replace the language struck down by Booker.  The Supreme Court made clear that the standard that existed before the 2003 Feeney amendment would withstand constitutional challenge, and that standard is a worthwhile place to start.  More recent Supreme Court decisions, including U.S. v. Rita, provide further components that could be added to the old appellate review standard, including a presumption of reasonableness for properly calculated sentences within the guidelines.  Additionally, the commission should dem­and reforms that require judges to provide a heightened justification for any major departure from the prescribed guideline sentence.

In the absence of congressional action, federal courts will continue to struggle to apply constitutional principles to fill gaps in the sentencing statute.  In essence, courts will be left to legislate from the bench.

I share Mr. Miner's interest in having the US Sentencing Commission and Congress playing a much more active role in managing and bringing greater legal order to the post-Booker sentencing system.  I also think the "lack of a meaningful appellate standard" is a part of the systemic problem with the status quo.  But I think this commentary overlooks at least three critical realities that must play a central role in any future sentencing reform work by the USSC and Congress:

  1. Crime rates are at historic low levels and have been continuing to trend down since Booker (basics blogged here and here);
  2. Federal prison populations are at record high levels, and the resulting overcrowding and costs must be addressed as soon as possible (as the US Justice Department stressed in its recent letter to the USSC);
  3. Before Booker and perhaps now even more after Booker, the defendant's luck in which prosecutor he draws matters a lot more than what judge he draws (which, as noted here, USSC stats always show).

For me, these three critical realities suggest (at least) three essential guideposts for future federal sentencing reform: (1) "Do no harm": we cannot figure out what is "working" with crime reductions, but we should make extra sure any federal sentencing changes do not reverse national crime trends; (2) "Reduce federal incarceration": we cannot afford stuffing a lot more federal prisoners into limited (and expensive) prison space, and thus we should make extra sure any federal sentencing changes do reverse the system's hyper-incarceration tendencies; (3) "Better regulate prosecutors first": initial USSC efforts to limit the impact of prosecutorial discretion have not really worked, and the USSC and Congress ought to start with prosecutorial guidelines/regulations if there is a genuine concern with enduring federal sentencing disparities.

September 26, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, July 11, 2011

"The Constitutionality of Post-Crime Guidelines Sentencing"

The title of this post is the title of this new piece by Benjamin Holley, an Illinois Assistant State's Attorney, which is now available via SSRN. Here is the abstract:

United States v. Booker famously excised the mandatory provisions of the federal Sentencing Guidelines, making them “effectively advisory.”  Judges are still required to calculate the applicable Guidelines range, however, and will rarely be overturned if they impose a within-Guidelines sentence.  The question thus arises: if the Guidelines are not formally mandatory, but remain the de facto basis for sentencing, does use of post-crime Guidelines violate the Ex Post Facto Clause?

A circuit split on this issue has developed, with the Seventh Circuit authorizing the use of post-crime Guidelines and the D.C. Circuit holding that such use can violate the ex post facto prohibition.  This article examines both the legal standards and the empirical evidence, ultimately arguing that the use of post-crime Guidelines does not violate the Ex Post Facto clause.

July 11, 2011 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Friday, June 10, 2011

"The Slow, Sad Swoon of the Sentencing Suggestions"

The title of this post is the title of this notable new article by (frequent SL&P commentor) William Otis appearing in the June 2011 issue of the Federalist Society's Engage publication. Here is how the piece starts and ends:

The Guidelines are a lost cause.  When they became optional after Booker, the Sentencing Commission lost the central purpose for which Congress established it.  Yet each year it spends more money making suggestions district courts now follow only little more than half the time.  It's time for the Commission to go, and for Congress to re-write the Sentencing Reform Act....

With apologies to Justice Scalia’s Booker dissent, the Commission has assumed all the value of a cookbook listing advisory-only ingredients, but telling the chef to remember that, in the end, he can use pretty much whatever pops into his head.  As the Supreme Court reminded us in Nelson, we are now so far down Booker’s path that district judges cannot so much as presume a Guidelines sentence is reasonable, much less correct, and still less binding.

By its incomprehensibly nonchalant attitude toward restoring the determinate sentencing system it was created to produce, the Commission became an anachronism the day Booker was decided.  In the era of desperately needed government frugality, taxpayers shouldn’t have to continue to shell out millions for sentencing suggestions.

I strongly disagree with Bill's basic premise that the US Sentencing Commission is an anachronism in our world of advisory guidelines after Booker.  In addition to within-guideline sentence still being imposed in 55% of all cases — which was over 45,000 sentencing in Fiscal Year 2010! — the guidelines remain as a central benchmark in the other 45% of the cases (among which a below-guideline sentence is most often urged by a prosecutor to reward cooperation or a super-quick plea).  In other words, even six+ years after Booker, the now-advisory guidelines still control sentencing outcomes in most federal criminal cases and still significantly impact sentencing outcomes in all federal cases.  Suggesting the the guidelines and the agency that controls them are no longer that important just does not jibe with enduring federal sentencing realities.

That said, I strongly agree with a broader theme in Bill's piece here that both the Sentencing Commission's work and the Sentencing Reform Act's terms ought to be subject to significant post-Booker changes.  I especially like this passage/suggestion in this piece:

[I]if the Sentencing Commission is to remain in operation (see subsequent discussion), it should forthwith require of itself a crime-and-cost impact statement setting forth a line-by-line estimate of the real-world consequences any new guideline or policy statement is likely to produce.

It’s too obvious for argument that a government agency, before taking action, ought to understand, as well as disclose to the citizens, what effects its proposals are likely to have on them. For years the law has required environmental impact statements for proposed construction projects, and there is no reason the same principle should not be applied to proposed changes in sentencing. The human environment counts, too.

In particular, the Commission will have to refine and expand its present incarceration estimates. If the Commission proposes a change likely to result in higher sentences, it should study how many more years of imprisonment, in the aggregate, this change would produce and tell the public what it’s going to cost; the day has passed when the taxpayers can foot the bill for every change, even if seemingly desirable.  Similarly, if the Commission proposes a change likely to result in lower sentences (e.g., its recent crack/powder equalization proposal, discussed subsequently), it should produce an estimate of the impact of the resulting additional crime.

Sounds good to me, especially if/when the USSC would put all its analysis on its website for others to see, consider, assess and debate.

June 10, 2011 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, March 04, 2011

Is Pepper starting to add spice to federal sentencing proceedings?

The significant ruling by the Supreme Court this week in Pepper (basics here) has already impacted a on-going federal sentencing articles and projects of mine, and I am wondering if and how the Pepperruling is impacting on-going federal sentencing proceedings.  I suspect more than a few litigants with pending sentencing appeals are filing letters of supplemental authority based on Pepper, and perhaps some district courts have already referenced the ruling in sentencing decisions.  (Recall that there are, on average, more than 300 federal sentencings taking place every day in federal courts around the nation.)

I hope readers might use the comments to this post to report on any early impact from Pepper, and I also hope anyone who come across a sentencing opinion that has some Pepper added will send it my way.

Related posts on the Pepper ruling by the Supreme Court:

March 4, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, March 03, 2011

Former Chair of US Sentencing Commission urging "presumptive guideline" Booker fix

Federal district judge William K. Sessions III, who served on the US Sentencing Commission for more than a decade and who was its Chair through the end of last year, has authored an important new paper about the present and future of post-Booker sentencing law and policy.  This paper, now available here via SSRN, is titled, "At the Crossroads of the Three Branches: the U.S. Sentencing Commission's Attempts to Achieve Sentencing Reform in the Midst of Inter-Branch Power Struggles." Here is the abstract:

During the past quarter-century, federal sentencing policy has been impacted by struggles among the three branches of government, with each branch possessing a legitimate stake in formulating the policy but at times exerting inordinate influence at the expense of the other branches.  The United States Sentencing Commission has faced -- and will continue to face -- enormous challenges in its mission to serve as the neutral expert at the intersection of the three branches regarding federal sentencing policy.

In the same manner in which the Commission has had to adjust to dramatic changes in the past (such as the PROTECT Act and the Supreme Court’s decision in Booker v. United States), I envision that additional changes will occur in the foreseeable future and the Commission will yet again be forced to adjust.  In particular, I predict that, despite allowing the “advisory” guidelines system created by Court to exist for over six years to date, Congress eventually will retool the current system because of growing sentencing disparities -- both inter-judge disparities and demographic disparities, the same type which caused bipartisan support for the Sentencing Reform Act of 1984.  With this in mind, and as a consequence of its unique vantage point of being at the crossroads of the three branches of government, the Sentencing Commission must assume a leadership role in developing an improved federal sentencing scheme that recognizes the legitimate interests of each branch.

I urge the Commission, working together with Congress and executive branch, to reformulate the guidelines in a manner that helps reduce unwarranted disparities while, at the same time, remove the main obstacle that has hindered lasting achievement of the aspirations of the SRA: the undue complexity and rigidity of the guidelines system, which have resulted in large part from congressional directives and draconian mandatory minimum statutes and which have caused increasing numbers of judges to resist (and, after Booker, in some cases entirely reject) substantial portions of the current guidelines. The Commission should streamline individual guidelines (primarily by reducing the amount of numeric aggravating factors in Chapters Two and Three) and also simplify the Sentencing Table in Chapter Five of the Guidelines Manual to provide for fewer and broader sentencing ranges.  To reduce unwarranted sentencing disparities, Congress should make the guidelines presumptive (rather than advisory) and provide for meaningful appellate review to generally keep sentences within the presumptive ranges (which also would make mandatory minimum statutory penalties unnecessary).  Finally, in order to comply with the Court’s decisions in Blakely v. Washington and later Booker, juries would be required to find aggravating facts that raise the “ceilings” of guideline ranges. Yet broader ranges and fewer aggravating factors likely would make such jury findings a relatively uncommon event.

Such a presumptive guideline system subject to meaningful appellate review would meet Congress’s and the executive branch’s valid desire to minimize disparate sentences being imposed on similarly situated defendants who committed similar offenses.  At the same time, however, broader sentencing ranges and fewer mandatory aggravating factors would allow sentencing judges to better account for individual offender and offense characteristics, thereby allowing judges to carry out their traditional role in determining fair and just sentences.

My proposed system would not be perfect; no sentencing system ever will come close to being perfect.  But it would be a genuine compromise that would provide something meaningful to all three branches.  At the very least, my proposal is intended to advance the dialogue regarding changes that are clearly needed.

I have heard a bit of buzz from some fans of the current post-Booker federal sentencing status quo that they were troubled to see the former USSC Chair actively urging a legislative Booker fix.  But especially in the wake of the federal sentencing ruling by the Supreme Court yesterday in Pepper (basics here), it is understandable that Judge Sessions and perhaps many others continue to be concerned that the broad discretion that Booker jurisprudence now affords sentencing judges could, in the words of this article, hinder what some consider the "lasting achievement of the aspirations of the SRA."    

March 3, 2011 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, March 02, 2011

SCOTUS opinion in Pepper shows how/when/why courts can reject the FSG

I am quickly working my way through the majority opinion of the Supreme Court in Pepper (basics here), and I am consistently impressed with how Justice Sotomayor's opinion is weaving its way through a range of post-Booker issues and various other aspects of modern federal sentencing law and practice.  Of particular note is a section highlighting the appropriateness of rejecting a policy statement within in the federal sentencing guidelines after Booker.  This section is set up with this important point that I suspect will become a central part of many future defense sentencing memos:

[O]ur post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views.  That is particularly true where, as here, the Commission’s views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted.

March 2, 2011 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

SCOTUS rules in Pepper, again stressing sentencing discretion after Booker

The Supreme Court handed down its biggest federal sentencing case of the Term to date, ruling in the Peppercase about the consideration of post-sentencing rehabilitation at a federal resentencing proceeding.  The full opinion is available at this link, and here are the (no-so-simple) basics of the ruling in terms of how the Justices voted:

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and GINSBURG, JJ., joined, and in which BREYER and ALITO, JJ., joined as to Part III.  BREYER, J., filed an opinion concurring in part and concurring in the judgment.  ALITO, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part.  THOMAS, J., filed a dissenting opinion.  KAGAN, J., took no part in the consideration or decision of the case.

Here is the key paragraph from the start of the opinion for the Court by Justice Sotomayor: 

We hold that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.  Separately, we affirm the Court of Appeals’ ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s prior sentencing.

The ultimate outcome here is not too surprising, but there seems to be a lot of "there there" in this opinion.  (For example, the first part of the opinion of the Court stresses the old 1949 Williams ruling and repeats over and over that federal judges even after modern sentencing reforms have broad discretion to consider all factors relating to the defendants.)  Blog posts will follow with some quick thoughts and perhaps some deeper thoughts in the hours and days ahead.

March 2, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, February 19, 2011

Great new article "celebrating" a quarter century of federal sentencing under the SRA

Inspired in part by my recent (serious!?!) post suggesting we ought to consider how IBM's Watson computer could aid sentencing decision-making, a couple of helpful readers pointed out this new article by J.C. Oleson in the University of Richmond Law Review titled "Blowing Out All the Candles: A Few Thoughts on the Twenty-Fifth Birthday of the Sentencing Reform Act of 1984." 

There are many aspect of this piece that make in a must-read this long weekend (even though there is something a bit mathematically peculiar about celebrating the 25th birthday of the SRA in 2011).  In light of my Watson post, I especially liked the passage spotlighting that "sociologist Max Weber imagined a kind of sentencing computer that would collect relevant facts and dispense a just sentence," and that "Marvin Frankel, the patron saint of sentencing guidelines, acknowledged that computers could be useful in bringing parity and fairness to sentencing."  The piece also includes these concluding thoughts:

Instead of basing federal sentences on political intuitions, the Commission could provide sentencing judges with meaningful data about which available sentences are most effective in reducing recidivism.  Improvements in risk assessment and technology have made it possible for the Commission to provide judges with data that were scarcely imaginable twenty-five years ago.

Even five years ago, given the acrimonious climate between Congress and the courts, it was difficult to envision a system of this kind.  But much has changed.  Given the Feeney Amendment, Booker and its progeny, and a growing interest in evidence-based policy, an actuarial sentencing information system is not only intellectually conceivable, but socially and politically viable.

So that, Sara, is my wish for your birthday: an actuarial sentencing information system that allows federal judges to impose data-driven sentences that are effective, efficient, and fair.  It is something that, at twenty-five, you might become.

February 19, 2011 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, January 03, 2011

Start your year by writing a commentary for the Federal Sentencing Reporter

Cover Wearing my hat as an editor of the Federal Sentencing Reporter, I am happy to reproduce a solicitation from the journal below (and I am eager to encourage regular readers to put together their views on federal sentencing ASAP):

Seeking Commentaries for Federal Sentencing Reporter Special Issue to provide “Advice for the U.S. Sentencing Commissioners”

Just before adjourning for the holidays, the U.S. Senate finally confirmed President Barack Obama’s nominee for chair of the U.S. Sentencing Commission, U.S. District Judge Patti B. Saris from the District of Massachusetts.  Judge Saris is new to the Commission, and she joins a Commission on which now two-thirds of the members began their service after the Supreme Court’s landmark ruling in Booker transformed the guidelines from mandates to advice.  To welcome the new Chair, the editors of the Federal Sentencing Reporter have decided to create a special Forum Issue to invite judges, lawyers and other sentencing practitioners, legal academics and sentencing researchers, to share “Advice for the U.S. Sentencing Commissioners.”

With the Justice Department recently expressing concern that “federal sentencing practice is fragmenting into ... dichotomous regimes” with some judges regularly following, and some judges regularly disregarding, the guidelines — and with Congress recently reworking drug sentencing through the passage of the Fair Sentencing Act — the new Chair and her fellow Commissioners surely have a sense of the challenges that lie ahead.  We hope that contributors to this special issue of FSR can help provide the Commission with many ideas and proposals for how the Commissioners should tackle these challenges and can best approach their responsibilities.

FSR seeks to publish short commentaries — ranging in length from a few paragraphs to a few pages — on federal sentencing topics in a form that provides “Advice for the U.S. Sentencing Commissioners.”  Commentaries could tackle big structural issues (such as how the Commission might return to its long-dormant guideline simplification project), smaller technical issues (such as how to revise loss calculation rules in the fraud guideline), or any other topic of interest or concern to modern federal sentencing policy and practice.

FSR hopes to publish in its April 2011 issue all proper commentaries submitted by January 18, 2011, and later submissions will be considered as space permits.  Submissions should be sent electronically to sentencinglaw @ with a clear indication of the author and the author’s professional affiliation.  All judges, lawyers and other sentencing practitioners, legal academics and sentencing researchers, and any others with an informed interest in federal sentencing law and practice are encouraged to submit a commentary.

January 3, 2011 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, December 20, 2010

New law review article on post-Booker disparity makes headlines in Boston

20judges_graphic1a__1292845527_0238 This morning's Boston Globe has this effective new article reporting on this important new academic research just published in the Stanford Law Review about post-Booker sentencing realities in the District of Massachusetts.  The Globe article is headlined "Disparity cited in sentence lengths; Analyst studying Hub’s US judges alleges bias risk," and it does a nice job summarizing the basic findings of Professor Ryan Scott's just published article titled "Inter-Judge Sentencing Disparity After Booker: A First Look."  Here are excerpts from the Globe coverage:

Since the US Supreme Court struck down mandatory sentencing guidelines five years ago in a landmark ruling, the difference in the average sentences of the most lenient and most severe federal judges in Boston has widened, according to a new study that says the trend threatens to undermine fairness.

Now that the guidelines are only advisory, the three most lenient jurists impose average prison sentences of slightly more than two years for all crimes, said the study in the Stanford Law Review published this week.  The two toughest impose average sentences double that.

The findings are troubling, said the author of the study, Ryan W. Scott, an associate professor at Indiana University’s Maurer School of Law, because they raise the specter of defendants getting markedly different punishments depending on the politics and biases of the judges before whom they appear.  "It offends our notions of equality and consistency and the rule of law that an offender’s sentence should depend on which judge happens to be assigned to the case," Scott, who analyzed 2,262 sentences imposed by 10 judges in Boston, said in an interview.

Scott uses the letters A through J to identify the judges when comparing sentencing patterns, and declined to identify them by name.  But he describes four judges who have increasingly set sentences at below guideline ranges as "free at last judges."  He calls two whose sentencing patterns have remained largely unchanged "business as usual judges."

The "free at last judges" sentence defendants below the guideline range three or four times as often as they did before the Supreme Court ruling — as much as 53 percent of the time, he wrote.  The "business as usual judges" sentence below the guidelines at essentially the same rate they did before the ruling — as little as 16 percent of the time.

Thus, the effect of a judge on sentence length has increased in importance, Scott said. But it still pales in comparison with other factors, he said, including the crime for which a defendant was convicted, the offender’s criminal history, and what the advisory sentencing guidelines recommend.

Two of the US district court judges whom Scott studied, Nancy Gertner and William G. Young, said they welcomed his analysis, a draft of which has been circulating in legal circles for several months.  But both judges, whom Scott thanks in the 68-page article for cooperating, said he gives short shrift to the importance of tailoring sentences to individual defendants....

Chief Judge Mark L. Wolf, the top judge in the Massachusetts district court, said he has no idea which judge he is in the study.  But he acknowledged that he has increasingly sentenced some defendants, particularly those accused of dealing crack cocaine, below the guideline ranges since the framework became advisory, he said.  Wolf is among many federal judges who have long criticized the disparity between the harsh punishments for dealing crack and the less severe penalties for powdered cocaine, a disparity the federal government has narrowed in recent years.

Although Wolf has sentenced more drug offenders to less than the guidelines recommend in recent years, he said, he has increasingly sentenced white-collar offenders to more than the guidelines advise....

The Supreme Court rulings [in Booker and its progeny] transform[ed] what had been a mandatory framework into an advisory one.  But that has caused the difference in the length of the average sentence imposed by the most severe and most lenient judges in Boston to grow, Scott writes.

Before the Booker case in 2005, the difference stood at 15 months, in cases where crimes carried no mandatory minimum sentences, according to Scott’s findings. Since the three Supreme Court rulings, the difference has grown to almost 40 months.  "I’m just pointing out that the differences among judges have become more stark since Booker, and that’s a worrying development," Scott said.

Another federal judge in Boston, Patti B. Saris, has been nominated by President Obama to be a member and chairwoman of the Sentencing Commission.  The Senate Judiciary Committee recently voted, 18-1, to confirm her nomination.  The full Senate is expected to vote shortly.

Even the most casual follower of federal sentencing developments since Booker should not be surprised by the findings in the Scott study.  Indeed, Justice Breyer himself candidly acknowledged when he invented the Booker advisory guideline remedy that this system likely would increase disparity, and he stressed that it was up to Congress to decide whether an alternative system to the one he was creating to deal with constitutional problems with sentence-enhancing judicial fact-finding was to be preferred. That Congress has left the Booker advisory system entirely unchanged now for six full years continues to surprise me much more than empirical documentation of increased post-Booker sentencing disparities.

Perhaps one reason Congress has not responded to Booker legislatively is the sense, even among the most ardent fan of mandatory federal sentencing guidelines, the increased disparity since Booker is not really such a bad thing in light of the alternative ways of reforming the federal sentencing system.  We got an advisory system in the first place largely because federal prosecutors balked at the prospect of having to comply with the new constitutional requirements for proving up sentence enhancements set out in Blakely, and there has been little evidence in the last six years that federal prosecutors have become bigger fans of Blakely rights.  Moreover, as Scott's research shows, even with the effect of a judge on sentence length has increasing after Booker, legally relevant factors like the defendant's crime and criminal history still are the principal drivers of sentence lengths.  Thus, to paraphrase Pangloss from Candide, perhaps despite increased disparity, after Booker we may be living in the best of all possible federal sentencing worlds.

December 20, 2010 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack