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

Monday, April 09, 2007

Noticing an upward variance pattern

Ifrah_butler This article at Legal Times, entitled "Hard Hits: Departures From Sentencing Guidelines Seem Immune From Scrutiny When National Security Invoked," spotlights that Booker has proved to be more of a curse than a blessing for certain sets of defendants.  Here is how the piece begins:

Despite new freedom in sentencing criminals, federal district courts are mostly staying within the U.S. Sentencing Guidelines — with one significant exception.  That exception is national security.

For defendants in these cases, the news is grim: Upward departures based on national-security concerns have not only been upheld in every case but have also resulted in sentences that exceed the guidelines by as much as 333 percent.  And these extremely high sentences often have been imposed and affirmed without compelling reasons for such strong punishments.  This trend is troubling, and it deserves closer scrutiny.

April 9, 2007 in Booker and Fanfan Commentary | Permalink | Comments (2) | TrackBack

Saturday, April 07, 2007

Should departures depart after Booker?

I am very proud to recommend a terrific new Note on SSRN authored by an OSU student, Lee Heckman.  The piece, available here [new fixed link], is entitled "The Benefits of Departure Obsolescence: Achieving the Purposes of Sentencing in the Post-Booker World."  Here is the abstract:

Since the Supreme Court decided United States v. Booker, much scholarly debate has focused on what weight the Sentencing Guidelines should be given by district courts in sentencing and appellate courts reviewing those sentences.  But this focus does not advance what should be the central issue in all sentencing decisions: whether the purposes of sentencing are being fulfilled by the sentence imposed.  The Booker opinion should be seen not only as creating a system of advisory Guidelines, but also as an attempt to refocus the sentencing inquiry on 18 U.S.C. Section 3553(a).  Nowhere is this more relevant than in the case of a defendant seeking a reduced sentence.  Prior to Booker, this was limited to narrowly defined departures from the applicable Guideline Sentencing Range. But because pre-Booker departure decisions were largely devoid of Section 3553(a) analysis--and in the case of departures based on discouraged factors, were only based on the extraordinariness of the defendant's situation--many departures were purposeless. Therefore, pre-Booker departure precedent should largely be discarded.  Thus far, only the Seventh Circuit (and the Ninth Circuit to a lesser degree) has declared departures obsolete.  Departure obsolescence, however, should be recognized by all courts and should be replaced with a jurisprudence that reduces sentences based on Section 3553(a)'s purposes of sentencing.

As Larry Solum might say, "Download it while its hot!"

April 7, 2007 in Booker and Fanfan Commentary | Permalink | Comments (2) | TrackBack

Friday, March 30, 2007

Archive of AFDA webcast

As noted here, earlier this week Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), enabled me to again utilize the AFDA's cool Audio Webcast System for a lengthy discussion of various state-of-post-Booker-sentencing realities.  Greg has now kindly created this audio file of the webcast for anyone who would still like to hear what I had to say.

As noted before, Greg provides a complimentary password registration system for members of the federal court community (judges, law clerks, federal public defenders, probation officers), and members of academia, at this sign-up page.  And everyone should want to sign up for the next AFDA webcast, which is scheduled for April 23 with Alan Dorhoffer, senior staff attorney at the Sentencing Commission, discussing guideline application topics.

March 30, 2007 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Monday, March 26, 2007

Another AFDA webcast on Booker developments

I have been working again with Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), to again utilize the AFDA's cool Audio Webcast System.  As detailed here, my second audio webcast is scheduled for this Tuesday (March 27) at 12noon EST. 

The basic plan is to provide an "informal, 90-minute discussion covering key developments in federal sentencing."  I expect to focus on what we might take away from the Claiborne and Rita arguments and other current legal and political realities surrounding federal sentencing these days.

Unlike other groups seeking big bucks for such webcasts, the AFDA only charges a nominal fee for participating and the webcast is made available free to all federal court personnel, federal public defenders, and full-time law professors and students.  I am grateful to Greg and the AFDA for putting this event together, and I hope to continue participating in these sorts of user-friendly webcasts on a regular basis if it helps folks trying to sort out the post-Booker world.

March 26, 2007 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Wednesday, March 07, 2007

The latest USSC Booker data

I am very pleased to see a new quarterly update with the latest, greatest post-Booker sentencing data available at this link over at the US Sentencing Commission's Booker webpage.  Here's how the USSC describes this data:

Quarterly Sentencing Update (Published March 7, 2007): An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2007. The numbers are prepared using data sentenced by close-of-business on December 31, 2006 and received, coded, and edited by the Commission by February 27, 2007.

I am about to head into a faculty meeting, and this data report makes for great multi-tasking materials.  I'll update this post later if any really suprising numbers jump out of this new data snapshot.

UPDATE:  Based on Figure C in this report, it appears that average sentences after Booker continue to rise, and may have experienced a (statistically significat?) up-tick from October 1 to December 31 2006.  Also, the circuit-by-circuit variations in prosecutor-inititated and judge-initiated below-range sentences are quite intriguing.

March 7, 2007 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

Monday, February 12, 2007

More mile-high Booker insights

Last year the Denver University Law Review published Judge Michael McConnell's great insights on "The Booker Mess" (discussed here).   Now I have learned that another insightful Booker piece is in the works at the DULR in the form of a forthcoming law review comment from student Jeff Hurd, entitled "Federal Sentencing and the Uncertain Future of Reasonableness Review."  Jeff kindly arrange for advance posting in this space, and the piece can be downloaded below.  The comment laments the circuit courts' guideline-centric approach to reasonableness review since Booker (which is termed "Booker minimalism"), and provide another nice and valuable read as folks rev up for next week's oral arguments in Claiborne and Rita.

Download hurd_du_law_vol.84.3.pdf

February 12, 2007 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

When will there be more official post-Booker data?

As I have mentioned before, the US Sentencing Commission initially did a great job producing (on this page) real-time data on how Booker was affecting (or not affecting) federal sentencing outcomes in the district courts.  But, after its March 2006 report on the first year after Booker, real-time sentencing data from the USSC has been in short supply.  And, even more disappointingly, the Commission has not publicly explored some of the most dynamic post-Booker data issues such as defendants' fates after remands (cf. Judge McConnell's insights in Medley) or post-Booker sentencing outcomes for white-collar or other particular types of offenders. 

The absence of new and up-to-date sentencing data from the USSC is especially troubling given that the Supreme Court is exploring post-Booker sentencing realities and reasonableness review in Claiborne and Rita.  In addition, transitions in Congress could and should facilitate new conversations about post-Booker legislative reforms, and the USSC ought to be prompting such conversations through sophisticated data analysis about post-Booker sentencing realities.

I continue to want to hopeful and optimistic about the USSC's ability to encourage sensible, data-focus post-Booker reforms.  But, as the Booker data silence grows more deafening, the USSC's post-Booker work is looking even more uninspiring.

Some recent (and older) related posts:

February 12, 2007 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Tuesday, February 06, 2007

AFDA federal sentencing audio webcast today

Self-promoting reminder: As noted here, my first AFDA audio webcast is scheduled for this morning (Feb. 6) at 12noon EST.  The plan for this webcast is to provide an "informal, 60-minute discussion covering key developments in federal sentencing."  The AFDA only charges a nominal fee for participating is made available free to all federal court personnel, federal public defenders, and full-time law professors and students.

PM UPDATE: Though there was a mid-session technical glitch, I enjoyed the opportunity to use the AFDA's audio webcast to prattle on about Booker, Cunningham and Claiborne and Rita through a different medium.  If any readers listened in, I hope they wll provide feedback in the comments to this post.  Thanks.

February 6, 2007 in Booker and Fanfan Commentary | Permalink | Comments (3) | TrackBack

Saturday, January 13, 2007

A belated Booker birthday wish

I forgot to note yesterday that Booker is now two years old; the decision converting the federal guidelines from mandates to advice was handed down the morning of January 12, 2005.  Happy (belated) birthday Booker!

As Booker begins the terrible twos, I am not sure what I find most surprising: (1) that the ruling has changed so little about the operation of the federal sentencing system; (2) that Congress passed fewer ugly federal sentencing laws in the two years after Booker than it did in the two years before Booker; or (3) that we still do not have answers to a lot of the issues and questions I discussed on this blog in the first 24 hours after the ruling.

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

Friday, December 08, 2006

Another notable Note on the Sixth Amendment's reach

In this recent post, I spotlighted a new Columbia Law Review Note exploring how Blakely might affect orders of restitution and forfeiture.  Today it's time to note a notable Note in the Yale Law Journal.  This Note is entitled "Sentencing Organizations After Booker" and is available at this link. Here is the abstract:

In United States v. Booker, the Supreme Court held that courts violate individuals’ right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines.  The Supreme Court, however, has never decided exactly when organizations are entitled to a criminal jury.  Accordingly, Booker's full implications for the organizational sentencing guidelines are not immediately clear.  Nonetheless, a careful reading of the law suggests that organizations are entitled to a jury in at least most federal criminal cases and thus that Booker's logic should apply to the organizational guidelines.

December 8, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Thursday, December 07, 2006

What the latest USSC data reveal

Though I have not yet assessed all the particulars, the latest USSC sentencing data (basics here) suggest that the circuits' anti-defendant tilt in their approach to reasonableness review is significantly impacting the rate at which district judges go below the guidelines.  (Some recent evidence of the circuits' anti-defendant tilt appears here and here, older evidence is here.)

Here's what I noticed from the last three data reports from the USSC's Booker page.  District judges were going below the guidelines (either via departures or variances) in 12.4% of all cases through June 1 in Fiscal Year 2006.  The data through June 30, however, showed judges going below the guidelines in only 12.1% of all cases in FY 2006.  The latest stats through September 30 now show that judges went below the guidelines in only 11.9% of all cases for all of FY 2006. 

Because these number are cumulative, this accounting does not reflect the particularly low variance rate for the last two quarters of FY 2006.  My rough guess is that judges have been downward varying in less than 1 of every 10 cases over the last two quarters of FY 2006.  Also Figure I in this latest data run shows that some average drug sentences have gone way up the last two quarters (especially for crack and meth); Figures A and B suggest this may be because district judges now varying less in these cases.

December 7, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Wednesday, December 06, 2006

Latest Booker stats from the USSC

I am pleased to discover that, over at the USSC's Booker page, one can now find the latest "Quarterly Sentencing Update."  Available at this link, this data update provides an "extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2006.  The numbers are prepared using data sentenced by close-of-business on September 30, 2006 and received, coded, and edited by the Commission by November 27, 2006."

The timing is great for me, because I now have to go into a faculty meeting in which a USSC data report will seem interesting.  Late tonight I hope to provide some commentary on what this latest data might show, but for now I'll just link below to some of my prior data commentaries:

Recent posts on past Booker data and related issues:

December 6, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Tuesday, November 28, 2006

Please feed the data junkies, USSC

For over a year following Booker, the US Sentencing Commission did a great job producing (on this page) real-time data on how Booker was affecting (or not affecting) federal sentencing outcomes in the district courts.  (During that time, it also did a great job catching up on pre-Booker data responsibilities).  But, over the last six months, real-time data from the USSC has been in short supply; the last official post-Booker district court sentencing data only captures sentencings through June 30, 2006. 

Moreover, and more disappointingly, the Commission has not publicly discussed some of the more dynamic post-Booker data issues such as defendants' fates after post-Booker remands or post-Booker sentencing outcomes for white-collar offenders.  And even though the Supreme Court has now taken up reasonableness review in Claiborne and Rita, the USSC has not produced any data at all about post-Booker appeal rates or outcomes.

I am hopeful (and fairly optimistic) that we will soon see a new batch post-Booker district court sentencing data.  I am also wishing (and far less optimistic) that some new and different kinds of post-Booker data will emerge from the USSC before the year is out.

November 28, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Wednesday, November 08, 2006

The big other branch questions after the election

In response to prior posts here and here, commentators have suggested that Democrats now in power in Congress are unlikely to push significant sentencing reform that could subject them to attacks for being "soft on crime."  Though I am hopeful that split federal government might lead to a more balanced sentencing policy discussion, I think the really big questions now are how the sentencing work of other branches are impacted by the changes in Congress:

1.  Will DOJ continue to push for topless guidelines?  Though I was never sure the Justice Department really wanted a topless guidelines system, its express advocacy for this sort of Booker fix has influenced both the politics and practices of the post-Booker world.  I am eager to see if, when and how DOJ might change its Booker fix tune in light of the new balance of power in Congress.

2.  Will the Sentencing Commission and federal judges be bolder?  Over the last two years, I have repeatedly heard the USSC and federal judges express concerns about possible congressional backlash to any pro-defendant changes in the federal sentencing system.  Sentencing Commissioners have suggested Congress would might react poorly if the USSC made a bold move on the crack/powder guidelines.  The high within-guideline sentencing rate after Booker reflects, in part, district judges' concerns about Congress's response if judges too frequently varied from the guidelines.  Might these inter-branch dynamics change significantly now?

November 8, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

A prosecutorial perspective on Booker

I was recently sent this link to a fascinating Booker resource: the September 2006 issue of the US Attorneys' Bulletin, which has a series of articles on Booker written from a prosecutorial perspective.  Here are the articles you will find:

November 8, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Friday, October 13, 2006

Is a Booker reasonableness cert grant on the horizon?

Among other fun matters to debate after the SCOTUS Cunningham oral argument this week (debated here and here) is whether the Court might now be more (or less) likely to grant cert soon on a Booker issue.  As detailed in posts linked below, I believe the Court needs to take up a federal sentencing case ASAP to provide lower courts with clearer and more uniform guidance about the rules and procedures for post-Booker federal sentencing.

A helpful reader noticed that two paid cases from the Seventh Circuit, Boscarino and Lister, are both listed for the Court's October 27 conference (see SCOTUS schedule here and here, case background here and here).  These cases, and surely lots of pauper petitions also before the Court, likely focus on the question of whether it is proper for a guideline sentence to be deemed presumptively reasonable on appeal.

Some related posts:

October 13, 2006 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

Tuesday, September 26, 2006

Seeking cert-worthiness: good post-Booker SCOTUS vehicles?

As noted here, the Supreme Court did not grant cert on any major criminal cases today. But, as discussed here, the Cunningham and Burton cases already scheduled for fall argument satisfy my ache for post-Blakely issues on the SCOTUS docket.  The big brewing question, as I have previously discussed here and here, concerns when and how the Supreme Court will take up a post-Booker federal sentencing case. 

Late last week I received a copy of a cert petition filed in US v. Thurston, a case coming from the First Circuit (discussed here) where the panel ruled that a large downward variance was unreasonable (despite being supported by two district court rulings), and then strangely declared that a sentence of at least 36 months was likely needed to survive reasonableness review.  I view Thurston as one of perhaps many suitable cases that the Supreme Court might use to provide much-needed clarity about post-Booker sentencing procedures and reasonableness review.  Interested readers can download the Thurston petition here:

Download thurston_cert_petition.pdf

A few recent related posts:

September 26, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Thursday, September 21, 2006

What's next on crack sentencing after Gunter?

I have received calls from reporters following up the Third Circuit's Gunter ruling (basics here, commentary here and here) asking about the decision's broader significant for crack sentencing in the federal system.  Because the Gunter decision is so nuanced, as discussed here, a lot depends on how others react to it.  (For more background and one thoughtful reaction, check out this long post on Gunter from the Third Circuit Blog.)

Though I though the government might seek en banc in Gunter, another brewing Third Circuit case on crack sentencing might also lead it to hold its powder for now.  Most important to these broader stories, at least in the short term, may be whether and how other circuits react to Gunter.  Long-term, crack sentencing may depend a lot on when and how the Supreme Court and the US Sentencing Commission (which has a public meeting today) starts dealing with broader Booker issues.

A few related crack sentencing posts:

September 21, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Wednesday, September 20, 2006

"Chaos in Sentencing"

In this interesting column entitled "Chaos in Sentencing" for the Washington Post, Andrew Cohen writes about "two vital court rulings were issued in August highlighting the extent to which our federal sentencing rules and policies are broken."  Here are a few highlights:

Last month, the irrepressible U.S. District Court Judge William G. Young in Boston dropped upon an unsuspecting nation a 125-page ruling -- a mini-treatise, really -- on what is currently wrong with federal sentencing law, why this is so, and what judges and elected officials can and should do about it.  Then, a few days later, a divided 8th U.S. Circuit Court of Appeals [typo alert: should be 6th Circuit] overturned a capital sentence for a fellow name Jason Getsy after concluding that his punishment from the Ohio courts was "arbitrary" and unfair and thus a violation of the Eighth Amendment's prohibition against "cruel and unusual" punishment.

Taken together, the two rulings represent the sorry state of the art in an area of the law that the United States Supreme Court tried to revamp last year in United States v. Booker when it held unconstitutional the mandatory nature of the Federal Sentencing Guidelines.  Both orders focus primarily upon plea bargains and their corrosive impact upon fairness in federal sentences.  Both orders take to task the existing sentencing regime, such that it is. Both remind us of the constitutional need for a nexus between crime and punishment, verdict and judgment.  Both make compelling cases for how and why Congress and the Supreme Court have utterly failed to fix sentencing problems that have been apparent and growing worse for years.

I am not sold on the link between Booker and the Sixth Circuit's habeas work in Getsy.  But I do very much like Cohen's promotion of Judge Young's terrific Kandirakis opinion (basics here), as well as the overall spirit of Cohen's kvetching about the modern state of sentencing.  Of course, as detailed in some posts below, there are plenty of suggested solutions.

Some related posts:

September 20, 2006 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

Thursday, August 17, 2006

Extraordinary paper on post-Booker sentencing

Amy Baron-Evans, the National Sentencing Resource Counsel to the Federal Public and Community Defenders, has produced an extraordinary memorandum entitled "The Continuing Struggle for Fair, Effective and Constitutional Sentencing After United States v. Booker."  This document, which can be downloaded below, is filled with 70+ pages of insights worth quoting.  Here is just one of many passages worth highlighting: 

Defense counsel must help to ensure that judges retain and exercise their sentencing power by providing arguments to support reasoned decisions that will be upheld on appeal (or not appealed at all), that Congress can respect, and that the public can understand. There are powerful arguments to be preserved below and raised in petitions for certiorari that post-Booker sentencing violates the sentencing law under basic principles of statutory construction, the Sixth Amendment right to jury trial, the Fifth Amendment right to proof beyond a reasonable doubt, and the Sixth Amendment right to confront and cross-examine adverse witnesses. But, as we have seen, legal arguments are not enough.

Even in circuits that have rejected presumptive guidelines, the guidelines provide a comfortable numerical anchor, and many judges have little knowledge of the guidelines' history and development other than what they are being told by advocates of the status quo....  Thus, regardless of what circuit you are in or what stage of the litigation, it is necessary to demonstrate as a factual matter that the guidelines do not comply with 18 U.S.C. § 3553(a), and that a lower sentence does a far superior job.

Download struggle_for_constitutional_sentencing_after_booker.rev.8.16.06.doc

August 17, 2006 in Booker and Fanfan Commentary | Permalink | Comments (6) | TrackBack

Wednesday, August 16, 2006

Taking stock of post-Booker circuit splits

In this recent post, where I pondered when and how the Supreme Court will take up a case addressing post-Booker reasonableness review, I mentioned that the circuits are split on a various aspects of federal sentencing after Booker.  Here I want to briefly chronicle major splits and ask for reader help in identifying any I have overlooked.

1.  The presumption of reasonableness:  The circuits are nearly evenly split on whether a within-guideline sentence should be afforded a presumption of reasonableness on appeal.  But, since nearly every within-guideline sentence gets affirmed with or without the presumption, this split seems more a matter of style than substance.

2.  The persistence of Rule 32(h):  The circuits are nearly evenly split on whether Rule 32(h) requires a district court to give advance notice before varying from the advisory guidelines range.  Though this is significant split, I suspect most district courts give the parties some opportunity to address key 3553(a) factors before sentencing, and thus I doubt this split is very consequential in most cases.

3.  The role of "traditional" departures: The Seventh Circuit has pioneered the notion that "traditional" departures are obsolete after Booker, and the Ninth Circuit has recently echoed this sentiment.  But most other circuits (and the Sentencing Commission) have expressly called for district courts to conduct a departure analysis before considering 3553(a) factors.  Though this might seem like a matter of semantics, the role of departures can ripple through many aspects of the post-Booker world (as discussed here and here); I think this is an important issue that someone needs to resolve in order to have a more uniform federal sentencing system.

4.  The applicable version of the guidelines:  The Seventh Circuit's recent Demaree ruling (discussed here and here) held that, after Booker, district courts may (and should?) apply the most recent version of the now-advisory guidelines even when they recommend a longer sentence than the guidelines applicable at the time of the defendant's crime.  But other courts and litigants have been operating under the pre-Booker rules for using the guidelines applicable at the time of the crime.  Though an intricate ex post facto matter, this issue could have more impact on post-Booker sentencing than any other issue listed here (especially in white-collar cases and other cases in which the guidelines have changed a lot in recent years).

There have been, of course, lots of post-Booker splits in the district courts about crack sentencing, fast-track policies, acquitted conduct, burdens of proof and other large and small issues.  But some of these issues have been harmonized by circuit rulings, and none have to date produce a tangible circuit split.  There may be, however, other important splits I have not mentioned, and readers are encouraged to supplement my list.

August 16, 2006 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

Tuesday, August 15, 2006

Federal sentencing around the blogosphere

The federal defender blogs, as well as the White Collar Crime Prof Blog, have a lot of recent posts about notable recent federal sentencing developments:

August 15, 2006 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

Thursday, August 10, 2006

When and how should SCOTUS take up reasonableness review?

With the Eleventh Circuit today in Hunt thoughtfully rejecting a presumption of reasonableness for within-guideline sentences (details here), I am wondering when and how the Supreme Court will take up a case addressing post-Booker reasonableness review.  The circuits are split not only on this presumption issue, but also on a range of other large and small aspects of the standards and nature of appellate review after Booker

Because I think the circuits are very wrong when forcing district courts to follow the crack guidelines (as discussed here and here), I am hoping SCOTUS might explore reasonableness through review of a cracked-up crack ruling like Jointer from the Seventh Circuit or Eura from the Fourth Circuit.  But these cases raise so many hot button issues, perhaps the Court would be wise to take a lower profile case.   (Of course, the Court did use the high-profile Rodney King case a decade ago to consider departure authority in Koon.)

Given that a legislative Booker fix does not seem likely in the short term (as discussed here), the Supreme Court should no longer resist exploring reasonableness review on the assumption that the Booker remedy may not last.  Of course, the Court might indirectly address these issues in the Cunningham case from California to be argued in October.  Nevertheless, the federal sentencing world could be much more orderly (and less disparate) if the Supreme Court were to directly  address reasonableness review ASAP.

August 10, 2006 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, July 12, 2006

Booker developments (that I can't fully process)

For some reason, I cannot currently access pdf files with my on-the-road computer.  This means I can provide only a vague report on two notable Booker developments:

If I get access to a pdf-friendly computer anytime soon, I might have some commentary on these developments.

July 12, 2006 in Booker and Fanfan Commentary | Permalink | Comments (2) | TrackBack

Sunday, July 09, 2006

Will there be any Booker fireworks this summer?

A few weeks ago, I noted here how quiet the post-Booker world seems.  After Congressman James Sensenbrenner sent up incediary Booker bottle rockets back in March (details here and here), I was prepared for a summer filled with Booker fix fireworks.  But, with July 4th now come and gone, I am thinking we might have an unusually calm pre-election sentencing summer. 

Though my ivory-tower perspective may be skewed in various ways, here is my current branch-by-branch take on the post-Booker landscape:

The legislative branch:  The Booker ruling put the sentencing ball in Congress's court, but Congress has shown little interest in playing over the last 18 months.  A few bills for topless guidelines have been discussed, but no serious Booker fix momentum has ever developed.  I am, of course, pleased that the many dire predictions about what Congress would do after Booker have not (yet) come true.  Post-Booker legislative (non)developments provide another reminder of the complicated and dynamic political and practical realities that surround sentencing reform.

The executive branch: The Justice Department has been advocating a "minimum guideline system" since last summer, but its push for such a system seems tepid.  My latest thinking is that DOJ does not want all the messy litigation and uncertainty that would follow enactment of a topless guideline system.  Rather, advocacy of such has been an effective means for encouraged federal judges to play nice with advisory guidelines, which in turn has presereved much of the pre-Booker system.

The judicial branch:

  1. The Sentencing Commission has crunched a lot of numbers since Booker, but it has done precious little policy work and has avoids post-Booker "hot spots" like crack sentencing or the use of acquitted conduct.  Because the guidelines have remained king after Booker, it is perhaps not surprising that the USSC is content to produce lots of data and few recommendations.
  2. The lower courts have divided over many post-Booker particulars, but the circuits have ensured that the guidelines are still the center of the federal sentencing universe.
  3. The Supreme Court has steered clear of any Booker follow-up so far, but next Term's consideration of Blakely's applicability in California in Cunningham could have significant ramifications for federal sentencing after Booker.  Also, if Congress continues to show little interest in a Booker fix, I suspect the Court will seriously consider taking up some post-Booker issues directly next Term.

July 9, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Wednesday, June 28, 2006

All quiet on the Booker front?

With the Supreme Court issuing lots of criminal law opinions and with the death penalty doing its usual job of hogging up attention, I have not given much thought to the post-Booker world lately.  Moreover, except for the regular wins by prosecutors in the Eighth Circuit (examples here and here and here), there have been surprisingly few notable Booker opinions in the circuit courts recently.  And the Sentencing Commission, which was producing updates of post-Booker sentencing statistics on this page every few weeks not long ago, now has only produced one update in the last three month.

So I am now wondering, as we approach a full 18 months since the Booker ruling, has everyone started to settle in for the long haul with the Booker remedy? 

Of course, the most critical institution to focus upon is Congress, which could use a debate over a legislative Booker to make crime and punishment issues the next political rhetoric topic du jour.  As noted in this this recent post, a "topless guidelines" Booker fix bill has been in draft form for a number of weeks.  But this bill has not yet even been introduced in the House, and there is no evidence that either body of Congress is ready to move quickly on a massive restructuring of the federal sentencing system. 

Last September in this post, I had the temerity to ponder whether the Booker remedy might be here to stay.  Nearly a year later, the prospects seem even brighter.  Then again, maybe this is just the calm before the storm.

June 28, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Wednesday, June 07, 2006

Encouraging a critical race examination of post-Booker developments

During the Miami FSG conference, one troubling idea kept coming to mind: white defendants seem to be doing better than minority defendants in the post-Booker world. 

Notably, the Sentencing Commission's March Booker report asserts that, after Booker, "black offenders are associated with sentences that are 4.9% higher than white offenders."  And here are other notable data from post-Booker statistics:

In addition to these data points from the post-Booker world, consider also these qualitative realities:

With these comments, I do not mean to make a blanket assertion that racial bias infects the post-Booker world.  But I do hope to encourage everyone to examine closely post-Booker developments through the lens of race and to explore critically whether there may be skews in how increased discretion is being applied in the federal sentencing system after Booker.

Some related posts on race and federal sentencing:

June 7, 2006 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, May 30, 2006

Interesting split Fifth Circuit ruling on "execution impact" testimony

Splitting on an intriguing issue about capital sentencing procedure, the Fifth Circuit today in Jackson vs. Dretke, No. 05-70031 (5th Cir. May 30, 2006) (available here) resolves a habeas case by refusing a certificate of appealability to a defendant on "his challenge to the exclusion of execution impact testimony." (At the sentencing phase of his state trial, the defendant sought "to question his friends and family on (1) whether they wanted him to die and (2) what the impact on them would be if he were executed.") 

The majority opinion authored by Judge Smith concludes that "it was not objectively unreasonable for the state court to decide that extant Supreme Court holdings should not be extrapolated to include testimony as to the impact of a death sentence on family and friends."   The dissenting opinion by Judge Dennis reasons that the habeas challenge merits further exploration, in part because "[e]xecution impact testimony easily satisfies [a] sentencing relevance test — it is testimony as to the value of the defendant's life and cost of his death to family and friends, and this value or cost could serve as a basis for the sentencer to determine that the death penalty should not be imposed."

May 30, 2006 in Booker and Fanfan Commentary, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, May 24, 2006

Latest FSR issue now on-line

The latest issue of the Federal Sentencing Reporter (Volume 18, No. 3), which is entitled "Taking Stock a Year After Booker" and discussed in this post, is now available on-line through the Caliber service at this linkFSR's publisher has kindly made these two articles from the issue available free on-line:

Details on other recent FSR issues:

May 24, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack