Sunday, December 19, 2010

Notable new perspective on reasonableness review after Booker

I have long thought that appellate review was a weakest link in the Booker remedy, both jurisprudentially and practically.  Thus, this new piece on SSRN by Briana Rosenbaum really caught my eye. The piece is titled "Righting the Historical Record: A Case for Appellate Jurisdiction Over Appeals of Sentences for Reasonableness Under 28 U.S.C. § 1291," and here is the abstract:

This Article is the first to critically analyze the jurisdictional basis for the Supreme Court’s mandate in United States v. Booker, 543 U.S. 220 (2005), that all courts of appeals review the length of criminal sentences for “reasonableness.”  In Booker, the Court created a new kind of appellate review: review of all criminal sentences for “reasonableness.”  As a result, the availability of appellate review has expanded greatly.  Data from the U.S. Sentencing Commission shows that, since Booker, the number of sentence appeals has risen. 

Unfortunately, the Court in Booker did not explain the jurisdictional basis for its expanded “reasonableness review.”  The omission is not trivial.  For decades, federal courts have held that courts of appeals do not have jurisdiction to review the length of criminal sentences.  The Supreme Court may not increase the jurisdiction of these courts; the Constitution gives this power to Congress alone.  Accordingly, if there is no basis for jurisdiction, the Supreme Court usurped Congress’ power to expand the jurisdiction of the federal courts.  Despite this, courts of appeals have unanimously followed the Supreme Court mandate to review sentences for reasonableness, with little more justification than “because the Supreme Court said so.”

This Article, for the first time, examines the historical and legislative underpinnings of appellate review of criminal sentences in an attempt to find a justification, if any, for Booker’s expanded appellate review.  The Article concludes that courts of appeals have indeed had jurisdiction under 28 U.S.C. § 1291 to review the length of sentences, and have had such jurisdiction since at least 1891.  Although courts routinely rejected appeals of the length of sentences for lack of “jurisdiction” before Booker, they did so erroneously, relying on older case law without fully analyzing the basis for those decisions. In fact, this “rule of non-review” was based not on jurisdiction, but on a policy of deference to the sentencing judge -- a policy that can be changed at any point, by either Congress or the Supreme Court.  In Booker, the Supreme Court exercised such a power. For the first time, this Article provides the correct jurisdictional basis for the Booker decision, and, at the same time, rights the historical record on jurisdiction over appeals of criminal sentences.

December 19, 2010 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, September 29, 2010

"Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency"

The title of this post is the title of this notable new note by Joanna Huang in the latest issue of the Duke Law Journal.  Here is the abstract:

P>In 1987, the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the mandatory Federal Sentencing Guidelines.  During this period, many judges were forced to impose sentences they viewed as unjust.  Trust in the judiciary was restored in 2005, when United States v. Booker made the Sentencing Guidelines advisory.  Despite the increase in judicial discretion, however, judges are still unable to correct sentences imposed during the intervening eighteen years because Bookerdoes not apply retroactively. Unfortunately, the executive and legislative branches are similarly unable to provide adequate remedies. Congressional action is insufficient because it is inflexible, time consuming, and generally nonretroactive. Executive clemency appears more promising due to a flexible and broad nature that allows the president and state governors to pardon or commute sentences at will.  But executives have become unwilling to use their clemency power, making it an inadequate remedy.

This Note proposes a solution that overcomes the limitations of the current system: judicial recommendation of executive clemency.  This solution produces three benefits.  First, it provides judges with a discretionary tool to reduce disproportionate mandatory sentences. Second, it revitalizes the exercise of clemency by giving it additional legitimacy.  Finally, it refocuses clemency grants on the defendant and the facts of the case rather than on political influences.  This Note provides eight illustrative criteria for judicial recommendation of executive clemency that, together, combine the characteristics of three modern cases in which the sentencing judges recommended clemency. This Note seeks to explain how and why each criterion might be important, taking into consideration the goals of judicial discretion, executive clemency, and the criminal justice system overall.

September 29, 2010 in Booker and Fanfan Commentary, Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

Tuesday, September 14, 2010

"Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC’s 2010 Report"

The title of this post is the title of this notable new paper from a set of criminologists that is now available via SSRN. Here is the abstract:

The U.S. Sentencing Commission (USSC) released a report in March 2010 concluding that racial disparity in federal sentencing has increased in the wake of the U.S. Supreme Court decisions in U.S. v. Booker (2005) and U.S. v. Gall (2007).  In light of this USSC report, we provide an alternative set of analyses which we believe provides a more complete and informative picture of racial, ethnic, and gender disparity in federal sentencing outcomes. We first attempt to replicate the USSC’s models.  Then we present alternative models of sentencing outcomes across three time periods spanning FY 2000 to 2009.

We find that post-Booker/Gall race/ethnic/gender disparity in sentence length is generally comparable to pre-2003 levels.  Our findings mainly diverge from the USSC’s because of: 1) the USSC’s decision to include non-incarceration cases in the sentence length analysis (as sentence lengths of 0), since more racial disparity appears to be manifest in the incarceration decision than in sentence lengths, and 2) the inclusion of immigration offenses in the USSC’s analyses, since comparatively greater disparity affecting black males is observed among immigration offenses.  We also extend the USSC report by: 1) presenting analyses that compare post-Booker sentence length disparity with disparity before the 1996 U.S. v. Koon decision, and 2) presenting an analysis of disparity in departures/deviations from the Guidelines.

September 14, 2010 in Booker and Fanfan Commentary, Booker in district courts, Detailed sentencing data | Permalink | Comments (24) | TrackBack

Wednesday, July 28, 2010

"A Brief and Modest Proposal" ... an original essay from US District Judge Richard Kopf

I am very pleased to be able to reprint a timely e-mail that landed in my in-box this afternoon from Richard G. Kopf, United States District Judge for the District of Nebraska.  Here is the Judge's wind-up and pitch:

I read Professors Masur's article entitled "Booker Reconsidered" and your post about his article [available here].  After that reading, a thought occurred to me that has been percolating in my muddled mind for some time.  Hence, the following "Brief and Modest Proposal."  Feel free to post if you like. Take care.


A Brief and Modest Proposal

Although it has the data and although it releases data on a court-by-court basis, the United States Sentencing Commission has never publicly released information on the extent to which individual federal judges sentence within or outside the Guidelines.  I propose that the Sentencing Commission annually release sentencing statistics for each federal judge who sentenced a significant number of offenders during that year.

For much of their history, compliance with the Guidelines was very high.  So long as the Guidelines were essentially binding in most cases and aggregate compliance rates remained elevated, one could make a reasoned argument that providing sentencing statistics on individual judges was unnecessary and perhaps unfair.  But the Supreme Court has changed all that by significantly increasing the discretion of federal judges when it comes to sentencing.

Since the Supreme Court’s reordering of the federal sentencing process, compliance with the Guidelines is on a steady downward trend, albeit not as drastic as feared.  This trend has caused the Attorney General, scholars and some judges to worry (1) that disparities caused by irrelevant factors (race, gender, class and so forth) are increasing and (2) that a fair number of sentencing decisions are driven by idiosyncratic beliefs that, while well-motivated, are not empirically supported or are contrary to reasoned sentencing policy. Indeed, these concerns are finding a public voice.  See, for example, the New York Times editorial entitled "Rethinking Criminal Sentences" published on July 28, 2010. ("As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will 'breed disrespect for the federal courts,' damaging their reputation and the deterrent effect of punishment.").

By making individual sentencing statistics available, federal judges will be held publicly accountable for the exercise of their new found discretion, and that might have the beneficial effect of causing judges to think more deeply about the sentences they impose and explain more clearly the reasons for those sentences.  Perhaps more importantly, armed with this data, outside scholars who seriously study these things will be better informed and therefore better able to provide a reasoned critique of the federal sentencing process in this post-Booker world.  In short, it is time for federal sentencing judges like me to pay the piper.

Richard G. Kopf,  United States District Judge

July 28, 2010 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (30) | TrackBack

Monday, July 19, 2010

"In many cases the judges who diverge from the advisory Guidelines ranges will do so for the wrong reasons"

The title of this post is a sentence from this intriguing new commentary now on SSRN from Professor Jonathan Masur, which is titled simply "Booker Reconsidered."  There is a lot worth saying about this must-read piece, and to start I welcome reader reactions to both the key sentence quoted in the post title and this key paragraph of the author's analysis that immediately precedes this key sentence (with footnotes removed):

The result [of Booker making the guidelines advisory] is a system that is likely to underperform the prior regime in several important respects.  There will certainly be cases in which judges will be better able to tailor sentences to fit offenders and their crimes under the advisory Guidelines. This ability to consider penalties on a case-by-case basis is, of course, the principal advantage of charging judges with the task of sentencing.  Yet the cost of endowing the federal courts with this modicum of flexibility in sentencing is that racial and ideological disparities are likely to reappear, possibly in even more pernicious form.  And that cost may not be balanced by a corresponding benefit from reinvigorating the role of the courts.

I greatly appreciate the effort to bring some cost-benefit analysis into the Booker debate, as well as Professor Masur's focus on the "division of institutional responsibilities" in his analysis.  But I find curious and troublesome that the statutory provisions of 3553(a), which Booker preserved as binding sentencing law, get scant attention in this piece.   Indeed, this piece strikes me as another example of both Bookerand federal sentencing judges being criticized because Congress appears unwilling to do any of the hard sentencing work that the Blakely and Booker constitutional rulings would now seem to require for the construction of an ideal sentencing system.

And here is what I find especially curious about the sentence I have quoted in my post title: if/when judges are doing their jobs properly after Booker, in all cases the judges who diverge from the advisory Guidelines ranges should and must do so based only on the mandatory considerations set out by Congress in the text of 3553(a).  If in fact the "wrong reasons" are being used by district judges in many case in light of the text of 3553(a), circuit judges should be reversing more sentences.  Alternatively, if district judges are generally complying with the text of 3553(a) when deciding to vary from the guidelines, there is something peculiar about the assertion that these variances are for the wrong reasons in many cases.

July 19, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, July 18, 2010

Effective press coverage of recent DOJ letter to the US Sentencing Commission

Marcia Coyle has this lengthy and effective piece due to appear in tomorrow's National Law Journal under the headline "Justice Department Calls for Probe of Federal Sentencing Patterns; Prosecutors see disparity in fraud, child pornography punishments." Here is how it begins:

During the past four years, federal judges imposed sentences of one to four years on five defendants in the AIG fraud case that caused more than $500 million in losses; 25 years on Ronald Treadwell for a Ponzi scheme involving a $40 million loss; and 3 1/2 years on former Impath Inc.  President Richard Adelson for a $50 million securities fraud.

Those widely disparate sentences don't make sense, ignore federal sentencing guidelines and are a sign of a potentially very big problem, according to the U.S. Department of Justice. The DOJ wants the U.S. Sentencing Commission to investigate, with special attention to guidelines for fraud and child pornography crimes.  But some sentencing experts say it may be something that the commission does not want to examine too closely.

The department called for a "comprehensive review" of the state of federal sentencing in its most recent annual report to the commission on June 28.  In the five years since a U.S. Supreme Court decision struck down the mandatory nature of federal sentencing guidelines, the department said, prosecutors' experiences and data "suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes."

If allowed to go unchecked, the two regimes will lead to unwarranted sentencing disparities, disrespect for federal courts and sentencing uncertainty that could lead to more crime, the department said.  "More and more, we are receiving reports from our prosecutors that, in many federal courts, a defendant's sentence will largely be determined by the judicial assignment of the case; i.e., which judge in the courthouse will conduct the sentencing," said Jonathan Wroblewski, director of the Criminal Division's office of policy and legislation, in the report.

Some sentencing scholars agree that judges are "straying off the guideline reservation" more frequently since the 2005 ruling in Booker v. U.S., but they disagree on how big a problem this could be.  "I do think they're on to something," said former federal judge Paul Cassell of the University of Utah S.J. Quinney College of Law.  "It's one of the dirty little secrets of federal sentencing now.  There are situations where which judge you pull can drive the sentence."

But, he added, the subject for debate is how widespread the problem may be.  "Is it isolated to a few here and there ignoring sentencing guidelines or is this a more general phenomenon?  That's where analysis by the [Sentencing] Commission is needed."

The fact that some sentences may be below the guidelines does not demonstrate a disrespect for the guidelines, said Ellen Podgor of Stetson University College of Law. "Rather, it recognizes that these are advisory guidelines for consultation and use in determining a sentence," she said.  "It is important to remember that judges are sentencing people and it is not a mere mathematical computation that should control."

Recent related posts on the DOJ letter to the USSC:

July 18, 2010 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, July 13, 2010

Wasn't pre-Booker federal sentencing an "ongoing source of discord, disunity, and criticism"?

There are so many intriguing aspects of the letter sent last month by the Justice Department's Criminal Division to the US Sentencing Commission (basics here), and I am still reflecting on DOJ's current assessment and criticism of 2010 post-Bookerrealities.  But, upon my first re-read of the DOJ letter, this introductory paragraph jumped out at me:

[W]e think the existence of these dichotomous regimes [with some judges regularly sentencing within the guidelines and others frequently sentencing outside the guidelines] will, over time, breed disrespect for the federal courts.  Trust and confidence in the criminal justice system is critical to successfully bringing justice to all and keeping crime rates low. To the extent that federal sentencing is an ongoing source of discord, disunity, and criticism, the reputation of the federal courts will be seriously damaged and the effectiveness of federal criminal justice will be compromised.

I do not disagree with any of the sentiments in this paragraph, but it seems to incorporate an implicit assertion that all was well with federal sentencing law and practice before Booker five years ago transformed the guidelines from rigid mandates into general advice.  As the question in the title to this post spotlights, in my view, federal sentencing before Booker was "an ongoing source of discord, disunity, and criticism" and that reality seriously damaged the reputation of federal courts and the effectiveness of federal criminal justice.  Indeed, I think it fair to assert that the amount of discord and criticism of the federal sentencing system has been reduced by Booker, though arguably the amount of disunity may be increasing.

The broader issue that the DOJ letter and this post raises concerns the appropriate benchmark for assessing and criticizing modern post-Booker federal sentencing realities.  There are clearly many problems with the current advisory federal sentencing regime.  But I continue to believe that most of these problems are generally less bad now than they were before Booker --- though the current problems may now be more transparant and irksome (especially to prosecutors who generally see increase judicial discretion being used to reduce sentence lengths relative to the guidelines).  Moreover, the fact that a lot of the problems with federal sentencing are now more transparant after Booker serves itself as a mark in Booker's favor because problems that are easier to see are generally easier to fix.

July 13, 2010 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, July 08, 2010

Judge Bright makes pitch for sentencing councils to deal with post-Booker disparities

A number of helpful readers have alerted me to the intriguing little concurrence penned by Judge Bright in US v. Ayala, No. 09-2123 (8th Cir. July 8, 2010) (available here).  Here are snippets from an interesting read:

Sentencing discretion should not become the justification for federal courts’ acceptance of disparity between similarly situated defendants. Disparity erodes public confidence in the fair administration of our criminal justice system....

If we can agree with Justice Jackson that disparity based on the identity of the sentencing judge has pernicious effects, how, in this age of discretion, can the federal judiciary address sentencing disparity? I suggest that federal sentencing judges, particularly those in multi-judge districts, examine and institute sentencing councils similar to those that existed before the guidelines....

Although sentencing councils did not eliminate sentencing disparity, they did reduce disparity. Importantly, councils provided a means for sentencing judges to receive valuable feedback on the type of sentence being contemplated.

Although needing substantial revision, the advisory guidelines may be helpful in reducing improper disparity. However, a guideline sentence often may not be appropriate and a judge should consider and analyze the statutory factors, see 18 U.S.C. § 3553(a), to arrive at a fair and reasonable result. Sentencing councils would assist federal judges in fashioning sentences in accordance with section 3553(a) and alert judges to situations where their personal viewpoints may result in a disparate sentence.

Moreover, because of our nation’s technological advances, today’s councils could include the viewpoints of judges from various geographical areas.  The recommendations of councils might be shared easily among the federal judiciary.

The judiciary’s work is not finished so long as sentencing in federal courts is affected by the fortuitous vel non circumstances described by Justice Jackson. Judges in the federal district courts as well as federal appellate judges need to address and reduce disparity in sentencing similar criminal offenders.  Otherwise, a sentence may largely reflect the ideology or viewpoint of the sentencing judge rather than the nature of the crime and history and characteristics of the offender.

July 8, 2010 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, June 28, 2010

SCOTUS takes up long-running federal sentencing case from Eighth Circuit

It appears that among the cert grants from the Supreme Court this morning is Pepper v. United States (docket here), which will call for a review of this Eighth Circuit opinion.  This Pepper case appears to have gone up and down the federal judicial ladder on sentencing issues for years, and it looks like Pepper might be a variation on the important Gall case from the Eighth Circuit that SCOTUS reversed a few years ago.  I will have a lot more on this important federal sentencing cert grant once I have a chance to review the particulars.

UPDATE:  Because the Eighth Circuit's most recent Pepper decision implicates so many issues, it is hard to even know how significant the SCOTUS cert grant in this case could prove to be.  That said, the case seems likely to provide the newer Justices with their most direct opportunity to express views on modern post-Booker federal sentencing realities.

June 28, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, June 19, 2010

In praise of the US Sentencing Commission and hopeful about federal sentencing's future

As I continue a too-long trek back from the US Sentencing Commission's big national conference in New Orleans, I wanted to do this quick post to praise the USSC's continuing efforts to enable sentencing data and the voices of judges and sentencing practitioners drive federal sentencing reform in this post-Booker world.  More broadly, I wanted to explain why, at least right now, I am more hopeful about the future of federal sentencing than I have been in a long time.

My positive feelings about the US Sentencing Commission and federal sentencing's future are no doubt impacted by the benefits of spending most of my time in the ivory tower (and perhaps also a belly too full of beignets and fried seafood).  On the ground, there surely remain plenty of problems and injustices in the sentencing of some (many?) of the nearly 80,000 federal defendants being sentenced each year.  Nevertheless, viewed from the ivory tower, the federal sentencing system finally seems to be moving in the right direction: the chief policy-makers within and around the Sentencing Commission (as well asmost federal judges and the Department of Justice) seem soundly focused on preserving the best features, and remedying the most troublesome features, of the federal sentencing system that Booker created.  Though the post-Booker world is far from perfect, there now seems to be a pretty sound case-level balance between system-wide sentencing rules and reasoned sentencing discretion and also a pretty sound commitment by all the policy makes to keep improving the system-wide sentencing rules.

Of course, the story is not all rosy in any branch of the federal government.  Congress cannot get around to making even a modest change to the severe crack mandatory minimum sentencing statutes that all agree are unjust.  The Sentencing Commission is yet to really go at modifying the most problematic aspects of the drug, fraud and porn possession guidelines.  President Obama continues to reveal that he lacks the wisdom and courage needed to exercise his historically important clemency powers in any way.  And the federal prison population continues to hit record high levels every month.  Still, despite all these persistent disconcerting realities, for the first time that I can remembers, I am more hopeful and optimistic than cynical and pessimistic about the directions in which federal sentencing law and practice seem to be heading.

Especially because I fear that the great fun I had in New Orleans at the USSC conference my be giving me too rosy a view of where federal sentencing matters stand and are headed half a decade after Booker, I welcome any and all comments intended to kill my law nerd buzz.

June 19, 2010 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, June 16, 2010

"Judges Give Thumbs Down to Crack, Pot, Porn Mandatory Minimums"

The title of this post is the headline of this effective article by Marcia Coyle in today's National Law Journal reporting on some of the highlights of the US Sentencing Commission's recently released results from a survey of federal district judges about their views on post-Booker sentencing realities.  Here is how the piece begins:

Mandatory minimum sentences are too high, restitution for crime victims should be available in all cases, and judge-specific data on sentencing should not be reported, according to a survey of more than 600 federal trial judges.

From January through March of this year, the U.S. Sentencing Commission for the first time questioned federal judges on their views about sentencing under the advisory guidelines system in effect since 2005. The U.S. Supreme Court struck down the mandatory sentencing guideline system in its 2005 ruling U.S. v. Booker.

The survey, released last week, drew responses from 639 of the 942 judges to whom it was sent -- a 67.8 percent response rate. The 639 judges who responded had sentenced 116,183 offenders, or 79 percent of those sentenced during fiscal 2008 and 2009.

Sixty-two percent of the judges said the mandatory minimums that they were required to impose were too high, particularly for crack cocaine (76 percent), receipt of child pornography (71 percent) and marijuana (54 percent). However, strong majorities believed the sentencing guideline ranges for most federal offenses were appropriate, with the exception again of those for crack cocaine, marijuana, and the possession and receipt of child pornography, which they said were too high.

When asked to choose among sentencing systems without guidelines, with mandatory guidelines, with advisory guidelines or with mandatory guidelines that conform with the Sixth Amendment, 75 percent of the responding judges chose the current system of advisory guidelines....

Among the survey's other findings, 54 percent agreed somewhat or strongly that pre-sentence reports should be required to include information that a crime victim wants included. But 68 percent said victims should not have the opportunity to comment on the pre-sentence report before sentencing. Sixty-six percent agreed somewhat or strongly that courts should have the authority to order restitution for victims in all cases.

June 16, 2010 in Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, April 28, 2010

Latest FSR issue, "Booker at Five," now available on-line

I am overdue in reporting that the latest issue of the Federal Sentencing Reporter, which is full of analysis and primary materials assessing federal sentencing law and practice five years after the Booker decision, is available on-line.  This issue bears the simple title "Booker at Five," and an array of professors and practitioners discuss various of current state of the post-Booker sentencing landscape.  The Table of Connects for this latest FSR issue can be accessed at this link, and the full issue and/or a full subscription to the Federal Sentencing Reporter can be ordered on-line here.) 

FSR editor Paul Hofer played a central role in this timely FSR issue; Paul and I co-authored the issue's Editors' Observations, which is available here and is titled "A Look at Booker at Five."  Here is how our introduction gets started:

The old saw “time flies when you’re having fun” does not quite capture the five years since the Supreme Court’s decision in United States v. Booker.  To most observers, at least those outside the Department of Justice and perhaps a few circuit courts, the advisory guideline sentencing system created by the Booker remedial opinion is an improvement over the rigid mandatory guidelines system that the Booker merits opinion declared unconstitutional.  Yet the U.S. Bureau of Prisons still runs the largest prison system in the United States, which is itself the nation with the highest incarceration rate in the world. And even district judges and defense attorneys, who may be the biggest fans of the post-Booker federal sentencing system, would surely agree that many aspects of the current system are far from perfect.

Though not everyone may be having “fun,” there has been no shortage of federal sentencing activity to keep everyone busy thinking about the ruling and its consequences and impact. In this time, more than 350,000 defendants have been sentenced under the effectively advisory guidelines.  The Supreme Court has handed down five additional opinions clarifying implications of the Booker decision (with more in the works), and both district and circuit courts have grappled with issues left unanswered, with varying degrees of success (and expressions of frustration).  Almost as noteworthy is what has not happened. Congress has not picked up the ball hit into its court by the Supreme Court’s Booker remedy, and the U.S. Sentencing Commission has barely acknowledged that the guidelines are advisory in its Guidelines Manual — plus, no major guideline revisions can be attributed to the decision.

In this issue of Federal Sentencing Reporter, we have solicited a range of authors to provide their perspective on what has and has not changed in the federal sentencing system after Booker.  And, in these Editors’ Observations, we seek to spotlight how these perspectives provide a deeper understanding of whether the changes wrought by the Booker decision and its aftermath are the sort that those interested in sentencing justice should believe in.

Other recent FSR issues:

April 28, 2010 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Recommended reading | Permalink | Comments (0) | TrackBack

Friday, April 23, 2010

"Federal Judges Still Finding Their Way in Post-'Booker' Sentencing Landscape"

The title of this post is the headline of this new article by Mary Pat Gallagher in the New Jersey Law Journal. Here is how it gets started:

Five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.

But judges are still struggling to grasp the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors.  Instead of tossing the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.

There has been an incremental trend away from strict adherence to the guidelines. The statistics, released April 9, show that for the 2009 fiscal year, which ended Sept. 30, 2009, 56.8 percent of sentences were inside the guidelines, down from 61.7 for 2006, the first year after Booker. The percentage also fell in both of the intervening years too, to 60.8 percent in 2007 and 59.4 in 2008.

Though nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit.  The second lowest and highest rates of fealty to the guidelines were the District of Vermont's 30.8 percent and the Southern District of Mississippi's 80.7 percent.

Circuit averages varied from 39.4 in the District of Columbia Circuit to 71.7 percent in the 5th Circuit. When judges opt not to stay within the guidelines, they are far more likely to go below them.  Nationally, lesser sentences were meted out in 41.2 percent of cases, versus only 2 percent where they were greater.

April 23, 2010 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, March 16, 2010

New scholarship complaining that reasonableness review is now quite unreasonable

Now appearing on SSRN is this notable forthcoming article discussing the mess that is reasonableness review of federal sentences in the circuits.  The piece is titled "When ‘Reasonableness’ is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough," and here is the abstract:

Judges, like anyone else who works for a living, need standards.  Judges need to know what rules to apply, when to apply them, and who to apply them to.  And judges, just like you or I, want to know how their work will be reviewed.  Unfortunately, in many circuits, federal district court judges do not know how, or even if, their work will be reviewed by appellate courts in the context of criminal sentencing decisions.

Booker completely changed the sentencing landscape in the federal court system, but it left many questions as to what standards appellate courts would apply in reviewing sentencing decisions.  The Supreme Court issued three opinions in 2007, Rita, Gall, and Kimbrough, in an attempt to resolve several of the circuit splits that resulted when the Supreme Court repealed the mandatory sentencing guidelines in Booker.  Practically speaking, these decisions failed to clarify what authority appellate courts wield in the sentencing process, and how appellate judges should exercise that authority.

This Article examines how the contradictory language from Rita, Gall, and Kimbrough not only failed to provide clarity, but created new inter- and even intra-circuit splits.  This Article argues that these problems can only be resolved by articulating clear and practicable standards that prioritize the sentencing factors contained in 18 U.S.C. § 3553(a), rather than continuing to weigh them all equally.  Specifically, the Supreme Court could require district court judges to take advantage of the wealth of sentencing data being collected by the U.S. Sentencing Commission to justify particular sentences for defendants by reference to those given to similarly situated defendants across the nation.  This solution has the potential to achieve the balance that has thus far eluded the Court between both Congress’ legislative intent behind the original enactment of the mandatory sentencing guidelines, and the Court’s Sixth Amendment concerns raised in Booker.

March 16, 2010 in Booker and Fanfan Commentary, Booker in the Circuits, Gall reasonableness case, Kimbrough reasonableness case, Who Sentences? | Permalink | Comments (10) | TrackBack

Friday, March 12, 2010

Important and worrisome new multivariate analysis from USSC of post-Booker sentencing patterns

I am pleased to see that the US Sentencing Commission has released this potent and important new sentencing data analysis, which is titled "Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report’s Multivariate Analysis."  I am not pleased (though also not especially surprised) about what that analysis reveals about some post-Booker sentencing trends.  Specifically, according to this new USSC report:

This report focused on three separate time periods which together spanned the time between May 1, 2003, and September 30, 2009.  The Commission found a correlation between the length of sentences imposed on some groups of offenders and the demographic characteristics of those offenders.  These differences were not present in all time periods under study and differed in magnitude in the time periods in which they were observed....

Based on this analysis, and after controlling for a variety of factors relevant to sentencing, the following observations can be made: 

  • Black male offenders received longer sentences than white male offenders. The differences in sentence length have increased steadily since Booker

  • Female offenders of all races received shorter sentences than male offenders. The differences in sentence length fluctuated at different rates in the time periods studied for white females, black females, Hispanic females, and “other” female offenders (such as those of Native American, Alaskan Native, and Asian or Pacific Islander origin). 

  • Non-citizen offenders received longer sentences than offenders who were U.S. citizens. The differences in sentence length have increased steadily since Booker. 

  • Offenders with some college education received shorter sentences than offenders with no college education. The differences in sentence length have remained relatively stable across the time periods studied. 

  • The data were inconsistent as to the association between an offender’s age and the length of sentence imposed.

Any serious student of the history of prosecutorial and judicial sentencing discretion knows that with any increase in discretion power will come some increase in disparate outcomes and the risk that disparities are influenced by non-legal factors that we might wish would not (but always does) influence how imperfect humans exercise their discretion.  These realities always demand careful assessment and sober reflection, but they also always demand a careful reaction and sober consideration of what remedies are possible and what remedies might prove worse than the disease.

Though I will need to review this new report and its data closely before developing a detailing reaction to these findings, I will start by suggesting that my own anecdotal post-Bookerexperiences suggest that economic realities and the disparate efforts of prosecutors and defense counsel may account for worrisome disparities more than the determinations of sentencing judges.  I fear there my be some systematic and structural biases, often influenced by socio-economic realities, that can result in prosecutors charging and bargaining a bit harder on certain types of offenders and that can result in defense counsel developing better mitigating arguments for certain types of offenders. 

March 12, 2010 in Booker and Fanfan Commentary, Booker in district courts, Race, Class, and Gender, Who Sentences? | Permalink | Comments (18) | TrackBack

Thursday, February 25, 2010

Effective ABA Journal review of Booker at five

Mark Hansen has this effective new piece, headlined "You Say You Want a Revolution: In Booker plus five, there’s been rumbling but hardly rebelling," about federal sentencing life since Booker.  Here is how it begins:

Jan. 12 marked the fifth anniversary of U.S. v. Booker, the U.S. Supreme Court decision that some said would revolutionize federal sentencing. The case transformed federal sentencing guidelines from what had long been a mandatory system into an effectively advisory one.

Defense lawyers cheered. District court judges viewed it as sort of an Emancipation Proclamation from the tyranny of the mandatory guidelines. Prosecutors, on the other hand, feared the decision would lead to wildly inconsistent sentences. And some lawmakers worried that it would plunge the courts into “pre-guidelines chaos.”

Five years out, however, Booker has become anything but revolutionary.  So far it’s resembled a midfield scrum with either side trying to figure out which way the ball is bouncing.

February 25, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, February 24, 2010

Off to Miami for National Institute on White Collar Crime

N10wcc1 As detailed here on the ABA's website, today starts the 2010 White Collar Crime National Institute.  I have the great fortune and pleasure to be escaping a predicted snowstorm in NYC to head this afternoon to Miami Beach to participate on a terrific sentencing panel taking place Thursday morning.

Everyone can access at this link the full program for this big event, which details that the feature speaker is Lanny Breuer, the DOJ Assistant Attorney General.  In addition, the promotional materials indicate that "keynote panels will focus on the most significant fraud trials of the past year, as well as an in-depth review of recent developments regarding the Brady Rule."  Here is how my panel is titled and described:

SENTENCING IN WHITE COLLAR CRIMINAL CASES AND WITNESS/VICTIM RIGHTS: Panelists will address several topics related to sentencing in white collar criminal cases, including reasonableness, loss causation and calculation, the rights of victims, and approaching any appeal.

February 24, 2010 in Booker and Fanfan Commentary, Booker in district courts, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Thursday, February 18, 2010

"Judicial Discrection: A Look Back and a Look Forward Five Years After Booker"

The title of this post is the title of this terrific symposium about federal sentencing law in which I am participating today.  Though sponsored by the University of Utah, I am actually about to head to DC to participate in the event from inside the Beltway, along with some of the other of these impressive participants:

Here is how the promotional materials describe the event:

This symposium will explore issues surrounding judicial discretion and sentencing.  After opening remarks from Judge William K. Sessions III, Chair of the U.S. Sentencing Commission, panelists will explore the extent to which the sentencing guidelines continue to provide useful guidance to judges five years after the Supreme Court’s decision in United States v. Booker.  The panelists will also explore mandatory minimum sentencing schemes and ask whether they usefully impose tough punishment or inappropriately restrict the ability of judges to make the punishment fit the crime.  The symposium will conclude with a general discussion of sentencing issues and provide an opportunity to audience members to ask questions of the participants.

Excitingly, folks can watch this event live online (as well as comment below) thanks to the magic of the internet and a link at

February 18, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, December 07, 2009

Supreme Court grants cert on applicability of Booker in sentencing modifications!

I am surprised and pleased to report that the Supreme Court today announced that it will be reviewing another important federal sentencing issue this term: whether and how Booker impacts a court's sentencing authority in sentence modification proceedings.  Here are the basics from this report at SCOTUSblog:

The Court also granted a second case — Dillon v. U.S. (09-6338). That case tests whether the federal Sentencing Guidelines are binding when a federal judge imposes a new sentence. The case will test whether the Supreme Court’s 2005 ruling in U.S. v. Booker, making the Guidelines advisory only, applies in a sentence modification proceeding.  Review was granted even though the Court had previously refused to hear the issue in a number of cases.  The U.S. Solicitor General recommended a denial in this case, too.

Other matters will now take me off-line for the next few hours, but I hope to comment on this surprising new sentencing grant later in the day.  In the meantime, I hope commentators will speculate about why SCOTUS took this particular case at this particular time.

UPDATE:  Here is the basic AP coverage of this grant in Dillon, and SCOTUSblog has helpfully posted the Third Circuit's opinion here and the cert petition here.  As DEJ notes in the comments, the defendant in Dillon has good, sypathetic facts, which perhaps explains why the Justices decided that he should get the golden ticket to come to the magical SCOTUS factory with an issue that has been pressed by perhaps hundreds of other defendants.

December 7, 2009 in Booker and Fanfan Commentary, Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, November 05, 2009

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

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

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

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

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

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

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

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

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

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

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

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

November 5, 2009 in Booker and Fanfan Commentary, Booker in district courts, Who Sentences? | Permalink | Comments (9) | TrackBack

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

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

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

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

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

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

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

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

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

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

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

November 5, 2009 in Booker and Fanfan Commentary, Booker in district courts, White-collar sentencing | Permalink | Comments (6) | TrackBack

Monday, November 02, 2009

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

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

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

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

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

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

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

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

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

November 2, 2009 in Booker and Fanfan Commentary, Booker in district courts, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, October 02, 2009

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

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

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

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

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

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

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

Some related recent posts:

October 2, 2009 in Apprendi / Blakely Retroactivity , Blakely in the Supreme Court, Booker and Fanfan Commentary, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, June 11, 2009

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

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

June 11, 2009 in Booker and Fanfan Commentary | Permalink | Comments (5) | TrackBack

Saturday, May 30, 2009

Different perspectives on federal sentencing from different vantage points

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

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

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

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

May 30, 2009 in Booker and Fanfan Commentary | Permalink | Comments (2) | TrackBack

Tuesday, April 28, 2009

CLR note on co-defendant disparity after Booker

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

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

April 28, 2009 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

Friday, April 03, 2009

Deep thoughts about post-Booker sentencing and sources of law

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

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

April 3, 2009 in Booker and Fanfan Commentary | Permalink | Comments (3) | TrackBack

Sunday, March 22, 2009

Seeking Sunday federal sentencing speculations

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

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

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

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

March 22, 2009 in Booker and Fanfan Commentary | Permalink | Comments (4) | TrackBack

Saturday, March 14, 2009

Seeking help and input from would-be "Bookerologists"

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

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

March 14, 2009 in Booker and Fanfan Commentary | Permalink | Comments (8) | TrackBack

Thursday, March 12, 2009

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

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

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

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

March 12, 2009 in Booker and Fanfan Commentary | Permalink | Comments (2) | TrackBack

Monday, January 26, 2009

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

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

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

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

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

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

January 26, 2009 in Booker and Fanfan Commentary | Permalink | Comments (6) | TrackBack

Wednesday, January 21, 2009

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

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

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

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

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

January 21, 2009 in Booker and Fanfan Commentary | Permalink | Comments (10) | TrackBack

Tuesday, January 20, 2009

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

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

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

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

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

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

January 20, 2009 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Monday, January 12, 2009

Should we celebrate Booker's fourth birthday?

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

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

How healthy is that Sixth Amendment jury buffer?

January 12, 2009 in Booker and Fanfan Commentary | Permalink | Comments (3) | TrackBack

Thursday, December 11, 2008

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

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

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

December 11, 2008 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Gall reasonableness case, Kimbrough reasonableness case, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Tuesday, July 08, 2008

A potent attack on the post-Booker world

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

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

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

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

July 8, 2008 in Booker and Fanfan Commentary | Permalink | Comments (11) | TrackBack

Tuesday, June 24, 2008

"Appellate Discretion and Sentencing after Booker"

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

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

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

June 24, 2008 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

Monday, June 16, 2008

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

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

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

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

Download Brotman_WCCSentArt.pdf

June 16, 2008 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Thursday, June 05, 2008

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

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

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

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

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

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

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

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

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

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

June 5, 2008 in Booker and Fanfan Commentary | Permalink | Comments (4) | TrackBack

Tuesday, March 18, 2008

Yet another analysis of Booker's real import

Now available on SSRN at this link is another piece of scholarship trying to give coherent shape and meaning to the Supreme Court's work in Booker and its progeny.  This piece is titled "Re-Conceptualizing Booker: How to Stop Legislatures from Circumventing the Right to Jury Trial," and here is the abstract:

This essay offers a new, comprehensive account of the Supreme Court's recent Sixth Amendment sentencing doctrine and provides solutions to a number of well-recognized doctrinal puzzles. Existing theories lack a strong foothold in the Sixth Amendment's right to jury trial, fail to answer concerns that post-Booker appellate sentencing review might itself lead to Booker violations, and make no effort to explain how the Sixth Amendment might justify the Supreme Court's post-Booker decisions regulating federal sentencing practice.

The key to answering these dilemmas is to recognize how the Court's Sixth Amendment rule helps preserve the centrality of jury verdicts.  As employed by the Court, the Blakely rule removes an incentive for legislatures to shift factfinding responsibilities away from juries and toward judges.  This jury circumvention approach both respects the American legal system's dual traditions of jury trial and judicial sentencing and explains why appellate sentencing review after Booker should not raise constitutional problems.  However, this novel approach also highlights the possibility that — despite the Blakely rule — Congress and the courts might implicitly collude so as to empower judges at juries' expense.  This last possibility is what drives the Court's recent, otherwise inscrutable decisions in Rita, Gall, and Kimbrough.

March 18, 2008 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Sunday, January 27, 2008

Judge Kopf's "Top Ten" take on SCOTUS sentencing work

As previously detailed here, last week week the Ohio State Journal of Criminal Law "officially launched" a new scholarly project: an on-line companion website publishing commentaries from practitioners on cutting-edge criminal law.  The first publication includes original commentaries by four terrific district judges discussing federal sentencing after last month's Gall and Kimbrough rulings. 

Though all four judicious articles in the new OSJCL Amici: Views from the Field merit attention, I have to give a special shout-out to the work of Judge Richard Kopf (in part because he has already contributed indirectly to my weekend plans).  Judge Kopf's piece provides a "Top Ten" view of the sentencing world as a result of the Supreme Court's modern sentencing jurisprudence.  And though the list should be read in full, I cannot help but showcase its start and finish here:

10. Following the Court’s approach, always put off to tomorrow what you can do today.

9. You don’t need experience in actually sentencing people in order to totally screw up the law of sentencing. It is telling and painfully obvious that not a single Justice ever had to look a federal defendant in the eye while not knowing what law to apply....

2. Sentencing judges can be divided into two groups–those who are damn sure they’re right and those (like me) who have no clue.

1. There are a lot of really good, hard-working people “in the field” plus tens of thousands of defendants who deserved far better than the seven years of “water boarding” that ensued between Apprendi and Gall.

January 27, 2008 in Booker and Fanfan Commentary | Permalink | Comments (8) | TrackBack

Wednesday, December 19, 2007

Drugged commentary on the sentencing week that was

Over at FindLaw, Mark Allenbaugh has this new piece titled "A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs." Here is how it starts:

Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs — not on crime, but specifically on drugs.  This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use.  In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.

And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.

But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing — in the form of two December 10 decisions from the Supreme Court.

I do not view last week's amazing federal sentencing events as anything close to a referendum or even a significant turning point on the "war on drugs."  That said, I do not think it is coincidental or inconsequential that Gall and Kimbrough involved drug offenses.  And, as Mark's commentary notes at the end on this commentary, the critical question going forward is "What Will Congress Do?".

December 19, 2007 in Booker and Fanfan Commentary, Drug Offense Sentencing, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, December 18, 2007

AFDA webcast on lastest federal sentencing developments

As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized another of his great audio webcast for this Wednesday (December 19) at 12noon ET to allow me to discuss Kimbrough, Gall, the new crack guidelines and related federal sentencing happenings  and its possible aftermath. 

Unlike other groups seeking big bucks for webcasts, the AFDA usually only charges a nominal fee and the Greg has made this webcast free for everyone.  The webcast will be an informal interview conducted over live streaming audio, with accompanying text posted to a viewing screen and links to PDF files containing materials relevant to the topics discussed. To attend this webcast, simply:

Though I plan primarily to recap and expand upon some commentary already appearing here, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.

December 18, 2007 in Booker and Fanfan Commentary, Booker in the Circuits, Claiborne and Rita reasonableness case, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case | Permalink | Comments (3) | TrackBack

Monday, December 10, 2007

SCOTUS rules for the defendants in Gall and Kimbrough!!

Providing a great Hanukkah present for me and anyone else tired of waiting, today the Supreme Court issued its decision in Gall and Kimbrough. SCOTUSblog here provides the basics:

The Supreme Court ruled 7-2 that the federal guidelines on sentencing for cocaine violations are advisory only, rejecting a lower court ruling that they are effectively mandatory.  Judges must consider the Guideline range for a cocaine violation, the Court said, but may conclude that they are too harsh when considering the disparity between punishment for crack cocaine and cocaine in powder form.  Justice Ruth Bader Ginsburg wrote the decision in Kimbrough v. U.S. (06-6330)....

Ruling in a second Guidelines case, Gall v. U.S. (06-7949), the Court — also by a 7-2 vote — cleared the way for judges to impose sentences below the specified range and still have such punishment regarded as “reasonable.” The Justices, in an opinion written by Justice John Paul Stevens, told federal appeals courts to use a “deferential abuse-of-discretion standard” even when a trial sets sets a punishment below the range.  Chief Justice John G. Roberts, Jr., announced the opinion in Stevens’ absence.

Once I have a chance to read and reflect on the opinions in these cases, I will provide A LOT more commentary.

UPDATE: Thanks to SCOTUSblog, the opinion in Kimbrough (06-6330) is here, and here are the voting blocks:

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion. THOMAS, J., and ALITO, J., filed dissenting opinions.

The opinion in Gall (06-7949) is here, and it has similar voting blocks:

STEVENS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., and SOUTER, J., filed concurring opinions. THOMAS, J., and ALITO, J., filed dissenting opinions.

December 10, 2007 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Tuesday, November 06, 2007

Crunching the numbers on a presumption of reasonablenss

I was very pleased to learn of this new article on SSRN, which examines empirically the impact of the presumption of reasonableness for within-guideline sentences.  The article by Alex Robbins and Lynda Lao is entitled "The Effect of Presumptions: An Empirical Examination of Inter-Circuit Sentencing Disparities After United States v. Booker," and here is the full abstract:

In the two years since United States v. Booker, the circuits have divided over how to use the Federal Criminal Sentencing Guidelines when reviewing sentences imposed by district courts. Seven circuits have held that a sentence within the Guidelines range is entitled to a presumption of reasonableness on appeal; five have held that it is not.  Although the Supreme Court's recent holding in Rita v. United States allows the courts of appeals to adopt a presumption of reasonableness for within-Guidelines sentences, it does not require them to, and so the circuit split remains.

Using this circuit split as a natural experiment, we undertake what we believe to be the first statistically robust analysis of the effect of a presumption of reasonableness on sentences imposed at the federal district court level.  Specifically, using 145,047 individual-level observations recorded by the United States Sentencing Commission (comprising all recorded federal sentences in all twelve circuits for a one-year period beginning in November 2004 and ending in October 2006), we perform a multivariate regression analysis to determine how a circuit's adoption or rejection of a presumption of reasonableness for within-Guidelines sentences affects the frequency with which district courts impose below-Guidelines sentences.  We find that a circuit's adoption of a presumption of reasonableness decreases the frequency of below-Guidelines sentences by less than one percent, although this result is statistically significant.

Our results do not, however, robustly support the inverse hypothesis that a circuit's rejection of a presumption of reasonableness increases the frequency of below-Guidelines sentences. The effect of such a rejection is insignificant when we control for circuit-specific fixed effects, and appears to be driven almost entirely by the particular behavior of the Second Circuit.  Finally, we are similarly unable to find robust empirical support for the hypothesis that intercircuit differences in sentencing after Booker can be explained simply by a circuit's underlying characteristics.

November 6, 2007 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Rita reactions, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Tuesday, October 23, 2007

Rooting for the Sixth Circuit to take acquitted conduct en banc in White

As noted in this prior post, a Sixth Circuit panel earlier this month indicated that all three members would strongly recommend" en banc review of the "important question" of "whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005)."  This quoted language comes from the panel's per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).  I believe an en banc petition was filed last week in White, so now I am eagerly awaiting word on whether the White panel has convinced the majority of the Sixth Circuit to take up the acquitted conduct issue. 

As regular readers know (and as posts linked below highlight), I find acquitted conduct enhancements especially troublesome in the wake of Blakely and Booker.  Moreover, Justice Scalia's concurring opinion in Rita indicates that some within-guideline sentences depending too much on judicially found facts would trigger "as-applied" Sixth Amendment concerns even within an advisory guideline scheme.  Justice Scalia's discussion of "as-applied Sixth Amendment challenges" in Rita provides further support for a constitutional attack on use of acquitted conduct as a sentencing enhancement.

Further, a number of district court opinions suggest that sentencing courts may be taking a variety of post-Booker approaches to the consideration of acquitted conduct sentencing enhancements.  For example, a terrific district court opinion from the Eastern District of Virginia in Ibagna (discussed here) makes a strong case for why acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decision-making.  And, within the Sixth Circuit, another terrific district court opinion from the Southern District of Ohio in Coleman (discussed here) reaches a distinct conclusion about how to deal with acquitted conduct enhancements after Booker.

In short, in addition to a core constitutional issue, acquitted conduct enhancements after Booker raise interesting and important statutory interpretation and reasonableness review issues as well.  Because the Sixth Circuit has been among the most thoughtful and nuanced appellate courts trying to sort through Booker fall-out, I am very hopeful it will be the first circuit to assess these issues directly through an en banc proceeding.

Some related posts:

October 23, 2007 in Booker and Fanfan Commentary, Booker in the Circuits, Claiborne and Rita reasonableness case, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Monday, October 01, 2007

Is Gall the most important SCOTUS sentencing case?

The long-standing debate over crack sentencing policy ensures that the Kimbrough case gets lots of media attention (see here and here), and national fixation with the death penalty ensures that Baze will always be an above-the-fold story (see here and here).  Nevertheless, as we gear up for a major SCOTUS sentencing term, I think Gall may end up being the case and ruling with the greatest long-term significance and impact. 

Whether the Supreme Court uses Gall to broaden or restrict the scope of post-Booker discretion, the decision in Gall is likely to impact greatly how all district courts sentence after Booker.  The decision will also likely frame future debates over Booker as a new Attorney General (and eventually a new administration) takes stock of federal sentencing realities. 

For more on the Gall case and related issues, the Des Moines Register has this helpful article and this effective editorial.  The article notes that the Gall case "could affect criminal sentences in every federal courtroom in America," and the editorial calls for "Congress [to] eliminate the garden-variety drug prosecutions and return the federal courts to their original purpose of hearing major criminal cases that cut across state lines and exceed local authority and resources."

Some related SCOTUS new Term posts:

UPDATE:  This CNN piece about the new SCOTUS Term is headlined "Law-and-order issues top Supreme Court docket."

October 1, 2007 in Booker and Fanfan Commentary, Gall reasonableness case, Kimbrough reasonableness case, Rita reactions, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, May 29, 2007

Editorial supporting more sentencing discretion for federal judges

Perhaps sensing that it is possible (but I think unlikely) that SCOTUS decides Claiborne and Rita today, the Des Moines Register has this new editorial entitled "Let federal judges use judgment in sentencing."  The editorial complains about the Eighth Circuit's reversal last week of a below-guideline sentence in US v. Pepper (discussed here).  Here is the heart of the editorial:

This [Pepper] case illustrates the problem with federal sentencing rules.  Besides shackling judges from tailoring sentences to individual offenders, they tend to produce vastly longer prison sentences.  And, by relying heavily on recommendations from prosecutors, the rules give more discretion to U.S. attorneys than judges.

The Supreme Court, in striking down the sentencing rules in 2005, said mandatory sentencing rules violate a defendant's Sixth Amendment right to trial by jury because the sentence formula uses information gathered after the trial, not on facts presented to the jury.  Since then, however, federal appeals courts — including the 8th Circuit, which has jurisdiction over Iowa — have still enforced the old guidelines as if they were mandatory.

May 29, 2007 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Friday, May 25, 2007

More great stuff from the FSG conference

As I had expected, the morning plenary panels on the last day of National Seminar on the Federal Sentencing Guidelines in Salt Lake City were stellar.  Here are two particular highlights:

1.  As emphasized by all the district judges, the reality of post-Booker sentencing varies dramatically for circuit to circuit (although such circuit variations were common before Booker, too).  Providing a dramatic capper on this reality, judge Gerald Lee of theEastern District of Virginia said simply from the audience "The guidelines are mandatory in the Fourth Circuit."

2.  Deputy SG Michael Dreeben predicts that "Claiborne and Rita will be close votes and will be decided in the second week of June."  I think both predictions are very sound (but certainly not certain).

May 25, 2007 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Friday, April 13, 2007

More weekend Sixth Amendment reading

For anyone seeking a weekend reading companion to "Apprendi's Domain" (discussed here), there is another newly published piece on sentencing after the Supreme Court's modern Sixth Amendment revolution.  I fear this piece is only available via paid on-line services, but here's the cite and the introduction's first paragraph:

Graham C. Mullen & J.P. Davis, Mandatory Guidelines: The Oxymoronic State of Sentencing After United States v. Booker, 41 U. Rich. L. Rev. 625 (2007):

"Like a vampire buried without a stake, mandatory sentencing guidelines have been resurrected to stalk our jurisprudence once more.  When the Supreme Court announced the end of the mandatory Sentencing Guidelines regime in United States v. Booker, many expected to see a major paradigm shift in the way sentences were handed down. A year and half has passed since Booker, but little has changed.  Judges are still enhancing sentences based on facts neither found by a jury nor admitted by the defendant, and nearly two-thirds of all sentences are within the prescribed Guidelines range, a difference of less than ten percent from pre-Booker levels. While the principal results of sentencing remain the same, the logistics of sentencing have changed. Sentencing has become more complicated than ever before and consumes more judicial time and resources.  The ultimate result is that the constitutional issues behind Booker and its parent case Apprendi v. New Jersey have been glossed over while the federal courts grow more backlogged in the process."

April 13, 2007 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack