Friday, February 01, 2013
Summary of key USSC findings in its big new Booker report
As explained here, unfortunately, wascally on-line wabbits have so far managed to allow only the first big part of US Sentencing Commission super-sized new Booker report to be available on-line only via this SL&P link. Fortunately, because others are primarily in charge of chasing down the annoying anonymous hackers (and because the NRA is primarily in charge of making sure all the rest of us have a right to use maximum firepower when hunting other forms of wabbits), I can spend my time trying to take stock of all the incredible effort and research reflected in the part of the new USSC Booker report now available for general consumption.
Though I am still just start to scratch the massive surface of the mass of information in just the first part of the new USSC Bookerreport, I can begin some assessment of what's in there by first praising the Commission for having a handy list of bolded "key findings" summarized in the first chapter. Here, in full text, are all the bolded key findings set out in the report's Overview chapter [with my own numbers added]:
 The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.
 The guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.
 The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, has generally remained stable in drug trafficking, firearms, and immigration offenses, but has diminished in fraud and child pornography offenses.
 For most offense types, the rate of within range sentences has decreased while the rate of below range sentences (both government sponsored and non-government sponsored) has increased over time.
 The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, and as measured by within range rates, has varied by circuit.
 The rates of non-government sponsored below range sentences have increased in most districts and the variation in such rates across districts for most offenses was greatest in the Gall period, indicating that sentencing outcomes increasingly depend upon the district in which the defendant is sentenced.
 For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.
Prosecutorial practices have contributed to disparities in federal sentencing.
 Variation in the rates of non-government sponsored below range sentences among judges within the same district has increased in most districts since Booker, indicating that sentencing outcomes increasingly depend upon the judge to whom the case is assigned.
 Appellate review has not promoted uniformity in sentencing to the extent the Supreme Court anticipated in Booker.
 Demographic factors (such as race, gender, and citizenship) have been associated with sentence length at higher rates in the Gall period than in previous periods.
I do not think any of these key findings are especially surprising, though I suspect some (many?) will still prove to be somewhat controversial. Most fundamentally, I am certain that all of these findings could be "spun" in any number of ways in any number of settings. For example, I think one might reasonably wonder whether finding 8 concerning prosecutors contributing to disparties best explains finding 11 concerning increased demographic disparities. (Also, it is especially interesting to consider how one might spin findings 2 and 5 and 6 in the on-going Supreme Court litigation concerning the application of ex post facto doctrines in the post-Booker advisory guideline system.)
All these key findings should and likely will engender lots of discussion and debate in the weeks ahead. For now, though, I am eager to hear from readers about which particular finding they consider most important or least important (or, perhaps, least likely to get enough attention or most likely to get too much attention). As one who has long been concerned that federal sentencing severity and the overall growth in the total number federal defendants gets too little attention while disparity gets too much attention, I will assert that finding 1 above and the realities it reflects is really the most important big-picture take-away point. I have a feeling, though, that others may have distinct views.
Recent related post:
February 1, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, January 10, 2013
Extended discussion of fast-track sentencing realities in new Seveth Circuit opinionI have not followed closely of late data or discussions of fast-track sentencing policies in the federal district court, but a new Seventh Circuit opinion brings this always-interesting post-Booker issue to mind again. Today in US v. Anaya-Aguirre, No. 11-3675 (7th Cir. Jan. 10, 2013) (available here),the Seventh Circuit covers lots of notable ground in the course of rejecting the defendant's complaint he did not prevail on his fast-track disparity argument for a reduced sentence. Here is how the opinion gets started:
Appellant Jose Manuel Anaya- Aguirre violated 8 U.S.C. § 1326(a) by illegally reentering the United States after a prior deportation that had followed a felony conviction in the United States. He pled guilty and was sentenced to 48 months in prison. Anaya-Aguirre argued in the district court that he should receive a below-guideline sentence because the Northern District of Illinois did not have a “fast track” program. Fast-track programs in some districts offer certain categories of defendants — including many in immigration cases — shorter sentences in exchange for very prompt guilty pleas, the waiver of nearly all trial and appellate rights, and other conditions. While the district court imposed a sentence that was below the guideline range, it is clear that the downward variance was not based on the lack of a fast-track program. Anaya-Aguirre has appealed his sentence, arguing that the district court erred by rejecting his fast-track mitigation argument. We affirm. [FN1]
[FN1] At the time of Anaya-Aguirre’s sentencing, none of the districts in the Seventh Circuit had fast-track programs. In January 2012, however, the Department of Justice changed its policy and now requires all districts prosecuting § 1326 violations to institute fast-track programs. See Memorandum from Deputy Attorney General James M. Cole to All United States Attorneys, Department Policy on Early Disposition or “Fast-Track” Programs (Jan. 31, 2012), available at www.justice.gov/dag/fast-track-program.pdf.
Thursday, December 20, 2012
Three decades and huge (record?) restitution sentence in federal child porn case from TexasA helpful reader alerted me to what seems like a record-setting sentence handed down yesterday in a notable federal child porn prosecution out of Texas. This local article about the sentencing provides the details:
Misty, a victim of child abuse that began when she was 4 years old, wrote that there is another “little me” being seen on the Internet by child pornography abusers. Prosecutor V. LaTawn Warsaw read the young woman’s victim impact statement during the sentencing of Robert Hedrick, 61, the former president of Pan American Airways, who was convicted in May of five counts relating to child pornography.
U.S. District Judge Andrew S. Hanen sentenced Hedrick to 30 years in prison and ordered him to pay more than $5 million in restitution to known victims of child pornography whose images of abuse were found on Hedrick’s computer....
The government had asked for a 90-year sentence, but Hanen said because of Hedrick’s age a 30-year sentence was appropriate....
Investigators identified 99 known series of child pornography, along with 549 known images of child victims on Hedrick’s computer — just a fraction of the more than 2,400 images and 18 videos of child pornography it held. Many of the children in the images are unidentified, Homeland Security Investigations Agent Joseph Baker testified....
Hedrick maintained his innocence. “I can’t ask the court for anything. I was framed. I didn’t do what I was charged and convicted of,” he said, adding that he can’t say he is sorry or show remorse for something he didn’t do. Hedrick plans to appeal....
During the trial, however, evidence showed that Hedrick shared 136 images of adult and child pornography with detectives who were posing as 13- and 14-year-old girls. According to testimony during the trial, Hedrick contacted the undercover investigators in Louisiana and Wisconsin through Yahoo instant messenger and email more than 20 times.
He also was convicted of asking the agents to provide him with images of themselves in sexually explicit sex acts. The government introduced a web cam video of Hedrick masturbating for an undercover detective who identified herself as a 14-year-old girl from Louisiana....
Here is a breakdown of the victims to whom Robert L. Hedrick was ordered to pay more than $5 million in restitution....
- $3,388,417 to the victim of the Misty series;
- $1,145,300 to the victim of the Jan-Feb series;
- $803,924 to the victim of the Vicky series;
- $68,821 to the victim of the Cindy series.
Much can be said, of course, about the imposition of 30 years' in federal prison for a man in his 60s for what he did on the internet. (Recall that now-infamous child molester Jerry Sandusky got a state sentence of 30-60 years.) I find even more noteworthy that federal prosecutors could, with a straight face and as officers of the court, assert in this sentencing proceeding that they believed that only a 90-year federal prison term(!) was "sufficient but not greater than necessary" to serve the purposes of punishment set forth by Congress in 18 USC 3553(a).
In addition, the restitution amount imposed here is higher than I can recall seeing in any other child pornography case and thus may set a record for this kind of prosecution. Moreover, unlike in many other child porn downloading cases, it seems possible that this defendant could pay some or perhaps all of this huge restitution amount. This reality not only raises the stakes for this defendant's planned appeal, but also potentially impacts whether and how the victims in this case will want or need to seek additional restitution awards from other child porn downloaders in future federal prosecutions.
Tuesday, December 18, 2012
Fascinating Judge Posner concurrence concerning carceration costsAn otherwise unremarkable per curiam Seventh Circuit panel opinion in US v. Craig, No. 12-1262 (7th Cir. Dec. 18, 2012) (available here), affirming a 50-year sentence for the producer of child pornography is blogworthy thanks to a lengthy concurrence by Judge Richard Posner. The full opinion is today's must-read, and here are snippets from the start and end of Judge Posner's opinion (with cites omitted):
I write separately merely to remind the district judges of this circuit of the importance of careful consideration of the wisdom of imposing de facto life sentences. If the defendant in this case does not die in the next 50 years he will be 96 years old when released (though “only” 89 or 90 if he receives the maximum good-time credits that he would earn if his behavior in prison proves to be exemplary). Maybe 50 years from now 96 will be middle-aged rather than elderly, but on the basis of existing medical knowledge we must assume that in all likelihood the defendant will be dead before his prison term expires.
Federal imprisonment is expensive to the government; the average expense of maintaining a federal prisoner for a year is between $25,000 and $30,000, and the expense rises steeply with the prisoner's age because the medical component of a prisoner’s expense will rise with his age, especially if he is still alive in his 70s (not to mention his 80s or 90s). It has been estimated that an elderly prisoner costs the prison system between $60,000 and $70,000 a year.
That is not a net social cost, because if free these elderly prisoners would in all likelihood receive Medicare and maybe Medicaid benefits to cover their medical expenses. But if freed before they became elderly, and employed, they would have contributed to the Medicare and Medicaid programs through payroll taxes — which is a reminder of an additional social cost of imprisonment: the loss of whatever income the prisoner might lawfully have earned had he been free, income reflecting his contribution to society through lawful employment.
The social costs of imprisonment should in principle be compared with the benefits of imprisonment to the society, consisting mainly of deterrence and incapacitation. A sentencing judge should therefore consider the incremental deterrent and incapacitative effects of a very long sentence compared to a somewhat shorter one....
Sentencing judges are not required to engage in cost-benefit analyses of optimal sentencing severity with discounting to present value. Such analyses would involve enormous guesswork because of the difficulty of assessing key variables, including one variable that I haven’t even mentioned, because I can’t imagine how it could be quantified in even the roughest way — the retributive value of criminal punishment. By that I mean the effect of punishment in assuaging the indignation that serious crime arouses and in providing a form of nonfinancial compensation to the victims.
But virtually all sentencing, within the usually broad statutory ranges — the minimum sentence that the judge could have imposed in this case, by making the sentences on all four counts run concurrently, as he could have done, would have been 15 years, 18 U.S.C. § 2251(e), and the maximum sentence, by making them all run consecutively, as he could also have done, would have been 120 years — involves guesswork. I am merely suggesting that the cost of imprisonment of very elderly prisoners, the likelihood of recidivism by them, and the modest incremental deterrent effect of substituting a superlong sentence for a merely very long sentence, should figure in the judge’s sentencing decision.
December 18, 2012 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Wednesday, December 12, 2012
Fourth Circuit affirms (stat-max) five year sentence for dog-fighting when guideline range at 0-6 monthsIn part because so very few sentences get reversed (or even seriously engaged) under modern reasonableness review, I rarely blog on rulings concerning the post-Booker standards of appellate review. But both the facts and the ruling today by a Fourth Circuit panel in US v. Hargrove, No. 11-4818 (4th Cir. Dec. 12, 2012)(available here), struck me as blog-worthy. Thes snippets highlights why:
The government describes Hargrove as being a "legend" in the dogfighting community. By Hargrove’s own admission, he has been involved in dogfighting activity for over four decades, and at one time he had approximately 250 fighting dogs on his property. Information in the record shows that offspring from one of Hargrove’s fighting dogs, Midnight Cowboy, sold for large sums of money across the country because of its aggressiveness and propensity for fighting. Hargrove advertised his dogs in various dogfighting-related publications, and he is famous in the dogfighting industry for his dogfighting, his breeding activities, his training regimen, and his ability to produce aggressive fighting dogs. His prior criminal history includes a 1983 Georgia felony dogfighting conviction, a 1993 North Carolina animal fighting misdemeanor conviction, and a 2001 North Carolina animal cruelty misdemeanor conviction.....
The district court announced that it was prepared to sentence Hargrove both under the guidelines and with an upward departure and upward variance. The court expressed its dissatisfaction with the "irrationality" of the dogfighting guideline provision, noting with respect to the guideline calculation of 0-6 months that Hargrove advocated: "I would say that other than the criminal dog fighters in America, every other person in America would be shocked beyond belief that you could do what [Hargrove] did and come out with a federal sentence of zero to six months. . . . No one could defend that. No judges. No legislators. No president." J.A. 135.
The court then heard from Hargrove’s counsel, who emphasized that Hargrove was a highly decorated military veteran who had been changed by his experience in Vietnam. Counsel also noted that in cases cited by the government involving similar activities, the defendants received imprison- ment sentences of between 12 and 24 months....
The court then announced that its guidelines calculations led to a sentencing range of 41-51 months, and it stated that it would sentence Hargrove to 51 months if imposing sentence under that range. However, the court further stated that an upward departure and an upward variance to 60 months were appropriate....
In short, the court made abundantly clear that even if Har- grove’s sentencing guideline range was 0-6 months, it believed a 60-month sentence was necessary to accomplish the objectives of sentencing. Given the record before us, we cannot conclude that the court’s exercise of its sentencing discretion in imposing a 60-month sentence is unreasonable.
Is the US Sentencing Commission soon to be dominated by district judges?The question in the title of this post is prompted in part by this new post at The BLT, which is headline "Senate Questions D.C. Federal Court Nominee on Sentencing Guidelines." Here are snippets from the post providing some background for my question:
At a confirmation hearing this morning before the Senate Judiciary Committee, U.S. District Court for the District of Columbia judicial nominee Ketanji Brown Jackson fielded questions about her views on how she would handle terrorist detainee cases and how she would use federal sentencing guidelines.
Jackson, vice chair of the U.S. Sentencing Commission since early 2010, was nominated by President Barack Obama in September to fill the seat vacated by now-retired U.S. District Judge Henry Kennedy Jr. If confirmed, she would fill the sole open judgeship on the court.
Jackson didn't encounter opposition during today's hearing. Even her introduction was bipartisan: she was introduced by Representative Eleanor Holmes Norton (D-D.C.), who recommended Jackson to the White House, and Representative Paul Ryan (R-Wisc.), who is related to Jackson and offered his "unequivocal" support. Before her appointment to the sentencing commission, Jackson was of counsel at Morrison & Foerster. She served as a federal public defender from 2005 to 2007 and as an assistant special counsel to the sentencing commission from 2003 to 2005.... Senator Chuck Grassley (R-Iowa) asked ... Jackson about sentencing practices in the D.C. court, saying he was under the impression that local judges were frequently issuing sentences the departed from federal guidelines. Jackson said the commission was finishing a nationwide analysis of sentencing data, but added that the commission was "concerned" about the trend of more judges issuing sentences outside of the guidelines in certain types of cases. She didn't speak specifically to the D.C. court.
Senator Richard Blumenthal (D-Conn.) asked Jackson about the commission's decision in 2011 to retroactively apply reduced sentencing guidelines for cases involving crack cocaine. She said that the commission is required to consider retroactivity whenever it comes out with reduced guidelines and found that it was appropriate for those cases.
Blumenthal then asked about how Jackson would decide whether to depart from sentencing guidelines. Jackson replied that she didn't find any one factor more persuasive than another — the nature of the offense or a defendants' history, for instance — and would individually evaluate each case.
If — and I sincerely hope when — Commissioner Jackson becomes US Distict Court Judge Jackson, the US Sentencing Commission will then have four federal district judges among its six current commissioners. Though I believe the Commission had four judges as Commissioners for a brief period in the early 1990s, I believe one was a Circuit judge and I am sure the USSC has never had two-thirds of its members serving as active sentencing judges.
I do not think it is a huge problem to have so many district judges on the Commission at once, especially because the current crop is a diverse lot both in terms of experience and perspective. Nevertheless, because it only takes four votes on the seven-member commission to make decisions, and because there are so many different stakeholders who should have a formal voice in USSC decision-making, I hope President Obama will consider seriously a non-judge nominee for the current open spot on the Commission and for future opennings.
IMPORTANT UPDATE: A helpful reader reminded me (1) that I had totally forgotten that Prez Obama nominated US District Judge Charles Breyer to the open slot on the USSC earlier this year, though he still awaits full Senate confirmation, and (2) that District Judge Howell and Vice Chair Will Carr are now serving now only in hold-over status and will no longer be on the Commission as of the start of the new Congress.
Assuming District Judge Breyer is confirmed to the USSC and Commissioner Jackson is confirmed as a judge in short order, then as of the start of 2013 the US Sentencing Commission will have four district judges among five active members. If neither is confirmed, then the USSC will have three district judges among four active members.
In accord with sentiments above, I hope not only that all the pending nominations get Senate confirmation, but also that Prez Obama will very early in 2013 name new nomination to fill the soon-to-be empty slots in the Commission with some more great folks who are not now federal district judges.
Tuesday, December 04, 2012
Nails does not get nailed at federal sentencing for bankruptcy fraudSerious baseball fans my age likely still have the 1986 playoffs deeply etched in their memories even a quarter century later. (In my case, it helps that I was in Shea Stadium for Game 6 of the 1986 World Series.) Consequently, the federal sentencing of a member of the 86 Mets has an extra bit of salience. But, as this Los Angeles Times article highlights, the player nicknamed Nails during his playing days now should be more grateful for Booker than for Buckner. Here are the reasons why:
Already serving a three-year state prison sentence for auto theft, former New York Mets star Lenny Dykstra was sentenced to an additional 6.5 months on Monday for federal bankruptcy fraud.
Dykstra, who helped the Mets win the 1986 World Series, had pleaded guilty to looting his mansion of valuables before creditors could liquidate them. The defendant, who reportedly scuffled with Los Angeles County sheriff's deputies in April, has racked up numerous criminal charges since his financial empire began to crumble in 2009.
On Monday, U.S. District Judge Dean Pregerson ordered Dykstra to pay $200,000 in restitution and to perform 500 hours of community service in addition to prison time. The 6.5-month sentence was far lighter than the 30 months federal prosecutors had sought....
According to federal prosecutors, Dykstra sold sports memorabilia and household items from his Ventura County mansion, including a $50,000 sink. Dykstra was barred from selling the items.
Nicknamed "Nails" by baseball fans for his aggressive play, the Garden Grove native turned to bankruptcy court in July 2009 to try to save his lavishly furnished Sherwood Country Club estate. He bought the property from hockey legend Wayne Gretzky for $18.5 million, at the height of the last housing boom.
An affidavit filed by FBI Special Agent Ty Thomas lays out how federal investigators allege that Dykstra "sold many items belonging to the bankruptcy estate" and "destroyed and hid other estate items, depriving the estate of a combined $400,000 of assets." Dykstra reportedly transferred dozens of items — including chandeliers, mirrors, artwork, a stove and a grandfather clock — to a consignment store, Uniques, on South Barrington Avenue in West Los Angeles. The owner of the store paid him cash for a U-Haul truckload of goods, according to the agent.
Sunday, November 04, 2012
"Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker"The title of this post is the title of this notable new empirical paper by Professors Sonja Starr and M. Marit Rehavi now available via SSRN. Here is the abstract:
Current empirical estimates of racial and other unwarranted disparities in sentencing suffer from two pervasive flaws. The first is a focus on the sentencing stage in isolation. Studies control for the “presumptive sentence” or closely related measures that are themselves the product of discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are built into the control variable, which leads to misleading sentencing-disparity estimates. The second problem is specific to studies of sentencing reforms: they use loose methods of causal inference that do not disentangle the effects of reform from surrounding events and trends.
This Article explains these problems and presents an analysis that corrects them and reaches very different results from the existing literature. We address the first problem by using a dataset that traces cases from arrest to sentencing and by examining disparities across all post-arrest stages. We find that most of the otherwise-unexplained racial disparities in sentencing can be explained by prosecutors’ choices to bring mandatory minimum charges. We address the problem of disentangling trends using a rigorous method called regression discontinuity design. We apply it to assess the effects of the loosening of the U.S. Sentencing Guidelines in United States v. Booker. Contrary to prominent recent studies, we find that Booker did not increase disparity, and may have reduced it.
November 4, 2012 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack
Friday, October 26, 2012
Are criticisms of Rajat Gupta's two-year prison sentence sound or suspect?The question in the title of this post is prompted by this AP piece headlined "Ex-Goldman Exec's 2-Year Sentence Draws Scrutiny." Here are excerpts, which also includes some highlights from Judge Jed Rakoff's comments about the federal sentencing guidelines:
A two-year prison sentence for insider trading at the height of the 2008 economic crisis, by a man who was once one of the nation's most respected business executives, is a fifth of the 10 years requested by the government and well below sentencing guidelines. Now, some experts are questioning whether it's a fair punishment.
Judge Jed Rakoff described the sentence and $5 million fine given to former Goldman Sachs and Procter & Gamble Co. board member Rajat Gupta, 63, on Wednesday as sufficient to deter others and properly punish the Westport, Conn., resident. "At the same time, no one really knows how much jail time is necessary to materially deter insider trading; but common sense suggests that most business executives fear even a modest prison term to a degree that more hardened types might not. Thus, a relatively modest prison term should be 'sufficient, but not more than necessary,' for this purpose," Rakoff said.
Some legal observers did not agree. Chicago attorney Andrew Stoltmann said the sentence should have been closer to the 10 years prosecutors had recommended because Gupta's crimes were more serious than those committed by Raj Rajaratnam, the billionaire hedge fund founder he tipped off. Rajaratnam is serving 11 years in prison.
"Gupta intentionally betrayed his duties to Goldman Sachs as a director of the company, refused to take responsibility for his actions and put the government through a long and exhaustive trial costing taxpayers millions," Stoltmann said. "Judge Rakoff should have thrown the proverbial book at Gupta and sentenced him to the higher range of the 97 to 121 months prosecutors were requesting."...
Rakoff criticized sentencing guidelines that he said called for Gupta to serve at least 6½ years behind bars. Citing information he received under seal, Rakoff said Gupta's crimes may have occurred because Gupta may have "longed to escape the straightjacket of overwhelming responsibility, and had begun to loosen his self-restraint in ways that clouded his judgment."...
Rejecting defense arguments that a community service sentence would be sufficient, Rakoff said a prison sentence was necessary to send a message to insider traders that "when you get caught, you will go to jail."
"While no defendant should be made a martyr to public passion, meaningful punishment is still necessary to reaffirm society's deep-seated need to see justice triumphant," the judge said. "No sentence of probation, or anything close to it, could serve this purpose."...
Rakoff said he could not spare Gupta from prison and only order him to perform community service. "It's not a punishment. It's what he finds satisfaction doing," the judge said.... In his attack on federal sentencing guidelines that are meant to be advisory, Rakoff said "mechanical adding-up of a small set of numbers artificially assigned to a few arbitrarily-selected variables wars with common sense."
He added: "Whereas apples and oranges may have but a few salient qualities, human beings in their interactions with society are too complicated to be treated like commodities, and the attempt to do so can only lead to bizarre results."
Notably, long-time federal prosecutor and frequent commentator Bill Otis stated in the first comment to a prior Gutpa post that he has "a hard time seeing what interest would be served by giving [Gupta] a sentence longer than he got." In addition to appreciating Bill's candor, his comment spotlight the import and distorting impact of the guidelines even in a post-Booker world. Though Bill Otis sees Gupta's two-year prison term to be "sufficient" in light of the commands of 3553(a), federal prosecutors in this case argued that a guideline sentence at least four times longer (more than eight years) was necessary to serve congressional sentencing goals. And even post-game criticism of Gupta's sentence reflected in the above-quoted article is quick to assert that the guideline range was a better benchmark for a proper sentence.
For social and psychological reasons, I continue to understand why guideline provisions and ranges has such a huge anchoring effect on federal sentencing decision-making even now eight years after the Booker ruling. But for normative and humanitarian reasons, I continue to be saddened that a big book of sentencing suggestions still dominates analysis of federal sentencing decision-making even now eight years after the Booker ruling.
Related prior posts on Gupta sentencing:
- Any early federal sentencing predictions after quick conviction in Gupta insider trading case?
- Interesting commentary on upcoming Gupta sentencing for insider trading
- Rajat Gupta hoping to get by (federal sentencing) with a little help from his friends
- Gearing up for high-profile sentencing of high-profile insider trading defendant
- Might it hurt Rajat Gupta to get sentencing support letters from the 1%?
- "Rajat Gupta Should Walk Free Wednesday"
- Gupta sentencing memos: feds seeking 97 to 121 months in prison, defense requesting probation and "rigorous community service"
- Rajat Gupta gets 24-month prison term, $5 million fine at sentencing for insider trading
October 26, 2012 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (10) | TrackBack
Wednesday, October 24, 2012
Third time around, "Millenium Bomber" gets (reasonable?) longer term of 37 years in prisonAs reported in this AP piece, the so-called "Millenium Bomber" was sentenced for a third time today after his first two sentences had been reversed by the Ninth Circuit as unreasonable. Here is what happened:
Algerian terrorist Ahmed Ressam was sentenced Wednesday to 37 years in prison for plotting to bomb Los Angeles International Airport around the turn of the new millennium. Ressam was arrested in December 1999 as he drove off a ferry from Canada into Washington state with a trunk full of explosives. U.S. District Judge John C. Coughenour had twice ordered him to serve 22-year terms, but both times the sentences were reversed on appeal.
Ressam's attorneys had conceded that he should face at least three decades to satisfy the appeals courts, but no more than 34 years. The Justice Department had sought life in prison because of the mass murder he intended to inflict, and because he recanted his cooperation with federal investigators....
Ressam's case has been vexing because he started cooperating after he was convicted and was interviewed more than 70 times by terror investigators from the U.S., Canada, Great Britain, Spain, Italy, Germany and France. Information he provided helped convict several terror suspects; prompt the famous August 2001 FBI memo titled "Bin Laden determined to strike in U.S.;" and contribute to the arrest of suspected Osama bin Laden lieutenant Abu Zubaydah, who remains in custody without charges at Guantanamo Bay, Cuba.
However, Ressam subsequently recanted all of his cooperation when it became clear that the prosecutors weren't going to recommend that he serve less than 27 years in prison. The recanting forced the Department of Justice to drop charges against two suspected co-conspirators, Samir Ait Mohamed and Abu Doha.
In previously sentencing Ressam, Coughenour noted that before he went to trial, the government offered him a 25-year sentence if he would plead guilty -- no cooperation necessary. Ressam refused, but Coughenour said that any discount for Ressam's cooperation, while it lasted, should start from that 25-year offer. The appeals court rejected that rationale.
I suspect that federal prosecutors will be disinclined to appeal yet again, even though based on time already served and time off for good behavior Ressam could possibly be free again not long after 2030. At this stage, I suspect prosecutors recognize it might be very hard to convince the Ninth Circuit that a sentence now 15 years longer is still unreasonable.
A few prior posts on the Ressam sentencings:
- Millennium bomber gets 22 years
- Notable terrorism resentencing results in same sentence
- Ninth Circuit panel reverses "millenium bomber" sentence again
- En banc Ninth Circuit finds Millennium Bomber sentence substantively unreasonable
- After too much previous sentencing success, lawyers for "Millenium Bomber" propose longer prison term
Tuesday, October 09, 2012
Gearing up for high-profile sentencing of high-profile insider trading defendantThe Wall Street Journal has this notable new article, headlined "In Gupta Sentencing, a Judgment Call," about a high-profile federal sentencing of a high-profile white-collar defendant slated for later this month. Here is how the piece gets started:
Former Goldman Sachs Group Inc. director Rajat Gupta is the highest-profile of more than 70 defendants convicted of insider trading in New York federal court in the past three years.
But this month he will likely receive a more lenient sentence than the 11-year-prison term given to Raj Rajaratnam, to whom Mr. Gupta provided his illegal leaks, legal experts say.
The sentence may have reverberations beyond the 63-year-old Mr. Gupta, a former chief of consulting giant McKinsey & Co. It will be widely watched in executive suites nationwide because it will be among the first handed down to a major corporate figure in the recent insider-trading crackdown. Previous sentences have largely involved traders, lawyers, lower-rung corporate employees and others.
Mr. Gupta, who was convicted in June of three counts of securities fraud relating to tips about Goldman and one count of conspiracy, didn't trade or profit directly from his illegal tips. Before the conviction, he had a long and stellar career in corporate America and philanthropy.
All this will be balanced against the nature of the crimes and the need to discourage others from similar offenses when U.S. District Judge Jed Rakoff hands down his sentence, scheduled for Oct. 24. Judge Rakoff often imposes sentences further below federal sentencing guidelines than some other judges do, according to a Wall Street Journal analysis.
"It's tough for a judge, because on the one hand, you know you are supposed to deter others to make a statement," said Peter Zeidenberg, a former prosecutor and now a white-collar defense attorney in Washington. "On the other hand, you should be looking at individuals as individuals and not as a poster board."
Federal guidelines could dictate a sentencing range for Mr. Gupta of up to 10 years, if Judge Rakoff agrees that the tips produced an amount approaching what prosecutors said in trial exhibits were at least $10 million in illicit profits earned and losses avoided by the Galleon Group, Mr. Rajaratnam's hedge fund. That would include extra time if Judge Rakoff found Mr. Gupta abused a position of trust as a corporate board member.
The range also could be less if the judge determines the illegal gains were less than $7 million, or based on other factors the defense might put forward. Judges must calculate and consider the guidelines at sentencing but needn't impose them. Judge Rakoff in the past has criticized them as "a mirage of something that can be measured."
Since 2010, Judge Rakoff has imposed an average sentence of 21 months on insider-trading defendants who didn't cooperate with prosecutors—about 38% below the guideline minimum, according to the Journal analysis.
By comparison, U.S. District Judge Richard Sullivan issued seven sentences in that period averaging 6.3% below the guideline minimum. U.S. District Judge Paul Crotty issued three sentences at 20.3% less than the minimum.
And former U.S. District Judge Richard Holwell issued three at 39% under the minimum. Mr. Holwell's 11-year sentence for Mr. Rajaratnam was 100 months below the minimum; he gave 30 months to Danielle Chiesi, Mr. Rajaratnam's co-conspirator, seven months under her range.
Friday, September 21, 2012
Stark extremes for forthcoming debate over federal sentencing of Amish beard-cuttersI have just seen from the start of this Cleveland Plain Dealer article that the basic terms for debating the federal sentencing outcome in the remarkable Amish beard-cutting criminal case are apparently already set at stark extremes. Here is how the article discussing yesterday's convictions describes the case and its forthcoming sentencing prospects:
In addition, this new AP article, headlined "Bond at risk for Ohio Amish hate-crime defendants," provides more details on just some of the interesting sentencing issues now joined:
Amish bishop Samuel Mullet was convicted Thursday of federal hate crimes and conspiracy for exhorting followers to forcibly shear the hair and beards of those who opposed his breakaway Ohio sect. Mullet’s three sons, his daughter, and 11 other family members and followers from his ultra-strict Amish order 100 miles southeast of Cleveland also were convicted of conspiracy and hate crimes after a trial that attracted international attention.
The 66-year-old bishop could face life in prison for his crimes. U.S. District Judge Dan Aaron Polster scheduled sentencing hearings for Jan. 24.
Assistant U.S. Attorney Bridget Brennan said federal sentencing guidelines recommend a minimum of 17 ½ years for the other 15 defendants given that their crimes involved violence and kidnapping. But defense attorneys said the judge has the discretion to sentence some of Mullet’s followers to as little as time already served in county jails.
Nine of 16 Amish convicted in beard- and hair-cutting attacks on fellow Amish in Ohio have remained free, but the government asked Friday to have them locked up, which could leave up to 50 children with one or both parents behind bars.
By law, "Detention is mandatory for these defendants," the government said. But prosecutors hedged, saying their strong recommendation for pre-sentence lockup of three of those most involved in the crimes would leave only one family with both parents in jail, not four.
U.S. District Court Judge Dan Aaron Polster, who presided at the Cleveland trial, gave defense attorneys until Thursday to argue for continued bond for the six women and three men.
Polster has scheduled sentencing for Jan. 24. Ring leader Sam Mullet Sr., 66, faces up to life in prison and the lowest sentencing range for those out on bond is 17 years, the government said....
Brian Pierce, attorney for Elizabeth Miller, 38, the mother of 11 and married to defendant Lester Miller, 37, said he would appeal for leniency in view of her big family and lack of any prior criminal record. Having both parents in prison poses "an extreme family hardship," Pierce said before the prosecution filing. "They need to make arrangements in the event she is incarcerated."
Lester Miller, Raymond Miller and Linda Schrock were the three whose continued freedom on bond was opposed by prosecutors.
Jefferson County Sheriff Fred Abdalla, whose office has investigated Mullet's community for years, said Friday he had received calls from relatives outside the community offering to care for the children if their parents go to prison. "It's Amish wanting to take these kids in. It's their relatives, it's their uncles, it's their aunts," he said. "That's the Amish, that's their culture. They are loving people, good people, God-fearing people."
When the 16 rejected lenient plea deals July 30, with some possibly getting probation, Polster quizzed the defendants about their understanding of the consequences of a conviction. He asked the defendants if they understood possible sentences for a conviction, asked their ages and number of children and whether they knew that, in some cases, they could be locked up to age 50 or 60. Most are under 40 years old.
All acknowledged an understanding, but one defense attorney said he wasn't sure they were really aware of the consequences. "It's something beyond their imagination," said Joseph Dubyak. His client, Linda Schrock, has 10 children with her husband, who was also convicted, and their 20- and 21-year-olds have been looking after the younger children during the trial.
Asked how the families would fare with long prison terms, Dubyak said, "Who knows? Not that it's a good solution, but the Amish are pretty resourceful and they are a family, the church unit. They all kind of work together."
Based on these stories, I surmise that federal prosecutors fully expect to seek sentences of at least 17-years in federal prison for even the very least culpable of these scary hardened Amish criminals convicted of these unique hate crimes. And for the ringleader of these crimes, Amish bishop Samuel Mullet, federal prosecutors will apparently be seeking an LWOP sentence (the same sentence now being served by presumably similar federal criminals such as Unibomber Ted Kaczynski and Oklahoma City bombing conspirator Terry Nichols and Olympic Park bomber Eric Rudolph).
In contrast, it sounds as though at least some of the defense attorneys think they may have a reasonable basis to argue for time-served or probation sentences. Indeed, given that just two months ago, federal prosecutors had apparently offered plea deals with offers of some sentences of straight probation, there is surely a basis to argue under the terms of 3553(a) that a sentence of probation may be "sufficient" to serve federal sentencing purposes.
September 21, 2012 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack
Tuesday, September 11, 2012
"Estimating Gender Disparities in Federal Criminal Cases"The title of this post is the title of this great-looking new paper by Sonja Starr, which is now available via SSRN. Here is the abstract:
I have long found that, in both the classroom and in other settings, discussion of discretion and disparity in the criminal justice treatment of different genders can often foster more dynamic and less polarizing discusson than when the focus is on race. For this reason (and many others), I hope to soon find time to consume this important new article and may well comment on it further.
This paper assesses gender disparities in federal criminal cases. It finds large gender gaps favoring women throughout the sentence length distribution (averaging over 60%), conditional on arrest offense, criminal history, and other pre-charge observables. Female arrestees are also significantly likelier to avoid charges and convictions entirely, and twice as likely to avoid incarceration if convicted.
Prior studies have reported much smaller sentence gaps because they have ignored the role of charging, plea-bargaining, and sentencing fact-finding in producing sentences. Most studies control for endogenous severity measures that result from these earlier discretionary processes and use samples that have been winnowed by them. I avoid these problems by using a linked dataset tracing cases from arrest through sentencing. Using decomposition methods, I show that most sentence disparity arises from decisions at the earlier stages, and use the rich data to investigate causal theories for these gender gaps.
Thursday, August 30, 2012
Fourth Circuit vacates LWOP sentence for illegal gun possession premised on uncharged murderA Fourth Circuit panel handed down an an intricate set of opinions today in US v. Horton, No. 11-4052 (4th Cir. Aug. 30, 2012) (available here). The ruling provides yet another reminder that, despite the Supreme Court's work in Blakely now more than 8 years ago, federal defendants still frequently face much longer sentences based on questionable judicial fact-finding by a perponderance of evidence under the federal sentencing guidelines. In Horton, however, the defendant got a break thanks to the Fourth Circuit view of how the guidelines should be applied, as this first paragraph from the majority opinion reveals:
Timothy Tyrone Horton appeals his conviction for possessing a firearm while a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924, and also appeals the district court’s imposition of a sentence of life imprisonment. For the reasons set forth herein, we affirm Horton’s conviction. We conclude, however, that the district court erred in applying the murder cross-reference provision in United States Sentencing Guidelines Manual ("USSG" or "Guidelines") § 2K2.1(c)(1) and in treating as relevant conduct a murder that occurred during the course of an unrelated and uncharged offense, which error substantially increased Horton’s advisory Guidelines range. Accordingly, we vacate Horton’s sentence and remand for resentencing.
Monday, July 16, 2012
First Circuit affirms (way-)below-guideline sentence for Big Dig white-collar offenders
Because I am on the road throughout July, I fear I may miss some notable circuit sentencing opinions. Thus, I am especially grateful that a helpful reader alerted me to the especially noteworthy opinion handed down by the First Circuit late last week in US v. Prosperi, No. 10-1739 (1st Cir. July 13, 2012) (available here). Here is how the lengthy Prosperi opinion starts:
The United States challenges the sentences imposed on appellees Robert Prosperi and Gregory Stevenson after their conviction of mail fraud, highway project fraud, and conspiracy to defraud the government. Both appellees were employees of Aggregate Industries NE, Inc. ("Aggregate"), a subcontractor that provided concrete for Boston's Central Artery/Tunnel project, popularly known as the "Big Dig." The government charged that over the course of nine years Aggregate knowingly provided concrete that failed to meet project specifications and concealed that failure by creating false documentation purporting to show that the concrete provided complied with the relevant specifications. Several employees of Aggregate, including Prosperi and Stevenson, were convicted of criminal offenses for their roles in the scheme.
At sentencing, the district court calculated the guidelines sentencing range ("GSR") for Prosperi and Stevenson as 87- to 108-months incarceration. Then, explaining fully its rationale for a below-guidelines sentence, the court sentenced Prosperi and Stevenson to six months of home monitoring, three years of probation, and 1,000 hours of community service. The government now appeals, arguing that under Gall v. United States, 552 U.S. 38 (2007), the sentences imposed by the district court were substantively unreasonable and that the appellees' crimes warrant incarceration.
We affirm. Although the degree to which the sentences vary from the GSR gives us pause, the district court's explanation ultimately supports the reasonableness of the sentences imposed. The district court emphasized that its finding on the loss amount caused by the crimes, the most significant factor in determining the GSR, was imprecise and did not fairly reflect the defendants' culpability. Hence it would not permit the loss estimate to unduly drive its sentencing decision. Relatedly, it found that there was insufficient evidence to conclude that the defendants' conduct made the Big Dig unsafe in any way or that the defendants profited from the offenses. The court then supplemented these critical findings with consideration of the individual circumstances of the defendants and concluded that probationary sentences were appropriate. We cannot say that it abused its discretion in doing so.
As this introduction suggests, the (unanimous) Prosperi opinion discusses lots of loss issues and ultimately affirms the district court's desire and decision to give little weight to what it saw as an inflated loss calculation. For this reason and others, Prosperi is a must-read not just for white-collar federal sentencing practitioners, but for all those still unsure about the scope of sentencing discretion in the post-Booker world.
July 16, 2012 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Friday, May 18, 2012
What are the odds SCOTUS grants cert in the (in)famous Rubashkin case?
The question in the title of this post is prompted by this recent commentary by Harlan Protass in the Des Moines Register headlined "Jail sentence doesn't fit the crime." Here are snippets:
Sholom Rubashkin, a first-time, non-violent offender, was convicted in 2009 of bank fraud related to his operation of a kosher slaughterhouse in Postville. He is no Boy Scout. He committed financial fraud, was convicted at trial and deserves punishment. Like any defendant found guilty of having committed a federal crime, Rubashkin also was constitutionally entitled to consideration of all arguments for leniency, an explanation of the reasons for the sentence he received, and review of that punishment by a higher court.
But when Chief District Judge Linda R. Reade of the U.S. District Court for the Northern District of Iowa disregarded her obligation to consider Rubashkin’s grounds for mercy and instead just sentenced him to 27 years behind bars, she left the appellate judges who examined Rubashkin’s case with no means for determining whether the penalty she imposed was fair, just or reasonable. That’s why it’s so important for the U.S. Supreme Court to hear Rubashkin’s appeal....A series of recent Supreme Court decisions prohibit judges from mechanically adhering to federal guidelines. Rather, judges are supposed to use their own judgment when meting out sentences, including consideration of all factors that might mitigate the sentence suggested by the guidelines. Simply put, judges are required to impose sentences that fit both the offender and the offense and are supposed to jail defendants for only as long as is “sufficient, but not greater than necessary” to reflect a host of penal objectives.
In Rubashkin’s case, Judge Reade paid only lip service to these legal requirements. She dispatched her obligation to consider factors other than the federal guidelines in a mere four pages of her 52-page sentencing decision. She essentially gave the back of her hand to the mitigating detail presented by Rubashkin’s lawyers, including his responsibility for 10 children, his extensive charitable activities, the absence of any indication that he was motivated by greed, and, most significantly, the disproportionality of the sentence recommended by federal guidelines as compared to those handed down in fraud cases of similar size and scope.
On appeal, the U.S. Court of Appeals for the Eighth Circuit essentially ignored Judge Reade’s omissions, inaccurately stating that she had “explicitly discussed each possible basis” for a shorter sentence than that called for by federal guidelines. In doing so, that court failed to fulfill its own obligation to ensure that sentences conform with the constitutional standards set by the Supreme Court.
To ensure the promise of a fair and just criminal justice system, it is critical that the Supreme Court, which is currently considering his request for a hearing, review Rubashkin’s case. It should find that judges must state on the record — in a written statement of reasons or during the sentencing hearing itself — that they considered and how they accounted for each and every mitigating factor.
This is of particular importance to those who receive sentences measured in decades, not years, like the 27-year prison term that Rubashkin received. The alternative — silence by sentencing judges — is constitutionally unacceptable, not only for the likes of Rubashkin, but also for any other citizen who might one day run afoul of the law.
As detailed in an amicus brief on sentencing issues I authored to support Rubashkin's cert petition (discussed here), I concur with this commentary's advocacy for SCOTUS review in this case focused on sentencing issues. In addition, as detailed in this ABA Journal report, my amicus brief was one of six filed in support of cert. One amicus brief, authored by former SG Seth Waxman, concerns recusal issues based on the presiding judge's pre-trial involvement with prosecutors as "was signed by 86 former officials and judges, including former attorneys general and other prior Justice Department officials. They include former FBI directors Louis Freeh and William Sessions, former Attorneys General Edwin Meese and Dick Thornburgh, and former Solicitor General Kenneth Starr." And, other amicus briefs "were filed by the National Association of Criminal Defense Lawyers ..., the Association of Professional Responsibility Lawyers, a group of 40 legal ethics professors, and the Justice Fellowship. Some of the briefs deal only with the fairness of the sentence, while others deal with recusal issues and the 8th Circuit's new trial standard."
All this amicus support, together with the fact that former SG (and SCOTUS magician) Paul Clement is representing Rubashkin before the High Court, surely raises significantly the odds of a cert grant. But, while making a cert grant more likely, it is hard to ever assert that a cert grant in a federal criminal case is "probable." Indeed, in this effective Slate commentary focused upon the judicial bias issues raised by the case, Emily Bazelon concludes with this sober assessment:
The larger problem here is that, practically speaking, federal judges have enormous leeway in deciding whether to take themselves off a case because of potential bias or perceived bias. When they make a bad call, there are rarely any consequences. In all likelihood, the Supreme Court will turn Rubashkin down and refuse to intervene this time, too. The jury who convicted Rubashkin sat for 18 days and reviewed more than 9,000 exhibits, and the justices probably have as little appetite for a do-over as they do for smacking down Judge Reade. But even if you can’t bring yourself to care much about the fate of Sholom Rubashkin, the oddities of this case don’t sit well. Judges shouldn’t be able to make up their own rules for policing themselves.
As this Supreme Court docket sheet reveals, the feds will not be filing a response to all the cert advocacy until at least early July, and thus the Justices will not be considering this case directly until well into summer. To its credit, SCOTUS recently has not shield away from taking up high-profile criminal cases raising high-profile issues (see, e.g., US v. Skilling), and thus I am a bit more optimistic that Bazelon that SCOTUS will take up the Rubashkin case. But I am eager to hear from readers as to whether they think this might be just wishful thinking on my part.
May 18, 2012 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Gall reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack
Thursday, May 17, 2012
Judge Young's latest account of (and homage to) jury involvement in sentencing fact-finding
US District Judge William Young of the District of Massachusetts, who has produced a regular supply of interesting (and lengthy) opinions about the role of juries in the modern criminal justice system, today issued another interesting (and lengthy) opinion such in US v. Gurley, No. NO. 10-10310 (D. Mass. May 17, 2012) (available for download below). Judge Young's work always merits attention, and the 51-page sentencing opinion in Gurley does not disappoint. There is far too much ground covered in Gurley to allow a simple summary, but here is the start of the main legal discussion section -- which begins on page 24 of the opinion! -- to provide a flavor of why Gurley is today's federal sentencing must-read:
I am a district judge sitting in the First Circuit. I owe the utmost fidelity to the Acts of Congress, the decisions of the Supreme Court, and those of the First Circuit. Government waiver aside, I owe a duty to explain that my post-Booker insistence on keeping the jury-front-and-center is fully consonant with the controlling statutes and case law.
The issues presented to this Court are whether the Court “must” apply the ten-year mandatory minimum sentence to the basic sentencing range set out in 21 U.S.C. § 841(b)(1)(C) and whether the principle of juror lenity bears on determinations as to the authorized sentence range.
I answer to the first question in the negative because the statutory range authorized by the jury does not provide for a mandatory minimum sentence. As to the second question, Supreme Court precedent binds this Court to recognize the principle of juror lenity in determining the applicable sentencing range. In doing so, this Court does not abdicate its post-Booker discretion to decide a just sentence based on a fair preponderance of the evidence as counseled by the Sentencing Guidelines. Rather, this Court endeavors to harmonize the principle of juror lenity with the jury’s recognized authority to acquit a defendant should a sentencing range appear to it disproportionate.
May 17, 2012 in Blakely in Sentencing Courts, Booker and Fanfan Commentary, Booker in district courts, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, May 14, 2012
Professor Bowman's latest potent pitch for a Booker fix
I have long respected (and even have sometimes agreed with) Frank Bowman's informed perspectives on federal sentencing policy and practice. Thus I am pleased to see his latest and greatest advocacy for reform of the post-Booker system now available on SSRN. This latest piece, which is forthcoming in the Federal Sentencing Reporter, is titled "Nothing is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System." Here is the abstract:
This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.
First, the post-Booker advisory system is conceptually indefensible. It retains virtually every feature excoriated by critics of the original sentencing guidelines. Its extreme ‘advisoriness,’ while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place. More importantly, the post-Booker system does not solve the biggest problem with the pre-Booker system — that its architecture and institutional arrangements predisposed the Commission’s rule-making process to become a one-way upward ratchet which raised sentences often and lowered them virtually never. Its sole relative advantage — that of conferring additional (and effectively unreviewable) discretion on sentencing judges — is insufficient to justify its retention as a permanent system.
Second, there exist a number of constitutionally permissible alternatives to the court-created Booker system, one of which — that originally proposed by the Constitution Project and more recently endorsed by Judge William Sessions, former Chair of the U.S. Sentencing Commission — is markedly superior to the present system.
Third, the difficult problem is not designing a sentencing mechanism better than either the pre- or post-Booker guidelines, but ensuring that such a system, once in place, does not replicate pre-Booker experience and become a one-way upward ratchet prescribing ever higher sentences. I offer suggestions about how this difficulty might be solved. However, I concede both the difficulty of this problem and the justice of the concern that, however imperfect the advisory system, it may be the best that can be achieved given the present constellation of institutional and political forces.
Sunday, May 06, 2012
Making a full-throated pitch for SCOTUS to again address reasonableness review
Regular readers may know that I am generally underwhelmed with how some circuits have approached reasonableness review, and I have long been troubled with the disinclination of some circuit to review rigorously within-Guideline sentences. Driven in part by those concerns, I have authored an amicus brief support in cert in the US v. Rubashkin case in which I lament the state of reasonableness review and urge SCOTUS involvement. The full amicus (which I filed aided by the fine folks at the Washington Legal Foundation) can be downloaded below, and here are excerpts from the state of the argument:
Problematically, in the half-decade since this Court’s rulings in Rita, Gall, and Kimbrough v. United States, 552 U.S. 85 (2007), the circuit courts have developed inconsistent and sometimes constitutionally suspect approaches to reasonableness review. Some circuits now regularly reverse sentences as procedurally unreasonable; others almost never do. Some circuits now regularly engage with the statutory factors of § 3553(a) when reviewing for substantive reasonableness; others almost never do. Accordingly, reasonableness review is not helping to “iron out sentencing differences” nationwide, but rather is exacerbating these differences. Tellingly, in recent official testimony, the U.S. Department of Justice has lamented the circuits’ disparate approaches to reasonableness review, and the U.S. Sentencing Commission has urged Congress to amend the SRA to resolve circuit splits over the application of reasonableness review. And many federal judges and commentators have asserted that appellate review of sentences — and all of modern federal sentencing under advisory Guidelines — would benefit significantly from this Court’s further guidance on the contours of reasonableness review.
Reasonableness review has been distinctly dysfunctional in those circuits that have adopted a so-called “presumption of reasonableness” for reviewing within-Guideline sentences. Curiously, there has yet to be a single appellate ruling that expounds upon — or, for that matter, even discusses — when and how this “presumption” can be rebutted or the legal consequences of any (phantom) rebuttal. Rather than function as the true “presumption” this Court outlined in Rita, the “presumption of reasonableness” has been used to convert the Guidelines into a sentencing safe-harbor, making all within-Guideline sentences effectively immune from substantive reasonableness review. (Indeed, despite the appeal of thousands of within-Guideline sentences since Rita, not one single within-Guideline sentence has been found substantively unreasonable in the “presumption” circuits.) That some circuits treat within-Guideline sentences as per se reasonable not only conflicts with this Court’s clear holding in Rita and Congress’s instructions in § 3553(a), but also raises serious constitutional concerns in light of this Court’s Sixth Amendment jurisprudence in Booker and its progeny....
[D]ue to the Eighth Circuit’s routine of always affirming within-Guideline sentences, the district court approached the sentencing of Mr. Rubashkin as if only the Guidelines mattered; in turn, the Eighth Circuit affirmed an extreme prison sentence for a nonviolent first offender using the rubber-stamp approach to reasonableness review it has adopted only for within-Guideline sentences. This case thus highlights how some (but not all) district courts are still disregarding the statutory instructions of § 3553(a) that Booker made central to federal sentencing, and how some (but not all) circuit courts are disregarding this Court’s instructions for reasonableness review set forth in Rita, Gall, an Kimbrough. Absent this Court’s intervention, the rulings below will stand as a high-profile reminder that district and circuit courts can feel free to treat Booker and its progeny as merely a lengthy “tale told by [the Justices], full of sound and fury, signifying nothing.” William Shakespeare, Macbeth, Act V, Scene 5.
Friday, April 06, 2012
Russian arms dealer gets below-guideline federal sentence of 25 years
As reported in this Bloomberg article, which is headlined "Viktor Bout Gets Minimum Prison Term of 25 Years for Weapon Plot," a notorious arms dealer actually got preety nice treatment at his federal sentencing yesterday. Here are the sentencing specifics:
Viktor Bout, the international arms dealer convicted of conspiracy for plotting to sell weapons to a Colombian terrorist group, was sentenced to 25 years in prison, the minimum term he faced.
A former officer in the Soviet Union, Bout, 45, was also sentenced yesterday to five years’ probation and ordered to forfeit $15 million by U.S. District Judge Shira Scheindlin in Manhattan.... Scheindlin rejected prosecutors’ arguments that Bout be jailed for life, saying he responded to the deal presented in the sting operation and otherwise wouldn’t have sought out an opportunity to sell weapons to be used against Americans....
Scheindlin said that while Bout “has sold weapons to some of the most vicious and violent regimes in the world,” it was unfair to impose an increased sentence applicable to terrorists. The judge said she would recommend that Bout serve his sentence near his lawyers in New York. She also said she would ask the Bureau of Prisons not to put Bout in solitary confinement.
Bout’s lawyer, Albert Y. Dayan, had urged the judge in a letter to refuse to punish Bout and not to become “an unwilling party in his wrongful prosecution.” In the hearing yesterday, he asked Scheindlin to give his client the minimum 25-year term. Federal sentencing guidelines, which are not binding, called for a life sentence, prosecutors said....
At Bout’s trial, Andrew Smulian, an associate who pleaded guilty and cooperated with the government, and two undercover agents testified that Bout offered to sell them millions of dollars in weapons, including surface-to-air missiles, armor- piercing rocket launchers and AK-47 rifles. Prosecutors said Bout, who also worked as an arms dealer in East Africa in the 1990s, controlled a fleet of as many as 50 cargo planes capable of transporting weapons and military equipment to Africa, South America and the Middle East.
During his address to the judge, which was translated by an interpreter, Bout thanked his lawyers and court officers who had shown him respect. He pointed to government agents in the courtroom and said, “Let God forgive you, and you will answer to him, not to me.”