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.”
Tuesday, April 03, 2012
"Racial Disparities, Judicial Discretion, and the United States Sentencing Guidelines"
The title of this post is the title of this new empirical paper available via SSRN authored by Joshua Fischman and Max Schanzenbach on a topic that has already generated significant conflicting empirical analyses and that is always of interest to federal sentencing policy-makers. Here is the abstract:
The United States Sentencing Guidelines were instituted to restrict judicial discretion in sentencing, in part to reduce unwarranted racial disparities. However, judicial discretion may also mitigate disparities that result from prosecutorial discretion or Guidelines factors that have disparate impact. To measure the impact of judicial discretion on racial disparities, we examine doctrinal changes that affected judges’ discretion to depart from the Guidelines. We find that racial disparities are either reduced or little changed when the Guidelines are made less binding. Racial disparities increased after recent Supreme Court decisions declared the Guidelines to be advisory; however, we find that this increase is due primarily to the increased relevance of mandatory minimums. Our findings suggest that judicial discretion does not contribute to, and may in fact mitigate, racial disparities in Guidelines sentencing.
April 3, 2012 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender | Permalink | Comments (0) | TrackBack
Friday, March 30, 2012
Interesting appeal by federal prosecutors of interesting white-collar sentence
This local press report, headlined "U.S. appeals sentence of Michael Peppel, former MCSi executive," reports on federal prosecutors' decision to appeal an interest white-collar sentence that gave a maximum fine but minimum jail time to a corporate criminal. Here are the basic details:
Federal prosecutors are challenging the seven-day jail sentence given last year to Michael E. Peppel, former top executive of MCSi Inc., for his guilty pleas to felony crimes related to the company’s 2003 collapse and insolvency.
Peppel’s sentence failed to reflect the seriousness of his offenses, provide just punishment, promote respect for the law or send a message of deterrence for those who would commit similar crimes, U.S. Attorney Carter Stewart argued in his written arguments filed with the 6th U.S. Circuit Court of Appeals on Tuesday.
Stewart asked the Cincinnati-based appeals court to throw out the seven-day punishment and order resentencing by U.S. District Judge Sandra Beckwith, who sentenced Peppel on Oct. 24.... Peppel was also fined the legal maximum of $5 million, must disclose his criminal record to all employers, must submit to random drug testing and must do community service, according to his sentencing terms. He has already served his seven days behind bars.
His lawyer, Ralph Kohnen, said the defense will fight efforts to impose a longer term of incarceration on Peppel, who was MCSi’s president and chief executive officer. “The government’s decision was unfortunate,” Kohnen said Thursday. “Judge Beckwith’s sentence was thoughtful and appropriate. Her sentence was just, proper and fair.”
Under a court-approved agreement that took effect this month, Peppel has committed to pay $3,000 per month toward his $5 million fine. At that rate, it would take him 50 years to pay $1.8 million of the fine and 100 years to have paid $3.6 million of it.
Peppel, 44, avoided trial in August 2010 by pleading guilty to willful false certification of a financial report by a corporate officer; money laundering, and conspiracy to commit securities fraud. He could have faced up to 50 years in prison. The government said his crimes helped sink MCSi, a Kettering-based computer and audiovisual equipment company. Its failure cost 1,300 employees their jobs, benefits and retirement income and left investors holding worthless stock.
Beckwith initially determined that, under federal sentencing guidelines, a prison term for Peppel of eight to 10 years would be appropriate. But after the defense presented 113 letters of support from Peppel’s family and friends, and argued that he had already been publicly humiliated and agreed to a lifetime ban on his ever serving again as a corporate chief executive, the judge imposed the seven-day jail term. Beckwith said she does not believe Peppel is likely to repeat his crimes and does not represent a threat to the public.
For a variety of reasons, in cases like this in which there appears to be no threat to public safety, I see as quite reasonable a judge's decision to impose a huge fine (which makes a defendant essentially an indentured servant to federal taxpayers for life) rather than requiring a lengthy prison term (which requires federal taxpayers to pay for a defendant's room-and-board while he catches up on reading at Club Fed). But, obviously, federal prosecutors have a different view and I will be very interested to see how this appeal ends up playing out in the Sixth Circuit.
March 30, 2012 in Booker in district courts, Booker in the Circuits, Criminal Sentences Alternatives, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack
Wednesday, March 28, 2012
Latest USSC quarterly data show slight downtick in within-guideline sentences
I am pleased to report that the US Sentencing Commission, fresh on the heels of releasing lots of complete Fiscal Year 2011 federal sentencing data (as reported here), today has released on its website the latest, greatest, freshest new quarterly sentencing data. The USSC's latest data report, which can be accessed here, is described this way:
First Quarter FY12 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published March 28, 2012)
The new data continue to show the same basic story lines and relatively stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that just under 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in over 25% of all cases.
Most notably, after the last two quarters revealed a slight uptick in the total number of within-guideline sentences (mostly as a result of a slight decrease in the number of judge-initiated below-guideline sentences), these 1st Quarter FY12 data shows a new downtick in within-guideline sentences, though mostly as a result of an increase in the number of prosecutor-initiated below-guideline sentences.
Friday, March 16, 2012
Eighth Circuit affirms lengthy (but way below-guideline) prison sentence for "inadvertent" illegal possession of "old hunting ammunition"
An otherwise inconsequential sentencing affirmance from the Eighth Circuit today in US v. Anderson, No. 10-3387 (8th Cir. Feb. 16, 2012) (available here), caught my attention because the facts justifying the federal conviction seem so innocuous and because the sentencing realities the defendant faced seem so remarkable. Here are snippets from the opinion that made me consider this case blog-worthy:
A jury found Defendant-Appellant Craig Leslie Anderson guilty of being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)....
Concluding that Anderson had perjured himself at trial [by testifying he did not know he possessed the ammunition], the district court applied a two-level enhancement to Anderson's offense level pursuant to United States Sentencing Guidelines § 3C1.1, resulting in an adjusted advisory Guidelines range of 84–105 months. The court then determined that a traditional departure was appropriate based on overstated criminal history pursuant to U.S.S.G. § 4A1.3(b), and adjusted the advisory Guidelines range downward to 77–96 months. Finally, the court granted a variance and imposed a sentence of 45 months' incarceration....
In the statement of reasons for the sentence, the district court explained ... "Anderson's crime is among the least serious felon-in-possession offenses that I have seen. Mr. Anderson possessed old hunting ammunition that appears to have been inadvertently overlooked when law-enforcement officers confiscated his firearms and ammunition in 2005. There is no evidence that Mr. Anderson could have used, or intended to use, the ammunition. I am not aware of any evidence that Mr. Anderson possessed a gun or any hunting gear.... Mr. Anderson's possession can fairly be described as inadvertent."
I also believe Mr. Anderson when he says that he did not know that his possession of the ammunition was illegal.... The State of Minnesota specifically warns felony-level probationers that they may not possess firearms, but the State does not warn that they may not possess ammunition. There are logical reasons for this that have to do with the difference between state and federal law as well as the difference between criminal laws versus conditions of probation. But these types of distinctions may be difficult for a layperson to appreciate....
"I do believe that, if Mr. Anderson had known that he could not possess ammunition, he may not be in the situation that he is in today. For these reasons, I believe that the Guidelines range in this case is too high to serve the purposes of sentencing and that a downward variance is warranted."
In short, the defendant here was convicted of illegal possession of hunting shells, which he inadvertently possessed and likely did not know was illegal for him to possess. Long-standing criminal doctrines about ignorance of the law means that his lack of knowledge of federal law does not allow him to escape liability, but even more remarkable is that the federal sentencing guidelines called for 7 to 9 years in federal prison(!) for the crime of "inadvertent" illegal possession of hunting shells. (Importantly, this high sentencing range was driven up by the defendant's criminal history, though the district judge also concluded that these guidelines also were over-inflated in this case.)
To the district judge's sentencing cre"dit, he decided that he should not send Anderson to federal prison for the better part of a decade for the ghastly crime of "inadvertent" illegal possession of hunting shells. Still, the judge decided that nearly four years in federal prison was necessary for this crime, and the Eighth Circuit panel required merely two sentences at the very end of its opinion to reach the conclusion that the imoposition of this lengthy federal prison term for this crime was reasonable and thus not an "abuse of discretion."
Sunday, March 04, 2012
New TRAC federal sentencing data (with judge identifiers!) highlights post-Booker variations
A potential blockbuster new set of federal sentencing data is emerging this coming week thanks to the folks at TRAC, as first reported in this new AP article headlined "Federal sentences still vary widely." Here are excerpts from this first report on a story which I suspect will garner lots of attention (and posts) in the coming days and weeks:
A new study shows that federal judges are handing out widely disparate sentences for similar crimes 30 years after Congress tried to create fairer results, but the differences don't line up with the party of the president who appointed the judges, despite any impressions that Republicans or Democrats may be tougher or softer on crime.
Sentencing data from the past five years that was analyzed for The Associated Press by the Transactional Records Access Clearinghouse during this presidential election year show that sentences for the same types of crimes vary significantly between judges in the same courthouse. But the party of the president who picked a judge is not a good predictor of whether a judge will be tough or lenient on a defendant found guilty at trial.
The analysis showed the judges who meted out the harshest average sentences after trials for three of the most common types of crime — drugs, weapons and white-collar charges — were split evenly between the two parties, based on which president appointed them....
The sentencing disparities can be vast, but the study shows they are not partisan. For example, defendants convicted in a drug trial in the Southern District of California got an average sentence of 17 years before Republican-appointed judges, compared with six years before Democratic counterparts. But a weapons conviction after trial in the Eastern District of Michigan resulted in an average sentence of 21 years before the Democratic-appointed judges and an average of less than 12 from the Republican ones.
Those figures come from TRAC, a research center at Syracuse University that uses the Freedom of Information Act to collect data about federal law enforcement activities.
On Monday, TRAC planned to launch the first publicly available database of sentencing records, sortable by judge, after a 15-year struggle to get records from a reluctant Justice Department. The center has filed FOIA lawsuits against the department four times, dating to 1998, and combined the hundreds of thousands of records it ultimately obtained with information directly from the federal courts to produce the database.
The database, available to anyone who pays $65 a month for a TRAC subscription, shows how many sentencings each federal judge has handled from the 2007-2011 budget years, the average sentence each issues and how long on average it takes the judge to dispose of a case. It compares each judge's figures with others in the same district and across the country, as well as the percentage of their cases by type of crime. That data could be useful to researchers or attorneys trying to gauge the odds their clients face with a particular judge.
TRAC co-director David Burnham said the data raises questions about the extent to which the goal of equal justice under the law is being served in some districts. He said TRAC doggedly pursued the data because it's vital the public and the courts have evidence that could improve the justice system....
A striking difference jumps out on first glance at the database: The huge variation in workloads between judges. Eleven judges in Southwest border states handled more than 800 cases on average a year, because of the large number of illegal immigrants captured in the region. All of the judges ranked in the top 25 for heaviest caseload are from Southwest border districts, led by U.S. District Judge Robert Brack in New Mexico with 6,331 sentencings over the five years and Judges George Kazen and Micaela Alvarez from the Southern District of Texas with more than 5,750 each.
There is so much of political and practical importance to this story and the data that TRAC has assembled (and I have placed the important data backstory in bold because it merits extra attention).
Most fundamentally, the data TRAC have assembled involve, to my knowledge, the first major compilation of federal sentencing outcomes with specific information about which judges imposed what sentences. For that reason (and many others), I suspect a lot of folks (myself included) will be looking to buy this valuable data from TRAC and will be eager to figure out (a) how accurately it is assmebled and reported, and (b) how best to utilize this important new data for various purposes.
Wowsa! And stay tuned federal sentencing fans...
Monday, February 27, 2012
Trio of notable sentencing losses by child porn defendants in Sixth Circuit
The Sixth Circuit has, just in the last two business days, handed down three notable published sentencing opinions in child porn cases. For a variety of reasons, anyone following this area of federal sentencing ought to find time to review the trio. But, as explained at the end of this post, such a review will not leave one with much confidence about modern federal sentencing justice in these kinds of cases.
Based on a too-quick review of the trio, the opinion in US v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (available here), strikes me as the most consequential because it reverses a below-guideline sentence as substantively unreasonable in an opinion that starts this way:
Rufus Robinson pled guilty to knowingly possessing over 7100 images of child pornography on his computer. Some of the images involved the bondage, torture, and rape of prepubescent children. Under the Sentencing Guidelines, Robinson’s recommended sentence was 78 to 97 months’ imprisonment. The district court rejected that recommendation and imposed a sentence of one day in custody, a term of supervised release of five years, and a $100 special assessment. The United States contends that Robinson’s sentence is both procedurally and substantively unreasonable. We agree that the sentence is substantively unreasonable, and vacate his sentence.
US v. Cunningham, No. 10-3092 (6th Cir. Feb. 24, 2012) (available here), covers some similar ground in the course of affirming a (within-guideline) sentence in an opinion that begins this way:
Defendant Thomas Cunningham appeals the district court’s judgment sentencing him to concurrent prison terms of 121 months and 120 months after he pleaded guilty to three child pornography offenses, in violation of 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2), and 2252A(a)(5)(B). Defendant raises assignments of error with several procedural and substantive aspects of the district court’s sentence. Because the district court’s imposition of Defendant’s sentence was comprehensive and legally sufficient, we AFFIRM.
US v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (available here), involves a similar defendant convicted and sentenced for child porn possession, but the sentencing issues raised (and deemed waived) on appeal concerned conditions of supervised release (perhaps because the defendant worked out a plea deal in which he got only a 30-month sentence for his kiddie porn offenses).
There is so much that might be said individually about each of these cases and what they reveal about the child porn guidelines and/or appellate review for reasonableness. But I find most remarkable that these opinion create the impression that defendant Cunningham may have been the most mitigated of these three offenders, even though he had the highest guideline range (121-151 months) and received the longest prison term (121 months).
Based on points discussed by the Sixth Circuit, defendant Robinson arguably is a much more serious offender than defendant Cunningham, but he faced a much lower guideline range (78-97 months) which means that, even after today's reversal of his one-day prison sentence, on resentencing defendant Robinson is still very likely to get a much shorter prison sentence than defendant Cunningham.
Finally, because defendant Ferguson's lawyer was apparently able to put together a sweet plea deal, defendant Ferguson is now likely already out of federal prison even though there are facts set forth in his case which might suggest he could well pose more danger to the public than the others. I am not sure just how or why 30 months was set at the fixed sentence in his case, but the outcome even on appeal provides further proof that "winning" sentencing arguments at the plea bargain stage may prove much more important and even more enduring in these cases than "winning" at the sentencing stage.
Short summary: sentencing in kiddie porn downloading cases are even more of a mess than one can reasonably assess.
February 27, 2012 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack
Monday, February 20, 2012
Brief reflections on federal sentencing policy, practice and politics after USSC hearings
I have many intricate "micro" observations about last week's two US Sentencing Commission hearings, but I fear I will not soon be able to find time to write up (m)any of them for this space. But I think I can quickly here articulate and briefly explain my "macro" take away from both hearings: federal sentencing laws and their prospects for reform still suffer greatly from (and may always suffer from?) harmful disconnects between sound sentencing policies and practices and sound-bite sentencing politics. Let me (too briefly) explain what I mean:
1. There was a rough consensus from the written testimony submitted on the first hearing day concerning penalties for child pornography offenses (still available via links in this official agenda) that, as a matter of policy and practice, federal sentencing law in this area is functioning quite poorly. (This is hardly surprising: the potential dysfunction of the existing CP guidelines has been stressed by courts and commentators for many years now.) But I suspect and fear it will prove very challenging for the US Sentencing Commission or the Justice Department to engineer any quick and/or sound fix because the sound-bite politics of this issue make it almost impossible to propose lower sentences for anyone who downloads kiddie porn, even the most mitigated of offenders who already faces many years in prison under existing law. (This is the same sad political reality that prevented any real change to the 100-1 crack/powder ratio for more than a decade after essentially everyone agreed that ratio was terribly misguided and racially unjust.)
2. There was a rough consensus, at least coming from all the judges, prosecutors, defense attorneys and public policy groups (whose written testimony is still linked via this official agenda here), that the broader post-Booker sentencing structure is, as a matter of policy and practice, functioning reasonably well all things considerd. But I suspect and fear the US Sentencing Commission and the Justice Department will feel very pressured to urge fixes to the post-Booker system because powerful Republican voices in Congress seem to relish the sound-bite politics of complaining about the possible unwarranted and/or racial disparities in federal sentencing. (But, tellingly, these same Republican voices were often disturbingly silent for years concerning proposed crack sentence reductions that the USSC long said were clearly needed to reduce unwarranted and racial sentencing disparities.)
3. Rigorous quantitative analysis of the post-Booker sentencing system done by both the US Sentencing Commission and outside researchers are already playing a large role in the policy and political debates. But I fear that even the best quantitative research (like the Commission's own data runs) too often fails to break down categories of cases/regions for analysis in order to assess the impact of sets of outliers. For example, the case-processing data differences in the CP cases and the larceny cases are profound in all sorts of ways, as are the difference in even the three judicial districts of North Carolina, but so much of the research and reporting necessarily has to lump many of these "local" stories together. For this reason (and many others), I think the USSC and outside researchers ought to be devoting a lot more time to sophisticated qualitative research with a focus on particularly important "local" stories.
I could go on (and may in future posts), but for now I hope lots of thoughtful folks — whether following the USSC hearing closely or not — will share comments on my numbered observations above OR more generally about what they see in the future for federal sentencing reform debates.
Some recent related posts:
- Fascinating DOJ testimony to US Sentencing Commission about child porn sentencing
- Highlights from DOJ testimony to US Sentencing Commission about federal sentencing concerns
- "Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences"
- New paper say there "is no need for a 'Booker fix'; Booker is the fix"
- In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"
- NPR covers latest debates over post-Booker federal sentencing systems
- Two big public hearings on tap for US Sentencing Commission next week
February 20, 2012 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Sunday, February 12, 2012
Timely discussion of federal judicial concerns with guideline sentences for kiddie porn downloaders
Today's Boston Globe has this notable article on a controversial component of the federal sentencing guidelines. The piece is headlined "US judges balk at rigid child porn sentences; Say guidelines often demand punishment beyond severity of crime." Here are excerpts:
In 2010, federal judges deviated below sentencing guidelines in child pornography cases 43 percent of the time, compared with 18 percent for all other crimes, according to data from the US Sentencing Commission, the agency that Congress established to set the guidelines....
Just last month, a federal court judge in Boston sentenced a Dedham man to 21 months in prison for possession of child pornography -- far lower than the 63 months he faced under sentencing guidelines, and even lower than the 30 months prosecutors had recommended as part of a plea deal. The judge who pronounced the sentence was US District Court Judge Patti B. Saris, who also happens to chair the Sentencing Commission. “As far as I’m concerned, there are some problems with the guidelines," she said in open court in issuing the sentence.
In another example, US District Court Judge Michael A. Ponsor sentenced a man in 2010 in Springfield to four years of probation, though prosecutors asked that he serve the 6-to-8-year sentence called for by the guidelines.
The judges’ persistent departure from the guidelines for child pornography offenses has caused such a stir that the US Sentencing Commission has agreed to examine them again, listing the endeavor as a priority. A public hearing is set for Feb. 15 in Washington....
Prosecutors acknowledge that the guidelines should be reconfigured to better reflect a defendant’s culpability. But they maintain that any changes to how the guidelines are calculated should not affect the actual scale of the sentences. They say Congress -- and society -- have called for the toughened penalties for the crime.
“There’s been recognition nationwide that there’s been an epidemic," said James Lang, chief of the criminal division for the US attorney’s office in Massachusetts. “There is an exploitation [of children] that goes on every time those photos are shared."
Congress has been so aggressive in its efforts to toughen child pornography sentencing guidelines over the last decade that it overrode the Sentencing Commission’s edicts for the first time in its history, in 2003. The changes effectively doubled what the average sentence for possession of child pornography had been in the two previous years, according to a Sentence Commission study, from 28 to 54 months.
But within the legal community, there has since been a growing chorus of criticism from those who say the punishment is too great, even for such a universally reviled crime. “The sentences are excessive, and the issue is one that could be modified," said former US senator Arlen Specter of Pennsylvania, who has also served as a prosecutor. He co-authored a journal in a law trade magazine in October calling for sentencing reforms. “It’s important to justice. But it’s hard to do, because child pornography is so highly emotional."...
Opponents of the guideline argue that the additional penalties -- known as enhancements -- are inherent factors in the crime, and unfairly increase the guidelines. The guidelines, for instance, call for additional penalties if a computer was used in the crime, and for a further enhancement if the child depicted in the images is prepubescent or under 12 years old -- factors that exist in more than 90 percent of the cases, according to Sentencing Commission data. Also, anyone using a file-sharing network could fall under the distribution category because their images are open to anyone, even if they do not purposely send them out.
With added enhancements for sadistic or violent images, and for increased penalties when more pictures are involved, a defendant could face a sentence of 20 years in prison for receiving child pornography -- higher than guidelines for crimes involving use of a gun or physical violence or abuse.
Federal prosecutors defend the length of prison time, arguing that it protects the young children who are the victims in such cases. Lang acknowledged that the sentencing enhancements should be reconfigured to reflect the way the crime is carried out. A defendant should face tougher penalties for running a chat group, rather than simply being involved in the chats, for instance. Defendants should also face tougher sentences according to the ages of the victims in the photos.
Prosecutors argue that the public, and judges, should make no distinction between those who possess pictures and those who produce them, pointing to a case out of Milford in which the discovery of child pornography images led to the prosecution of an international child porn production ring. More than 100 young children have been identified and removed from dangerous environments, according to prosecutors.
This companion piece in the Globe reports on a number of cases in which child porn offenders received sentences well below applicable guideline ranges. As noted in the main article, the US Sentencing Commission has a big public hearing scheduled for this coming Wednesday to discuss these and related issues concerning the child porn guidelines. I am especially interest to see what the Justice Department says to the USSC about these matters and how the guidelines might be modified to foster more judicial respect for the sentences recommended in these cases.
Wednesday, February 08, 2012
Two big public hearings on tap for US Sentencing Commission next week
The first day of hearings, slated for February 15 (with the official agenda here), is "for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing." The second day of hearings, slated for February 16 (with the official agenda here), is "for the Commission to gather testimony from invited witnesses on federal sentencing options pursuant to United States v. Booker."
I have the great honor and privilege of being one of the invited witnesses for the second day of these hearings, and I hope to post my written testimony once I finish writing it. I also expect the USSC will post the submitted written testimony of other witnesses before long, too. In the meantime, readers are welcome (and, in fact, encouraged) to make predictions about what various witnesses are likely to say to the Commission on these topics and what member os the USSC might say in response.
Friday, February 03, 2012
Seventh Circuit reminds federal sentencing judge of obligation to judge at federal sentencing
The Seventh Circuit handed down an intriguing little panel opinion resolving a sentencing appeal yesterday in US v. Pennington, No. 11-1257 (7th Cir. Feb. 2, 2012) (available here). Here is how the opinion in Pennington gets started:
Richie Pennington pleaded guilty to selling a firearm to a felon, distributing ecstasy, and possessing a firearm in furtherance of a drug-trafficking crime. The government recommended a 68-month sentence, the bottom of the applicable sentencing-guidelines range. Pennington argued that 64 months was enough. The judge rejected Pennington’s argument because the four-month difference between the sentencing recommendations was so little. He added that although the sentencing guidelines are not binding, “judges are told that [they] are to be followed.” The judge imposed the 68-month sentence suggested by the government. Pennington appeals, challenging the procedure the judge used to reach that decision.
We vacate the sentence and remand for resentencing. The judge appears to have rejected Pennington’s request for a modest below-guidelines sentence simply because it was modest and below the guidelines. There may have been other reasons why he did so, but as it stands, we cannot be sure the judge gave adequate consideration to Pennington’s argument.
Among other virtues, the court's opinion in Pennington has this nice passage discussing one of my favorite parts of 3553(a):
The first explanation about the negligible difference between the parties’ sentencing recommendations is troublesome for a couple of reasons. To begin, the so-called parsimony provision of § 3553(a) requires that judges “impose a sentence sufficient, but not greater than necessary” to serve the purposes of sentencing. The judge need not expressly refer to that provision at sentencing, Abebe, 651 F.3d at 656, but his explanation of the sentence must be consistent with its meaning, see Johnson, 635 F.3d at 988 n.1 (collecting cases). By characterizing the difference between the recommended sentences as “de minimis,” the judge implicitly accepted that 64 months was sufficient to serve the purposes of sentencing. If so, the parsimony principle would ordinarily require the more lenient sentence.