Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Below-guideline sentence for corrupt Alaska state representative

As detailed in this local article from Alaska, which is headlined "Former Alaska rep gets 6 months in state's bribery scandal," another high-profile white-collar offender has received another high-profile below-guideline federal sentence.  Here are the details:

Former state Rep. Beverly Masek was sentenced to six months in federal prison today for her part in the Alaska political corruption scandal, a lenient punishment that sliced a year from the minimum confinement recommended by federal guidelines.

U.S. District Judge Ralph Beistline said Masek betrayed the public trust and the oath of office she took five times in Juneau -- one for each of the two-year terms she served representing the Willow area in the Legislature.  Masek admitted taking two illegal payments in 2003 of $2,000 each from former Veco Corp. chief executive Bill Allen, the second time in payment for spiking an oil-tax bill. Allen, an oil-field contractor, was concerned that the tax bill would hurt his clients.

In delivering a sentence substantially below the 18- to 24-month recommendation in federal guidelines, Beistline cited the long delay between the commission of the crime and its prosecution by federal authorities, who didn't charge Masek until March.  She pleaded guilty to conspiracy to commit bribery.

Masek, 45, a former Iditarod musher, cried throughout the 80-minute hearing, including when she promised to obtain sobriety treatment after her prison sentence.  "I feel I've been operating on a broken sled runner," Masek said, recalling her days has a dog musher. "I feel I've been on that broken sled runner for quite a while. I'd really like to fix it."

Astute views from the district court about post-Booker sentencing realities

As noted in this prior post, today the US Sentencing Commission started yet another one of its regional public hearings.  This fourth regional public hearing is taking place in Chicago, and this official agenda details the a fascinating group of invited witnesses scheduled to testify.  And now some of the submitted written testimony is linked via the agenda. 

Though I would recommend that everyone read all of the linked submitted testimony now available this official agenda, I want to put in a special plug for the submissions from the district judges.  In various way, all the realities of sentencing "cash out" in front of sentencing judges, and thus the insights and concerns expressed by federal district judges seem especially important.  And, based on my quick scan, the insights and concerns expressed by these district judges testifying this morning in Chicago seem especially astute and worthy of this blog shout out:

• Testimony of James F. Holderman, Jr., Chief District Judge, Northern District of Illinois
• Testimony of Jon P. McCalla, Chief District Judge, Western District of Tennessee
• Testimony of Philip Peter Simon, District Judge, Northern District of Indiana

Yet another district judge formally adopts 1-to-1 crack/powder sentencing ratio

As detailed in this effective local article, a federal judge in Pennsylvania has now "said 'sound policy reasons' — including the new stance of the Justice Department — led him to reject long-established guidelines for sentencing crack-cocaine defendants."  Here are more basics from the article:

Senior U.S. District Judge Maurice B. Cohill Jr. characterized the guidelines as unfair.... Cohill rejected the crack-cocaine guidelines for two defendants, whom he sentenced in Erie Aug. 4. He issued two nearly identical written opinions on Thursday that detailed his reasoning.

The chief federal prosecutor in Erie, Assistant U.S. Attorney Marshall Piccinini, told Cohill last week that the guidelines were meant to consider the intense high and craving that crack cocaine brings compared to powder cocaine. As Cohill said in his written decisions, the guidelines also assumed that violence accompanied the trafficking of crack.

Piccinini said his office would file no motions objecting to Cohill's decision in the crack cases.

The rulings referenced here came in US v. Owens and US v. Russell, and here is how the Russell decision (which is uploaded below) gets started:
 

Defendant Cleotis Eugene Russell, Jr. appeared before this Court for resentencing on August 4, 2009.  At Mr. Russell’s original sentencing hearing on November 28, 2007, I rejected Mr. Russell’s request to vary from the guideline range based on the imbalance in sentencing between crack and powder cocaine.  The United States Court of Appeals for the Third Circuit remanded this case for resentencing because the United States Supreme Court in Kimbrough v. United States, 128 S. Ct. 558 (2007) and Spears v. United States, 129 S.Ct. 840 (2009), effectively overruled United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), a case I relied upon in rejecting Mr. Russell’s request for a variance.  At resentencing I applied a 1-to-1 crack-to-powder ratio, an approach to sentencing in crack cocaine cases which I intend to apply in all future crack cocaine sentencings. I write this Opinion to explain my reasons for this.

Download Russell crack opinion

Some recent related posts:

• Thoughtful new district court opinion adopting 1:1 crack/powder ratio
• Another district judge adopts 1-to-1 crack/powder sentencing plan
• Noting the latest state of the crack-powder sentencing debate
• "Momentum Builds to Equalize Cocaine Penalties"
• Still more potent talk from AG Holder about federal sentencing reform
• With the new DOJ advocating completely eliminating crack/powder disparity, now what?
• DOJ's basic game-plan while urging crack sentencing reform from Congress

Notable new paper with interesting post-Booker data analysis

This new paper on SSRN by Ryan Scott, which is titled "In Search of the Booker Revolution," presents new data and analysis on how one district is sentencing after Booker.  Here is the abstract:

In 2005, the Supreme Court in United States v. Booker rendered the United States Sentencing Guidelines advisory.  Arriving after eighteen years of complex and mandatory sentencing rules, the decision initially was heralded as revolutionary, both by critics and defenders of the federal Guidelines. But subsequent reports by the Sentencing Commission have shown few signs of a Booker revolution, revealing surprisingly modest changes.  The existing research on post-Booker sentencing is incomplete, however, because it has not examined the response of individual judges to the decision.  That omission is critical, given that the reduction of inter-judge disparity was the central purpose of the Guidelines. Studying sentencing patterns by individual judges is notoriously difficult because the Commission does not disclose the identity of the sentencing judge when releasing case records.  But one district court — the District of Massachusetts — has adopted a unique policy that makes key sentencing documents available to the public, allowing the analysis of judge-specific data.

This Article offers the first empirical evidence of individual judges’ responses to Booker, drawing on a dataset of sentences from 2002 to 2008 by judges in Boston who share a common case pool.  An analysis of those sentences suggests a modest but clear increase in inter-judge disparity since Booker.  The strength of the relationship between the identity of the sentencing judge and sentence length has increased, by some measures 60-80% above pre-Booker levels.  The identity of the judge also has become a stronger predictor of sentencing relative to the Guidelines: some judges now sentence outside the guideline range more frequently, and to a greater extent, than their colleagues.  Although it is difficult to know whether similar trends have played out in other districts, the Boston data suggest that judges’ disagreements about the Guidelines have a greater effect on sentencing outcomes since Booker. 

This interesting and important data provides a vakuable new empirical perspective on Booker's impact, though the District of Massachusetts is not a perfectly representative sentencing district for lots of reasons.  Still, for everyone eager to get a handle on Booker's impact in at least one district, this paper provides the latest, greatest view from the sentencing courts.

Noting the realities of federal sentencing after Booker in corruption cases

This new article in the Philadelphia Inquirer, which is headlined "Federal judges freed from sentencing rules," spotlights how the discretionary federal sentencing regime created by Booker has been playing out in corruption cases.  Here is how it starts: 

Both were powerful state senators. Both were found guilty of fraud. And both submitted reams of letters from supporters who hailed their good deeds as public servants.

Pennsylvania's Vincent J. Fumo, convicted of all 137 counts against him, will soon head off to prison for 4.5 years. New Jersey's Wayne Bryant, who was found guilty of 12 charges, was sentenced Friday to four years behind bars.

While prosecutors had sought longer sentences for both politicians, the cases highlight a kind of back-to-the-future event in the criminal-justice system: the return of discretion in federal sentencing since the U.S. Supreme Court ruled that once-mandatory guidelines are merely advisory.

"We're certainly back to much more subjective and idiosyncratic and discretionary sentencing," said Edward Ohlbaum, a law professor at Temple University who said the prosecutors' expected appeal of Fumo's sentence may well open the next chapter in the debate about how to punish corrupt politicians.

Procedural reasonableness reversal leads to big substantive sentence reduction

Thanks to a reader, I noticed a local article updating the interesting sentencing story of US v. Maynor.  As detailed in this February post, the Fourth Circuit (in an unpublished opinion!) found an above-guideline sentence given to a former local sheriff to be procedurally unreasonable.  This local article now provides, in the words of Paul Harvey, the rest of the story:

Former Robeson County Sheriff Glenn Maynor’s federal prison sentence was cut to two years on Tuesday, according a newspaper report.  The Robesonianreported Tuesday evening that Maynor’s six-year sentence was dropped to 24 months....

In February, the U.S. Court of Appeals ruled that Glenn Maynor’s six-year sentence was too harsh in light of sentencing guidelines and the facts that the judge cited in issuing the sentence.  The recommended range was 18 to 24 months....

Maynor was the highest-ranking lawman swept up in Operation Tarnished Badge, a six-year probe into corruption in the Robeson County Sheriff’s Office.  Twenty-three people, mostly deputies, pleaded guilty to crimes that included kidnapping, money laundering, racketeering, theft of federal money and satellite piracy.  Their sentences ranged from a few months to 34 years in prison.

Maynor pleaded guilty to lying to a grand jury and to allowing deputies to get paid for working at his home and at his election campaign’s golf tournament.  He was sheriff from 1994 to 2004.

Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)

I have not blogged at all about the ugly allegations against federal judge Samuel Kent, but this latest news about his case from Mary Flood at the Houston Chronicle means that Judge Kent may soon to become my new post-Booker federal sentencing poster-child.  Here are the basics:

U.S. District Judge Samuel Kent pleaded guilty to one count of obstruction of justice today and retired from the bench, avoiding a trial on that charge and five others accusing him of sexually abusing two female employees.  Kent was scheduled to see a jury selected this morning for his trial on all six felony counts.

Few federal judges ever go to trial, but his would have been the first in which a federal judge was accused of sexual charges. “Judge Kent believes that this settlement is in the best interest of all involved,” his attorney, Dick DeGuerin, said after this morning’s hearing.  “A trial would have been long, embarrassing and difficult for all involved,” DeGuerin added. He said Kent has retired from the bench.

Kent faces up to 20 years in prison on the obstruction charge.  Prosecutors have suggested he be sentenced to three years in prison, but the judge is not bound by that recommendation.

Senior U.S. District Judge Roger Vinson has imposed a gag order on those involved in the case, but allowed DeGuerin to make his statement to the news media. The two female court employees with whom Kent now admits he had non-consensual sexual contact also were barred from speaking by Vinson’s order. Gag orders are designed to protect the rights of defendants from public prejudice before trial. Kent has waived his right to appeal and it is unclear why Vinson would issue a gag order....

Although, in most pleas in the federal courthouse in Houston, defendants are made to state their crimes, neither Kent nor prosecutor Peter Ainsworth stated the crimes in court.  Instead, papers were filed stating that Kent had non-consensual sex with two former female employees between 2003 and 2007.  The papers also state that, as part of the investigation into a complaint by one of the women, Kent lied about his relationship with the second woman to the Special Investigative Committee of the 5th Circuit.  Kent signed those papers admitting his wrongdoing....

Kent’s sentencing [is] set [for] May [and a lawyer for one victim] said he expects the victims will have a chance to speak then. Federal law requires judges to consider the victims’ input in sentencing.

So, let's review the offense and plea basics: a federal judge has admitted to "non-consensual sex" with two federal employees and he gets to cop a plea to one obstruction count and gets a sentence recommendation from prosecutors of only three-years imprisonment.  This seems like a pretty sweet deal, especially given that hundreds of federal defendants are now serving much long prison terms for just downloading the wrong kinds of dirty pictures on their computers. 

These issues really concern me in light of the (peculiar) gag order on Judge Kent's real victims.  I wonder if the victims of his "non-consensual sex" — which is sometimes called rape where I come from — were consulted (as the Crime Victims' Rights Act arguably requires) before federal prosecutors made this sweet deal.  I also wonder if they might now urge state prosecutors to go after Judge Kent for state crimes now that he has secured such a sweet deal from the feds. 

Now, let's spot some sentencing issues:

• should Judge Kent's guideline calculations be focused on his admitted "non-consensual sex" as relevant conduct?
• should Judge Kent get any credit (under the guidelines or otherwise) for his (late-in-the-day) acceptance of responsibility?
• should Judge Kent have to register as a sex offender?
• should Judge Kent's prior government and status be a mitigating or an aggravating sentencing factor in light of the provisions of 3553(a)?
• should all the collateral consequences of his conviction (including the likely loss of his federal pension) be a mitigating sentencing factor in light of the provisions of 3553(a)?
• is the gag order on the victims consistent with the federal Crime Victims Rights Act?

I could go on and on, but it looks like we will have at least a few months to work through these issues.  (The CVRA issues, however, strikes me as one that might merit consideration (and litigation?) sooner rather than later.)

The persistent problems with fast-track disparity after Booker and Kimbrough

One (of many) persistent post-Booker jurisprudence hot-spots concerns whether defendants who are not within so-called "fast-track" districts should be eligible for comparable early plea reductions when their cases are factually similar to those who get the benefit of such reductions in "fast-track" districts.  Before Kimbrough, the circuits had generally ruled that district court's lack discretion to provide such reductions without the blessing of the government.  After Kimbrough, this issue has divided the circuits. 

As evidenced by a recent district court opinion sent my way be a helpful reader, at least one district judge seems eager to have this issue reviewed with greater focus in light of current jurisprudential and fast-track realities.  The opinion in US v. Sanchez-Gonzalez, No. 08 CR 609 (N.D. Ill. Feb. 9, 2009) (available for download below), concludes this way:

Galicia-Cardenas and Martinez-Martinez are, of course, binding on this Court.  Mr. Sanchez-Gonzalez argues, however, that the Supreme Court’s intervening decision in Kimbrough v. United States, 128 S. Ct. 558 (2007), permits the Court, despite the Seventh Circuit’s decisions, to consider fast-track disparities as unwarranted within the meaning of section 3553(a)(6).  The Court disagrees.  The Supreme Court concluded in Kimbrough that a district court may base an outside-the-Guidelines sentence on its disagreement with the Sentencing Commission’s policy decisions.  The Court did not conclude, however, that a district court may base its sentence on its disagreement with Congressional directives.  Indeed, the Court took some pains in Kimbrough to point out that the policy decision at issue there – the Sentencing Commission’s adoption, in the Guidelines for narcotics cases, of a 100-to-1 ratio treating every gram of crack cocaine as the equivalent of 100 grams of powder cocaine – was not the result of an express legislative directive, id. at 570-71, or even an implied legislative directive, id. at 572-73.

This Court continues to believe, as a matter of policy, that it is unjust to permit sentencing disparities based on the fortuity of the judicial district in which a defendant in an illegal reentry case is charged. And one can legitimately take issue with the proposition that all fast-track reductions in illegal reentry cases are the product of Congress’ policy statement in the PROTECT Act and the companion legislative report cited by the Seventh Circuit.  As this Court pointed out in Medrano-Duran, and as reemphasized by the data defense counsel have submitted in the present case, a number of so-called fast-track reduction programs operate outside the bounds of Congress’ directive to the Sentencing Commission and Sentencing Guideline § 5K3.1.  See Medrano-Duran, 386 F. Supp. 2d at 946-47. That was part of the basis for this Court’s determination in Medrano-Duran that it was appropriate to consider such disparities in determining whether to impose a below-Guidelines sentence.

One might also legitimately argue that nothing in the PROTECT Act nor the legislative report cited in Martinez-Martinez amounts to express or implied legislative disapproval of deviation from the Sentencing Guidelines based on inter-district disparities resulting from the Department of Justice’s determination to adopt fast-track programs in some districts but not others.  See United States v. Rodriguez, 527 F.3d 221, 229 (1st Cir. 2008).  But the Seventh Circuit has taken a different course, and until it or the Supreme Court concludes otherwise, the choice is not one this Court is permitted to make.

For these reasons, the Court concludes that it is not permitted to consider, in imposing sentence in this case, the fact that a fast-track or early disposition program is not available in this District.

Download Fast_Track--J._Kennelly

Two intriguing sentencing stories show the impact of cable TV on federal justice

Two new local stories about two very different federal prosecutions have one notable link: cable TV shows seemed to have had an the operation of the federal criminal justice system in both cases.

First, consider this Tennessee story, headlined "Moonshine maestro gets 18 months."  Here are some of the cable-influenced details:

A federal judge sentenced Marvin “Popcorn” Sutton to 18 months in prison on moonshining and weapons charges Monday, rejecting arguments that Sutton deserved a sentence of probation because he had reformed and was too ill to serve prison time....

Sutton has a broad circle of supporters, and nearly 1,500 people signing petitions of leniency on his behalf.  He gained fame through a book he wrote called “Me and My Likker,” as well as through Internet videos and cable TV documentaries in which he demonstrated how to make moonshine.

That notoriety may have harmed him in the sentencing hearing. Assistant U.S. Attorney Robert Reeves introduced several of the videos as evidence Monday, claiming they showed Sutton “flaunted criminal activity.”  The judge appeared to agree. “Your moonshining is a violation of the law,” [the judge] told Sutton. “I don't care how it is glamorized on the History Channel or the Discovery Channel.”

Second, consider this Connecticut story, headlined " Child porn purveyor fights prison sentence."  Here are some of the cable-influenced details:

A man who was sentenced to more than three years in federal prison for possessing child pornography after a state judge gave him probation for possessing the same material is fighting the federal sentence — unsuccessfully so far....  [Defendant Edward] Burke pleaded guilty in October 2007 to a federal charge of possessing child pornography, which would have been extremely difficult for his lawyers to defend against at trial because he had pleaded guilty to the same conduct in Hartford Superior Court.

The federal prosecution began after the Journal Inquirerreported on Burke’s sentence of probation at the state level, imposed in October 2006 by Judge Thomas P. Miano in Hartford Superior Court. Miano put Burke on probation for five years, with 10 years of potential prison time hanging over his head if he violated court-ordered conditions.  The hundreds of images of child pornography found on Burke’s computer included sexual abuse of toddlers and the bondage and rape of prepubescent girls, authorities have said.

Heather Nann Collins, then a JIreporter, appeared on Cable News Network’s Nancy Grace show to discuss the case.  During the show, Grace said, as if speaking to Miano, “You are in contempt.”  Burke’s lawyers argued in court papers that the federal prosecution was “unduly influenced” by Grace’s attack on Miano.

New opinion from Judge Adelman explaining why drug guidelines merit less respect under 3553(a)

I just received a short but still important new sentencing decision from US District Judge Lynn Adelman. Judge Adelman imposes a below-guideline sentence in US v. Thomas, No. 08-CR-238 (E.D. Wisc. Jan. 24, 2009) (available for download below), based on part on the conclusion that the powder cocaine drug trafficking guideline is entitled to less respect because it is not based on an "empirical approach" or  study and expertise from the US Sentencing Commission. Here is a key paragraph from the opinion in Thomas:

As indicated above, the guidelines recommended that defendant served 27-33 months in prison.  In considering this recommendation, I noted that the Sentencing Commission “departed from the empirical approach when setting the Guidelines range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory minimum sentences that Congress established for such crimes.”  Gall, 128 S. Ct. at 594 n.2.  The Commission did not at the time of adoption explain how this scheme furthered the purposes of sentencing or otherwise justify the recommended sentences by reference to past practice or other research or study, and sentences in drug cases have since increased far above pre-guideline practice.  See U.S. Sentencing Commission, Fifteen Years of Guideline Sentencing 48-49, 53 (2004).  Such guidelines, which do not take account of empirical data and national experience, and do not exemplify the Commission’s exercise of its characteristic institutional role, are generally entitled to less respect. See Kimbrough, 128 S. Ct. at 575.

Download Judge Adelman written memo for drug variance

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).

District Court embraces a sentencing approach to dealing with prosecutorial misconduct (and highlights the impact of effective scholarship)

I am pleased to report on a fascinating district court opinion issued today, US v. Dicus, No. CR 07-32-MWB (N.D. Iowa Sept. 24, 2008) (available for download below).  Among the fascinating facets of the Dicus opinion is its incorporation of the insights of a new piece of scholarship (recently discussed here) by Professor Sonja Starr titled "Sentence Reduction as a Remedy for Prosecutorial Misconduct."   Here is how the Dicus opinion starts and ends:

At a sentencing hearing on September 9, 2008, I announced that I was reducing the defendant’s sentence from the high end to the low end of his advisory guidelines range as a sanction for the prosecution’s serious breach of the defendant’s plea agreement. I would otherwise have sentenced the defendant at the top of his guidelines range based on his sales of marijuana to minors, which was a factor not reflected in his advisory guidelines range.  However, the Chief Judge of our district had already found the prosecution’s breach of the plea agreement to be prosecutorial misconduct, and I imposed the sentence reduction, at the defendant’s request, as the appropriate sanction for such serious misconduct. I now enter this memorandum opinion and order to memorialize more fully my rationale for granting a sentence reduction as a targeted remedy for serious and recidivist prosecutorial misconduct....

In this case, I find that a reduction in the defendant’s sentence, albeit one to the low end of his advisory guidelines range, when I would otherwise have sentenced him to the high end, is the appropriate remedy for the prosecution’s serious violation of the defendant’s plea agreement. Such a remedy provides both deterrence for the prosecution’s misconduct and an incentive to defendants to raise such misconduct.  Such a remedy also serves the “interests of justice” and shows “appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty.”  Santobello, 404 U.S. at 262-63.  Finally, the reduced sentence in this case still serves the purposes of sentencing, upon consideration of the pertinent § 3553(a) factors, in that it is sufficient, but no greater than necessary, to achieve all of the appropriate sentencing purposes.

Download dicus_prosmisconduct_092408.pdf

Thoughtful opinion focused on bad health as the basis for a below-guideline sentence

A helpful reader sent me a copy of a lengthy and interesting sentencing opinion issued yesterday in US v. Rausch, No. No. 07-cr-00497 (D. Colo. Aug. 12, 2008) (available for download below).  The opinion is focused mostly on using severe health problems as the basis for giving a below guideline sentence, but has lots of other post-Booker goodies.  Here are a few snippets from a section of the opinion addressing punishment theory:

The retributivist approach, advocated by the prosecution in this case stresses guilt and dessert, looking back to the crime to justify punishment and denying or ignoring that the consequences of punishment have any relevance to its justification.  On the other side of the coin, the utilitarian approach taken by defense counsel insists that punishment is justified only if it has beneficent consequences that outweigh the intrinsic evil of inflicting suffering on another human being.

Lord Justice Denning, the great English jurist, has called punishment “the emphatic denunciation by the community of a crime.”  In his view, and I see great value in it, punishment reinforces the community’s respect for its legal and moral standards.  The restraint on this principle, however, is that punishment is only justifiable when it is deserved.  Rausch has admitted guilt and the proof is evident and overwhelming. Even so, the utilitarian assertion is that every human being should be treated with at least a minimum of respect as a source of rights and expectations and not merely as an instrument for promotion of the social order.

While the practice of punishment has been extant throughout the history of human culture, so, too, has been its cautionary curtailment....

In The Letters of Abelard and Heloise, 159 (Michael Clanchy ed., Betty Radice, trans., Penguin Classics 2004), one finds the following: “[F]or there is a well-known saying, ‘The law was not made for the sick.’” (Letter from Abelard to Heloise discussing caring for the sick and giving them all that they require). Further, in Dostoyevsky’s The House of the Dead and Poor Folk, 180 Constance Garnett, trans., (Barns and Noble Classics 2004), we read: “It is useless to punish a sick man.” Id. (explaining the absurd practice of imprisoning sick men and making them wear shackles).

Download rausch_sentencing_opinion.pdf

Judge Gertner assails quantity-based drug guidelines

District Judge Nancy Gertner has a new opinion which takes on and takes down the notion that drug quantities provide a sound basis for sentencing levels.   Here are parts of the start of Judge Gertner's work in US v. Cabrera, No. 06cr10343-NG (D. Mass. July 25, 2008) (available for download below):

Oscar Cabrera ("Cabrera") was, at most, a delivery man caught in a government sting. He hardly fits the profile of a major drug dealer.  He was told -- apparently at the last minute -- to pick up the drugs that undercover government agents had brought from Texas.  At the time of the deal, he was homeless, living out of his car; he had little or no idea about what was going on in the drug deal; he had no role in negotiating it, no money with him at the time of the sting, and was not remotely capable of investing in this drug transaction, or for that matter, any other.  The real purchasers did not trust him with much, and surely not the drug money. He was to receive perhaps $250 to $500 (the amount was never set) for drugs valued far, far more than that. He had no prior criminal record. The agents had no idea who he was prior to his arrest. The real purchasers got away.  Cabrera was caught -- quite literally -- holding the bag.

The statute under which Cabrera was prosecuted, and the Federal Sentencing Guidelines, focus largely on the quantity of drugs the defendant had, minimizing the significance of other relevant -- and important -- questions, like the defendant's real role in the offense or his background....  If I were to follow the Guidelines and sentence Cabrera solely on the basis of the drugs government agents brought with them, the result would be a classic case of false uniformity. False uniformity occurs when we treat equally individuals who are not remotely equal because we permit a single consideration, like drug quantity, to mask other important factors.  Drug quantity under the Guidelines treats as similar the drug dealers who stood to gain a substantial profit, here the purchasers who escaped, and the deliveryman, Cabrera, who received little more than piecework wages.

Download gertner_cabrera_final.pdf

Should all "true" first offenders now get a sentencing discount in light of Gall and Kimbrough?

In the olden days when the federal sentencing guidelines were mandatory, the Supreme Court in Koon indicated that a district court departing downward from Criminal History Category I would "abuse[] its discretion by considering [a first offender's] low likelihood of recidivism [because the Sentencing] Commission took that factor into account in formulating the criminal history category."  But now, of course, the guidelines are merely advisory.  And Kimbrough strongly suggests that courts can and should look to research reports by the Sentencing Commission when deciding whether and when and how to vary from the guidelines.  And in May 2004, in this interesting report titled "Recidivism and the 'First Offender'," the Commission highlights empirical data showing very low recidivism rates for what I would call "true" first offenders:

The analysis [of empirical data on re-offending] delineates recidivism risk for offenders with minimal prior criminal history and shows that the risk is lowest for offenders with the least experience in the criminal justice system. Offenders with zero criminal history points have lower recidivism rates than offenders with one or more criminal history points.  Even among offenders with zero criminal history points, offenders who have never been arrested have the lowest recidivism risk of all.

These issues came to mind as I read closely the Sixth Circuit thoughtful work last week in US v. Duane, No. 06-6536 (6th Cir. July 17, 2008) (available here).  At the very end of Duane, the panel had this nuanced discussion of these issues in a post-Booker world:

[T]he district court did not respond to Duane’s first argument — that he deserved a more lenient sentence because he had zero criminal history points.  This was not a particularly strong argument given that Duane’s criminal history category was taken into account in determining his Guidelines range.  But the argument was not completely frivolous.  Because Duane had zero points at age 57, he might plausibly argue that even category I — which applies when a defendant has zero or one criminal history point(s) — overstated his criminal history to some degree. Although the district court would have ideally addressed this argument, we can hardly say that this failure alone constituted error in this case. Given that the district court imposed a within-Guidelines sentence, addressed the factors it found relevant, and addressed the majority of Duane’s arguments, we conclude that the district court did not err.

Though the Duane court does not reverse a within-guideline sentence for failure to consider low likelihood of recidivism for a "true" first offender, the panel's carefully discussion of this issue suggests district courts now have an obligation to address expressly these issues whenever a true first offender defendant urges a below-guideline sentence by saying he is very unlikely to even commit a crime again. 

Indeed, defendants and defense attorneys can (and perhaps should) stress the USSC's own research to assert that proper application of 3553(a) in the case of a "true" first offender now virtually demands a below-guideline sentence.  The argument would be that the considerations set forth in 3553(a)(2)(C) and in 3553(a)(6) are only properly acknowledged if and when a "true" first offender gets a lower sentence than the advisory range suggested for all the other persons with some criminal past that are lumped into Criminal History Category I.

Split Ninth Circuit panel affirms below-guideline probation sentence as reasonable

Federal defense practitioners on the West Coast will be pleased to see the Ninth Circuit's latest reasonableness ruling today in US v. Whitehead, No. 05-50458 (9th Cir. July 14, 2008) (available here).  Here is how the short per curiam opinion starts:

Thomas Michael Whitehead sold over $1 million worth of counterfeit “access cards” that allowed his customers to access DirecTV’s digital satellite feed without paying for it. The jury convicted him of breaking various federal laws, including the Digital Millennium Copyright Act, which forbids the sale of devices that are designed to “circumvent[ ] a technological measure” that protects copyrighted works. 17 U.S.C. § 1201(a)(2)(A). The district court calculated a Guidelines range of 41 to 51 months, but imposed a more lenient sentence of probation, community service and restitution.

The government appeals, arguing that this below- Guidelines sentence was unreasonable, and Whitehead crossappeals, claiming that the indictment and jury instructions omitted an element of the crime. Neither party disputes the district court’s Guidelines calculation. We deferred submission pending our en banc decision in United States v. Carty, 520 F.3d 984 (9th Cir. 2008), and now affirm.

Judge Bybee dissents in a lengthy opinion that starts this way:

Thomas Whitehead will do no jail time for pirating a million dollars worth of “access cards” and selling them on the internet to persons who used them to steal satellite television service from DirectTV. The advisory Guidelines, after taking into account Whitehead’s personal circumstances, called for a sentence of 41-51 months. Whitehead walked with probation, restitution, and community service.

This was not an exercise of discretion so much as an abdication of responsibility. Our substantive review of sentences may be limited after Gall, but being deferential does not mean turning a blind eye to an injustice. I respectfully dissent.

Judge Adelman operationalizes deconstructed child porn guidelines

As noted here, the federal defenders' first paper in its important "Deconstructing the Guidelines" project addressed the child porn guidelines.  Fortunately for a defendant sentenced today, federal District Judge Lynn Adelman keeps up with his sentencing reading: he cites this new paper in support of a below-guideline sentence in US v. Hanson, No. 07-CR-330 (E.D. Wisc. June 20, 2008) (available for download below). Here is the start and a key paragraph from the opinion in Hanson:

The government charged defendant Jon Hanson with transporting and possessing child pornography, contrary to 18 U.S.C. §§ 2252A(a)(1) & (a)(5)(B), and he entered a plea of guilty to the transporting charge, which carries a statutory penalty range of 5 to 20 years. However, due to the numerous enhancements he faced, the sentencing guidelines recommended that defendant spend 210-262 months in prison.  Because I found this range far greater than necessary to satisfy the purposes of sentencing in this case, I imposed a non-guideline sentence of 72 months, followed by life of supervised release. This memorandum sets forth the reasons for the sentence imposed....

In a recent paper published on Professor Douglas Berman’s sentencing website, an Assistant Federal Defender traced the history of this guideline and pointed out its serious flaws, which were clearly evident in this case. See Troy Sabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, available at http://sentencing.typepad.com (June 10, 2008). As Stabenow explains, much like the crack guideline criticized by the Supreme Court in Kimbrough, guideline 2G2.2 is not representative of the Commission’s typical role or of empirical study.  The guideline has been steadily increased despite evidence and recommendations by the Commission to the contrary.  Congress has repeatedly amended it directly, ostensibly to target mass producers of child pornography and/or repeat abusers of children, a class of offenders that make up less than 5% of those affected by the changes. The most recent changes from 2003 apparently came from two lawyers in the Justice Department who persuaded a novice Congressman to add them to the popular Amber Alert bill. Id. at 27.  To the extent that the advisory guidelines deserve continued respect from courts, that respect will be greatest where the Commission has satisfied its institutional role of relying on evidence and study to develop sound sentencing practices.  This guideline simply does not represent that role, as the Commission itself has acknowledged.

Download hanson_written_sen_memo.pdf