Wednesday, March 02, 2011

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

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

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

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

SCOTUS rules in Pepper, again stressing sentencing discretion after Booker

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

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

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

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

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

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

Saturday, February 19, 2011

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

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

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

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

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

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

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

Monday, January 03, 2011

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

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

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

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

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

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

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

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

Monday, December 20, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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