Monday, July 19, 2010
"In many cases the judges who diverge from the advisory Guidelines ranges will do so for the wrong reasons"The title of this post is a sentence from this intriguing new commentary now on SSRN from Professor Jonathan Masur, which is titled simply "Booker Reconsidered." There is a lot worth saying about this must-read piece, and to start I welcome reader reactions to both the key sentence quoted in the post title and this key paragraph of the author's analysis that immediately precedes this key sentence (with footnotes removed):
The result [of Booker making the guidelines advisory] is a system that is likely to underperform the prior regime in several important respects. There will certainly be cases in which judges will be better able to tailor sentences to fit offenders and their crimes under the advisory Guidelines. This ability to consider penalties on a case-by-case basis is, of course, the principal advantage of charging judges with the task of sentencing. Yet the cost of endowing the federal courts with this modicum of flexibility in sentencing is that racial and ideological disparities are likely to reappear, possibly in even more pernicious form. And that cost may not be balanced by a corresponding benefit from reinvigorating the role of the courts.
I greatly appreciate the effort to bring some cost-benefit analysis into the Booker debate, as well as Professor Masur's focus on the "division of institutional responsibilities" in his analysis. But I find curious and troublesome that the statutory provisions of 3553(a), which Booker preserved as binding sentencing law, get scant attention in this piece. Indeed, this piece strikes me as another example of both Bookerand federal sentencing judges being criticized because Congress appears unwilling to do any of the hard sentencing work that the Blakely and Booker constitutional rulings would now seem to require for the construction of an ideal sentencing system.
And here is what I find especially curious about the sentence I have quoted in my post title: if/when judges are doing their jobs properly after Booker, in all cases the judges who diverge from the advisory Guidelines ranges should and must do so based only on the mandatory considerations set out by Congress in the text of 3553(a). If in fact the "wrong reasons" are being used by district judges in many case in light of the text of 3553(a), circuit judges should be reversing more sentences. Alternatively, if district judges are generally complying with the text of 3553(a) when deciding to vary from the guidelines, there is something peculiar about the assertion that these variances are for the wrong reasons in many cases.
July 19, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (3) | TrackBack
Sunday, July 18, 2010
Effective press coverage of recent DOJ letter to the US Sentencing CommissionMarcia Coyle has this lengthy and effective piece due to appear in tomorrow's National Law Journal under the headline "Justice Department Calls for Probe of Federal Sentencing Patterns; Prosecutors see disparity in fraud, child pornography punishments." Here is how it begins:
During the past four years, federal judges imposed sentences of one to four years on five defendants in the AIG fraud case that caused more than $500 million in losses; 25 years on Ronald Treadwell for a Ponzi scheme involving a $40 million loss; and 3 1/2 years on former Impath Inc. President Richard Adelson for a $50 million securities fraud.
Those widely disparate sentences don't make sense, ignore federal sentencing guidelines and are a sign of a potentially very big problem, according to the U.S. Department of Justice. The DOJ wants the U.S. Sentencing Commission to investigate, with special attention to guidelines for fraud and child pornography crimes. But some sentencing experts say it may be something that the commission does not want to examine too closely.
The department called for a "comprehensive review" of the state of federal sentencing in its most recent annual report to the commission on June 28. In the five years since a U.S. Supreme Court decision struck down the mandatory nature of federal sentencing guidelines, the department said, prosecutors' experiences and data "suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes."
If allowed to go unchecked, the two regimes will lead to unwarranted sentencing disparities, disrespect for federal courts and sentencing uncertainty that could lead to more crime, the department said. "More and more, we are receiving reports from our prosecutors that, in many federal courts, a defendant's sentence will largely be determined by the judicial assignment of the case; i.e., which judge in the courthouse will conduct the sentencing," said Jonathan Wroblewski, director of the Criminal Division's office of policy and legislation, in the report.
Some sentencing scholars agree that judges are "straying off the guideline reservation" more frequently since the 2005 ruling in Booker v. U.S., but they disagree on how big a problem this could be. "I do think they're on to something," said former federal judge Paul Cassell of the University of Utah S.J. Quinney College of Law. "It's one of the dirty little secrets of federal sentencing now. There are situations where which judge you pull can drive the sentence."
But, he added, the subject for debate is how widespread the problem may be. "Is it isolated to a few here and there ignoring sentencing guidelines or is this a more general phenomenon? That's where analysis by the [Sentencing] Commission is needed."
The fact that some sentences may be below the guidelines does not demonstrate a disrespect for the guidelines, said Ellen Podgor of Stetson University College of Law. "Rather, it recognizes that these are advisory guidelines for consultation and use in determining a sentence," she said. "It is important to remember that judges are sentencing people and it is not a mere mathematical computation that should control."
Recent related posts on the DOJ letter to the USSC:
- Fascinating assessment of federal sentencing in DOJ annual letter to US Sentencing Commission
- Wasn't pre-Booker federal sentencing an "ongoing source of discord, disunity, and criticism"?
- Is DOJ eager for (and obliquely urging) reducing the severity of the federal sentencing guideline for child porn downloading?
Tuesday, July 13, 2010
Wasn't pre-Booker federal sentencing an "ongoing source of discord, disunity, and criticism"?There are so many intriguing aspects of the letter sent last month by the Justice Department's Criminal Division to the US Sentencing Commission (basics here), and I am still reflecting on DOJ's current assessment and criticism of 2010 post-Bookerrealities. But, upon my first re-read of the DOJ letter, this introductory paragraph jumped out at me:
[W]e think the existence of these dichotomous regimes [with some judges regularly sentencing within the guidelines and others frequently sentencing outside the guidelines] will, over time, breed disrespect for the federal courts. Trust and confidence in the criminal justice system is critical to successfully bringing justice to all and keeping crime rates low. To the extent that federal sentencing is an ongoing source of discord, disunity, and criticism, the reputation of the federal courts will be seriously damaged and the effectiveness of federal criminal justice will be compromised.
I do not disagree with any of the sentiments in this paragraph, but it seems to incorporate an implicit assertion that all was well with federal sentencing law and practice before Booker five years ago transformed the guidelines from rigid mandates into general advice. As the question in the title to this post spotlights, in my view, federal sentencing before Booker was "an ongoing source of discord, disunity, and criticism" and that reality seriously damaged the reputation of federal courts and the effectiveness of federal criminal justice. Indeed, I think it fair to assert that the amount of discord and criticism of the federal sentencing system has been reduced by Booker, though arguably the amount of disunity may be increasing.
The broader issue that the DOJ letter and this post raises concerns the appropriate benchmark for assessing and criticizing modern post-Booker federal sentencing realities. There are clearly many problems with the current advisory federal sentencing regime. But I continue to believe that most of these problems are generally less bad now than they were before Booker --- though the current problems may now be more transparant and irksome (especially to prosecutors who generally see increase judicial discretion being used to reduce sentence lengths relative to the guidelines). Moreover, the fact that a lot of the problems with federal sentencing are now more transparant after Booker serves itself as a mark in Booker's favor because problems that are easier to see are generally easier to fix.
Tuesday, June 29, 2010
High-profile below-guideline political corruption sentence headed to Third Circuit
As detailed hereand in other posts linked below, last summer brought lots of discussion and debate over the 55-month prison sentence imposed on Pennsylvania state lawmaker Vincent Fumo for his convictions on various corruption charges. Because Fumo was convicted at trial of many charges involving lots of corruption, most commentary assailed his below-guideline sentence as too lenient. And now, as these newspaper reports highlight, this high-profile federal sentencing debate is going to be heading to the Third Circuit:
- From the Legal Intelligencer here, "Federal Prosecutors Get OK to Appeal Former Senator's Fraud Sentence"
- From the Philadelphia Inquirer here, "Prosecutors get go-ahead to appeal Fumo sentence"
Because Fumo is in his late 60s and because the Sentencing Commission has new proposed amendments that indicate that age now is a potentially relevant departure factor, this case may be extra interesting in its briefing and argument concerning reasonableness review. That said, I suspect the government's appeal will stress what it views as procedural errors that it will say played a role in the sentence Fumo got from the district court.
Related prior posts on Fumo sentencing:
- State senator Fumo gets below-guideline sentence of 55-months imprisonment on corruption charges
- Comparing white-collar apples and drug dealing oranges at sentencing
- "Feds seek to appeal 'unreasonable' Fumo sentence"
- Continued buzzing about the (soft?) sentence given to Fumo
Monday, June 28, 2010
SCOTUS takes up long-running federal sentencing case from Eighth Circuit
It appears that among the cert grants from the Supreme Court this morning is Pepper v. United States (docket here), which will call for a review of this Eighth Circuit opinion. This Pepper case appears to have gone up and down the federal judicial ladder on sentencing issues for years, and it looks like Pepper might be a variation on the important Gall case from the Eighth Circuit that SCOTUS reversed a few years ago. I will have a lot more on this important federal sentencing cert grant once I have a chance to review the particulars.
UPDATE: Because the Eighth Circuit's most recent Pepper decision implicates so many issues, it is hard to even know how significant the SCOTUS cert grant in this case could prove to be. That said, the case seems likely to provide the newer Justices with their most direct opportunity to express views on modern post-Booker federal sentencing realities.
June 28, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Thursday, June 24, 2010
Fascinating data on recent trends and circuit specifics for federal child porn sentences
A few weeks ago, US District Judge Gregory Presnell asked whether I had any detailed or circuit-specific data regarding federal sentences for child porn offenses. I responded that the US Sentencing Commission would be the place to get such data, and Judge Presnell inquired of the Commission. And now I am happy to report that Judge Presnell has provided me with the information that was provided to him, and he has even written up this helpful summary of what the Commission data shows:
Pursuant to my request, the USSC sent me data related to sentences imposed under U.S.S.G. 2G2.2 for the fiscal years 2007-2009. That data is presented in the attached tables.
Nationwide, from 2007 to 2009, the number of sentences imposed under this guideline almost doubled, from 853 to 1,546, and the percentage of below-guideline sentences increased from 30.8% to 51.6%. Similarly, the average percentage reduction increased from 36.3% in 2007 to 40.3% in 2009. Thus, during the last fiscal year more than half of all child porn sentences were below the minimum guideline sentence, and the average reduction was approximately 40%.
Excluding the First Circuit and DC Circuit (whose case loads are too small to draw meaningful data), the percentage of sentences below the guideline range from a high of 65% in the Third Circuit to a low of 30% in the Fifth Circuit. The average percentage reduction is highest in the Second Circuit at 47% and the lowest is the Seventh Circuit at 30%. Overall, there is not great disparity among the Circuits.
Compared with the Circuit Court data, the Middle District of Florida had a high percentage of below-guideline sentences -- 70.6%, but the average percentage reduction was 38.8%, near the national average in fiscal year 2009. During that same period, the Eleventh Circuit was right at the national average with 51.4% of sentences below the guideline and an average reduction of 39%.
I suspect that any and everyone dealing with the always challenging issues surrounding the sentencing of child pornography offenses will be interested in the data that can be found in the charts available for downloading here: Download Circuit data on USSG 2G2.2 with tables.
Some related prior federal child porn prosecution and sentencing posts:
- "Judge Weinstein Takes On Child Pornography Laws"
- New academic piece discussing child porn sentencing in an internet age
- "Federal judges argue for reduced sentences for child-porn convicts"
- Thorough and thoughtful district court defense of federal child porn guidelines
- Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
- Effective new opinion discussing restitution in federal child porn possession cases
- Another thoughtful and notable district court opinion on restitution in child porn sentencing
- The latest (beneficial?) litigation front in child porn downloading battles
- Noting the latest data showing reduced (but disparate) federal sentences for child porn downloaders
- More examples of sentencing uncertainty surrounding federal child porn cases
Tuesday, June 22, 2010
Seventh Circuit finds inadequate district court's sparse justification for way below-guideline sentenceThe Seventh Circuit in US v. Brown, No. 09-1028 (7th Cir. June 22, 2010) (available here), provides district judges with yet another important reminder that they need to explain fully the bases for their sentencing judgments. Here is how the opinion in Brown gets started:
When Rodney Brown pleaded guilty to distributing more than five grams of crack cocaine, it looked as if he was about to go to prison for a long time. Brown had a prior drug conviction, and so he faced a mandatory minimum sentence of 120 months’ imprisonment. To make matters worse, his two previous convictions for aggravated assault qualified him as a career offender for purposes of § 4B1.1 of the U.S. Sentencing Guidelines, and this bumped up his recommended guidelines sentence to 262-327 months’ imprisonment.
At the sentencing hearing, the district court limited itself to making a few negative remarks about Brown’s character and capacity for change. It then surprised the parties by sentencing Brown to the lowest possible point available to it, the 120-month mandatory minimum, a full 142 months below the low end of the guidelines range. In its terse explanation of the sentence, the district court mentioned only Brown’s age (40 years old), the short length of his previous state sentences, and the conditions of his upbringing.
The government has appealed the sentence. Although a sentence so far below the recommended guidelines range lies within the court’s power, and may even have been justified in this case, the record is too spare to support that conclusion at this point. We therefore vacate Brown’s sentence and remand for resentencing.
In the weeks after Booker was handed down, I highlighted in this post that district judges should "Always remember to show your work." More than five years after Booker, it seems that some district judges are still struggling to understand that this is classic suggestion for math class remains very important for modern federal sentencing.
Sixth Circuit panel finds five-day sentence for child porn offense substantively unreasonableThe Sixth Circuit handed down US v. Christman, No. 08-4474 (6th Cir. June 22, 2010) (available here), yet another notable sentencing decision in yet another ugly child porn case. The case appears to have been handled poorly in a variety of ways, as evidence by this explanation at the start of the opinion:
Richard Christman pled guilty to two counts of possessing child pornography in January 2005 pursuant to a plea agreement calling for dismissal of the remaining counts against him, four counts of distribution child pornography. The district court sentenced him to 57 months in prison, a within- Guidelines sentence at the bottom of the 57-71 month recommended range. Several months later, the district court admitted that it had relied on impermissible information outside the pre-sentence report in sentencing Christman, and Christman appealed his sentence to this Court. A panel of this Court agreed, and it vacated and remanded the case for re-sentencing.
At re-sentencing, the district court, over the prosecution’s objection, sentenced Christman to five days in prison—that is, the time that he had spent in custody when first arrested—and fifteen years of supervised release. The court found that this sentence was warranted because Christman had severe back pain, he was his elderly, ailing mother’s primary caregiver, his family believed that he was remorseful, he was a musician and composer, and he had complied with the restrictions of his release on bail. The government appeals, arguing that the district court’s imposition of the nominal prison term cannot reasonably be justified by the factors identified at re-sentencing.
For the reasons set forth below, we find that the sentence was substantively unreasonable, VACATE the new sentence, and REMAND for re-sentencing in light of this opinion. We also direct that this case be assigned to a different judge for resentencing.
Monday, June 21, 2010
You make the sentencing call: resentencing of Qwest's Nacchio on tap for this weekAs detailed in this Denver Post article, which is headlined "Former Qwest CEO Nacchio awaits resentencing," a high-profile white-collar defendant is scheduled to be resentenced later this week. Here are all the details:
Though only those directly involved in the resentencing hearings will hear all the evidence needed to make a fully informed decision, the rest of us certainly can have ideas about what kind of sentence may be "sufficient but not greater than necessary" in this high-profile white-collar case. So, dear readers, you make the call: what sentence would you be inclined to impose on Joe Nacchio?
Former Qwest chief executive Joe Nacchio, 14 months into a six-year prison term for criminal insider trading, will receive a new sentence Thursday. What that sentence will be is anybody's guess.
Nacchio attorney Sean Berkowitz contends it should be less than three years and five months. The government argues federal guidelines allow for a sentence of as long as 12 years and seven months.
U.S. District Judge Marcia Krieger has set aside three days, Tuesday through Thursday, to resolve the matter.
A federal appeals panel last summer granted Nacchio a new sentence, ruling that trial judge Edward Nottingham miscalculated how much Nacchio gained from illegally selling Qwest stock based on nonpublic information that the company was faltering financially. The amount of money a defendant gains from a crime is a key sentencing factor in securities cases. Nottingham determined Nacchio gained $28 million.
An analysis by government expert Anjan Thakor, a finance professor at Washington University in St. Louis, says Nacchio gained between $23.5 million to $32.9 million. Thakor is expected to testify Tuesday. Nacchio's expert, Northwestern University business law professor Daniel Fischel, pegs that figure at $1.8 million. Fischel is expected to testify Wednesday....
Under federal sentencing guidelines, the amount of gain and factors including the type of crime determine the range of the prison term a judge should impose. The guidelines are advisory, not mandatory. But a judge must state reasons for imposing a sentence outside the range.
Nacchio's initial sentence was based on 2000 sentencing guidelines because his illegal stock sales occurred in 2001. The government contends Krieger should use 2006 guidelines, which are harsher.
In a court filing pushing for a lighter sentence, Berkowitz portrays Nacchio as a charitable family man who has already suffered enough. "He has lost his career, his livelihood, his reputation, and his freedom," the filing states. "His life has already been forever changed."
The government claims a harsher sentence is warranted because Nacchio's actions "reflect substantial greed" and the offense "is far more aggravated" because of his leadership position at Qwest. Nacchio and his wife had a combined net worth of $421 million in April 2001, around the time of the illegal stock sales, according to a court filing.
In addition to the prison term, Nacchio was ordered to pay $19 million in fines and forfeit $52 million — the gross amount of his stock sales. Berkowitz says the fine should be $3.6 million or less and his fine and forfeiture combined should be no more than twice what Krieger determines to be the gain amount. The government says Nacchio should pay $19 million in fines and $44 million in forfeitures.
Nacchio, who turns 61 Tuesday and is serving time at a federal prison camp in Minersville, Pa., will not attend the re-sentencing hearings, which will be in U.S. District Court in Denver.
Thursday, June 17, 2010
Updating the continuing debate over Lynne Stewart's upcoming resentencingThis new article in the New York Law Journal, which is headlined "Perjury Charge Is Focus of Debate Over Lynne Stewart Resentencing," provides the latest news in the long-running controversy surrounding the sentencing of noted defense attorney Lynne Stewart. Here is how the piece starts:
Prosecutors and defense lawyers have now weighed in on the critical question facing Southern District of New York Judge John J. Koeltl when he resentences Lynne Stewart on July 15: whether the disbarred defense lawyer perjured herself at her 2005 trial for providing material support to a terrorist conspiracy.
Both sides have filed extensive sentencing materials with the judge, whose decision to give Stewart, 70, only 28 months in prison for helping her imprisoned client, Sheik Omar Abdel Rahman, communicate with the outlaw Islamic Group in Egypt, was vacated last year as too light by the 2nd U.S. Circuit Court of Appeals.
Southern District Assistant U.S. Attorneys Andrew S. Dember and Michael D. Maimin, in a 155-page memorandum, say Stewart perjured herself several times, most notably when she said a "bubble" protected her as an attorney when she smuggled out of prison in June 2000 a statement by the sheik withdrawing his support for a cease-fire on violent attacks by Islamic Group.
"The evidence at trial irrefutably proved that Stewart knew that she was committing perjury by offering such testimony," the prosecutors argue in their memo. They say Stewart's sentence should be increased dramatically both because of her perjury and because of a terrorism enhancement in the federal sentencing guidelines that Koeltl technically applied, but did not enforce. The terrorism enhancement drives the guidelines figure up to the statutory maximum of 30 years in prison.
Defense lawyers Elizabeth M. Fink and Jill R. Shellow counter in their papers by calling Koeltl's initial sentence "reasonable and just." They argue that Stewart was being truthful when she claimed there was a "bubble" or exception to special administrative prison measures preventing the sheik from getting or sending messages, and that Stewart did not perjure herself when she denied having known, at the time of her offense, the leader of a violent faction within Islamic Group.
Fink and Shellow said Koeltl properly exercised his discretion when he found that, while the terrorism enhancement applied, the 30-year-prison term it triggered was "dramatically unreasonable" and "overstated the seriousness" of her conduct. "Moreover, this court's determination to grant a variance from the guideline sentence based in part on the unreasonable effect of the terrorism enhancement as applied to Stewart was reasonable and proper, and is an approach that has been approved by other courts," they said.
Stewart's sentence caused turmoil at the circuit, as a two-judge majority of Judges Robert D. Sack and Guido Calabresi held they could not determine whether the sentence was substantively reasonable because Koeltl had declined to make a finding on perjury. The court nonetheless ordered Stewart to begin serving her sentence immediately.
In dissent, Judge John M. Walker was angry at the majority for reversing on a narrow ground a prison term he called "breathtakingly low" considering Stewart's "extraordinarily severe criminal conduct." Walker said it was plain the court should have vacated the sentence as substantively unreasonable.
The panel issued an amended opinion on Dec. 20 with tougher language calling for Koeltl to revisit his treatment of the terrorism enhancement.
But that was not the end of it, as one circuit judge called for a rehearing en banc. The motion lost by a vote of 7-4, but some judges issued opinions that, like Walker, faulted Koeltl for taking into consideration that "no victim was harmed" when Stewart issued the press release. Judge Jose A. Cabranes issued an opinion accusing the two-judge majority panel of "punting" on the biggest issues in the case.
Wednesday, June 09, 2010
Lawyer turned Ponzi schemer turned cooperator Rothstein gets federal prison term of 50 yearsAs detailed in this Reuters report, "South Florida Ponzi scheme mastermind Scott Rothstein was sentenced to 50 years in prison on Wednesday for an investment fraud that bilked clients out of more than $1 billion." Here's more:
The sentence was more than the 40 years federal prosecutors had recommended for Rothstein, a disbarred lawyer who pleaded guilty to racketeering and fraud conspiracy charges in January. He had faced up to 100 years in prison but his lawyer had asked U.S. District Judge James Cohn to give him no more than 30 years.
US Sentencing Commission publishes fascinating new survey of district judges' views on sentencing
Just posted on the website of the US Sentencing Commission is this new document titled "Results of Survey of United States District Judges: January 2010 through March 2010." As the website explains, the "Sentencing Commission undertook to survey all United States district court judges concerning their views and opinions on a wide range of sentencing policy issues," and this publication presents the results of that survey. Here are a few snippets from the report about the survey:
The Commission’s 2010 survey asked questions grouped into five broad areas: (1) statutory and structural sentencing issues; (2) sentencing hearings; (3) guideline application issues; (4) departures; and (5) general assessments. Judges were provided an opportunity to offer written comments in addition to or to expand upon their answers to the survey questions....
Abt [the survey administrator] reported to the Commission that, of the 942 judges to whom the survey was sent and who did not ask to be excluded from the survey, 639 responded to Abt. This represents a 67.8 percent response rate to the survey. The judges who responded to the survey presided over a significant portion of the cases in which federal offenders were sentenced during fiscal years 2008 and 2009. During this two-year period, district court judges imposed original sentences on 146,511 individual federal criminal offenders. Based on an analysis performed by Abt, the 639 judges who responded to the survey sentenced 116,183, or 79 percent, of these offenders. Of the 50 judges who sentenced the most individual offenders during the two-year period from fiscal year 2008 to fiscal year 2009, the response rate was even higher. Of the judges in this group, 43 responded to the survey. This represents an 86 percent response rate by these judges. Together, these 43 judges account for 31 percent of all offenders sentenced nationally during that period.
The results are reported in detailed charts which are hard to summarize but are worth careful study by all post-Booker sentencing participants.
Tuesday, June 01, 2010
New district court sentencing data now available from the USSC
The US Sentencing Commission has some fresh new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Second Quarter FY10 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the second quarter of fiscal year 2010. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published June 1, 2010)
The new data continue to show remarkable stability in trends in the application of the advisory federal guideline sentencing system: these data show, yet again, prosecutors and judges moving just a little further away from the guidelines, with now 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in more than 26% of all cases. (Figures A and B and Table 4 show these long-term trends most clearly.)
Not long after the 2008 election, I speculated here that ground-level sentencing trends might show the imprint of a new administration before there were any formal legal and policy developments. Interestingly, these latest numbers continue to suggest that the new Obama judges and new Obama US Attorneys may be, very slowly but very surely, continuing to help the federal sentencing system drift away from the anchors established in the federal guidelines.
Sunday, May 23, 2010
Statutory ranges, guidelines, sentencing advocacy and the power of primingA notable new piece on legal advocacy by Kathryn Stanchi now available here on SSRN, "The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader," reminds me of what I consider to be a key failing by many in the defense bar in the aftermath of Booker. Before I turn to this failing, here is the abstract of this new priming article:
While legal advocates have long understood that first impressions can strongly influence the decision-maker’s view of their cases, so far legal scholars have not explored in any depth the growing body of research on the science of first impressions. This article remedies that by looking at the scientific studies of a psychological phenomenon called “priming.” These studies reveal the subtle and surprising ways in which first impressions can be shaped to the legal advocate’s advantage.
Priming is a phenomenon through which a person’s reaction to information is influenced by her exposure to prior material. For example, priming studies show that if a person reads about golf, her first thought will tend to be “golfer” if someone later mentions Tiger Woods to her. Her first thought is likely to be quite different if someone has previously spoken to her about marriage or adultery. Because priming can change a person’s reaction to information by exposing her to different introductory material, it has significant implications for legal advocacy.
This article examines the major studies on priming, with the goal of showing how legal advocates can use the lessons of the studies to make more persuasive arguments. The article also demonstrates how the psychological data on priming offers new and unique insights on how to use emotion in legal advocacy. Throughout the article, concrete examples show how legal advocates can use the science of priming to make strategic decisions. In sum, the article represents a first, serious step in studying this powerful tool that has potential application to all facets of legal advocacy.
As the title of this post hints, I think a key failing of many in the defense bar since Booker has been the tendency to allow prosecutors to prime sentencing judges to focus on (now advisory) guideline ranges rather than to prime a focus on (still mandatory) statutory sentencing ranges. Especially in cases in which there is no applicable mandatory minimum prison term set by statute, defense counsel could and should zero in on 3353(a)(3), which demands a focus on "the kinds of sentences available" and comes before 3353(a)(4) demands a focus on "the kinds of sentence and the sentencing range" set out in the guidelines.
Thursday, May 20, 2010
"Fast-Track Sentencing Disparity: Rereading Congressional Intent to Resolve the Circuit Split"The title of this post is the title of an important new Comment by Thomas Gorman that now appears in the University of Chicago Law Review (and is available here via SSRN). This Comment throughtfully engages with what I view to be one of the most interesting and dynamic (and consequential) post-Booker issues. Here is the abstract:
Early Disposition Programs -- commonly referred to as "fast-track" sentencing - allow a federal prosecutor to offer a below-Guidelines sentence in exchange for a defendant's prompt guilty plea and waiver of certain pre-trial and post-conviction rights. Typically, fast-track sentencing is used to quickly process an overwhelming caseload of immigration offenses. Fast-track programs received official sanction when Congress, in the PROTECT Act, directed the Sentencing Commission to authorize them. This authorization requires both the local US Attorney and the Attorney General to approve the implementation of each program. As a result, fast-track sentencing is presently approved in just a fraction of judicial districts. Therefore, not all defendants are eligible for a reduced fast-track sentence, and eligibility is dependent on where they are found and prosecuted.
Defendants in non-fast-track districts argue that this geographic disparity triggers 18 USC § 3553(a)(6), which states that sentencing courts must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." These defendants argue that sentencing courts in non-fast-track districts have the discretion to grant below-Guidelines sentences to mitigate the disparity.
The circuit courts uniformly agreed that sentencing courts could not mitigate the fast-track disparity prior to the Supreme Court’s decision in United States v Kimbrough. In Kimbrough, the Court noted that the Sentencing Guidelines are advisory, and that sentencing courts have broad discretion to impose a below-Guidelines sentence if it is necessary to ensure that the sentence is “sufficient, but not greater than necessary.” Congress, if it wants to limit this discretion, must do so explicitly. In light of this decision, the circuits have begun to reconsider their precedent on fast-track sentencing and a split has developed. The First and Third Circuits now hold that "sentencing courts can consider items such as fast-track disparity" when deciding whether to grant a below-Guidelines sentence. The Fifth, Ninth and Eleventh Circuits continue to hold that sentencing courts may not mitigate the fast-track disparity.
This Comment attempts to resolve the split by arguing that circuit courts have erred by focusing on the one-sentence authorization of fast-track in the PROTECT Act. The statutory language is ambiguous, so it is not helpful in resolving the debate. Therefore, this Comment argues for an investigation of legislative intent.
An intent analysis requires a thorough examination of congressional efforts to reform sentencing, rather than a limited inquiry into the PROTECT Act’s one-sentence authorization of fast-track. The purpose of the fast-track authorization is clearer when the statute is considered in the context of Congress’ long campaign to reform sentencing. For the last 30 years, Congress has consistently prioritized two goals: promoting harsh sentences and reducing unwarranted sentencing disparities. These goals are also what drove Congress to authorize a limited form of fast-track sentencing.
This Comment argues that granting sentencing courts the discretion to mitigate the fast-track disparity is more supportive of Congress’ goals than any alternative. It is also more consistent with the Supreme Court’s recent rulings defending judicial discretion.
May 20, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack
Tuesday, May 11, 2010
Major reasonableness ruling from Second Circuit in child porn downloading caseThe Second Circuit handed down this morning a must-read panel opinion in US v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (available here), which a helpful reader described to me as "arguably the most significant one decided by any lower federal court since Booker." I am not sure I think the the Dorvee ruling is quite that huge, in part because the "child porn downloading" context may limit its broader significance within and outside the Second Circuit. Nevertheless, as these passages from the start and end of the opinion highlight, Dorvee is very important for lots and lots of reasons:
Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days for time served for a related state sentence. He challenges both the procedural and substantive reasonableness of his sentence. Our review of the record indicates that the district court may have improperly calculated Dorvee’s Guidelines range which, we conclude, constitutes procedural error. We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore vacate the judgment and remand to the district court for resentencing....
District judges are encouraged to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results. While we recognize that enforcing federal prohibitions on child pornography is of the utmost importance, it would be manifestly unjust to let Dorvee’s sentence stand. We conclude that Dorvee’s sentence was substantively unreasonable and, accordingly, must be revisited by the district court on remand.
Once I have a chance to read the full Dorvee opinion closely, I will have a lot more to say about its likely import and impact. For now, it is already interesting to speculate whether the Government might be moved to seek en banc or even cert review of this ruling.
Sunday, May 09, 2010
"Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing"The title of this post is the title of this important new article by Sarah Russell just published in the UC Davis Law Review. The article analyzes recidivist enhancements based on prior drug convictions from a policy perspective, and also introduces an approach for challenging the application of these enhancements using the Supreme Court's decision in Shepard. Here is the abstract:
Recidivist sentencing enhancements, which increase criminal sentences for defendants with prior convictions, are a prominent feature of the federal criminal justice system. This Article considers the policy rationales supporting recidivist enhancements and reexamines them in light of two recent Supreme Court cases, United States v. Booker and Shepard v. United States. Recidivist enhancements are traditionally justified based on rationales of retribution, deterrence, and incapacitation; proponents justify recidivist enhancements on the theory that people who reoffend are more culpable and more likely to recidivate. There is considerable doubt, however, regarding whether these rationales support the expansive federal enhancements currently tied to prior drug convictions.
The Supreme Court’s decisions in Booker and Shepard, which provide judges with additional sentencing discretion, allow judges to reexamine these rationales in the cases before them. Booker rendered the sentencing guidelines advisory, and judges may now decline to apply guidelines enhancements on policy grounds. Shepard limits the types of evidence that a judge may consider in determining whether a prior state conviction triggers a federal sentencing enhancement and allows judges to avoid applying statutory and guideline enhancements in many cases. Innovative Shepard litigation in the District of Connecticut has recently led to a marked reduction in the number of enhancements based on drug convictions applied by judges in the District. Judges nationwide can apply this Shepard analysis. Although rigorous application of Shepard increases sentencing discretion and may lead to more just and effective sentences in individual cases, Shepard can also create sentencing disparities for similarly situated defendants. Under Shepard, the application of an enhancement may depend solely on factors such as the availability of court transcripts or whether the defendant’s state conviction precisely matches the language of a federal enhancement. Given the potential for unwarranted disparities — and the serious doubts as to whether the enhancements further any of the purposes of sentencing — Congress and the U.S. Sentencing Commission should reduce the magnitude of enhancements based on prior drug convictions or even eliminate them altogether.
Monday, May 03, 2010
Can, should and will district judges start giving effect to proposed amended guidelines ASAP?This article from the Wall Street Journal, which is headlined "New Factors to Help Judges Determine Leniency," effectively the proposed new federal guideline amendments released on Friday by the US Sentencing Commission (basics here):
New rules will make it easier for federal judges to consider criminal defendants' military service, age, and mental and emotional conditions in determining more lenient prison sentences, a federal agency announced on Friday.
Defense lawyers and some judges cheered the move by the U.S. Sentencing Commission, which develops advisory guidelines that most federal judges use to calculate sentences. The commission had been considering updating the rules.
As a result of the changes, which takes effect on Nov. 1, some defendants could receive a reduction of several months or several years, said Mauro Wolfe, a former federal prosecutor who is now a defense attorney in New York. "Judges will start paying more attention to this around the country," said John Kane, a federal judge in Denver. Mr. Kane recently gave a sentence of probation, rather than prison, to an Iraq war veteran. Previously the sentencing commission said factors such as age and military service "are not ordinarily relevant in determining" whether a lower sentence is warranted....
The new rules potentially reduce the prison sentence for some defendants with recent criminal history. Separately, they allow judges to send certain nonviolent drug offenders to treatment programs rather than prison.
There has been a judicial movement toward more-lenient sentencing for certain types of defendants in recent years. For example, a growing number of federal judges have given breaks to individuals convicted of viewing child pornography but who aren't themselves molesters, according to recent data.
As more military veterans return from Iraq and Afghanistan and have developed behavioral problems, some judges started taking their military service into account when deciding on prison time.
Some federal judges also give credit for charitable giving and other good deeds. However, the commission on Friday didn't budge on its stance that judges generally shouldn't take into consideration such acts.
As spotlighted by the question in the title to this post, these proposed guideline amendments set up one of the most interesting and intricate formal legal questions of the post Bookerera --- namely whether district judges can and/or should and/or will start giving effect to the substance of these new guidelines during sentencings over ne next six months while the proposed amendments are subject to congressional review.
Formally, as the WSJ piece notes, the proposed amended guidelines do not become legally effective until November 1, 2010, and Congress has authority during this period to pass legislation to reject the Sentencing Commission's proposed changes. But it seem very unlikely that Congress will reject these changes, and district courts right now have an on-going obligation to sentence in accord with the provisions of 3553(a). And, given that the Commission has now formally and functionally indicated its view the provisions of 3553(a) are better served by sentencing in accord with its amended guidelines, a district court should probably feel free, and maybe even should feel and obligation, to sentence in accord with this new proposed guidelines ASAP.
I heard reports back when the USSC lowered the crack guidelines that a lot of sentencings were simply put on hold during this six-month interregnum when newly issued guidelines are formally still just proposed amendments. But these new proposed amendments, especially the provisions concerning the consideration of age and mental/emotional conditions, could implicate almost every pending sentencing. (For example, in the high-profile Rubashkin case (basics here and here), both the defendant's age and mental/emotional condition were stressed by the defense as a reason for a more lenient sentence.)
Consequently, unless district courts are prepared to postpone all sentencings not controlled by mandatory minimum sentencing terms, judges will have to confront in some manner the question of whether and how to give effect to these new proposed guidelines in pending cases. And, with luck, some of these judges will author thoughtful written opinions to perhaps get a real common-law dialogue started concerning precisely how best to give effect to military service, age, and mental and emotional conditions at sentencing.
Related posts on the new proposed sentencing guidelines :
- New USSC amendments expanding prison alternatives and addressing certain offender characteristics
- US Sentencing Commission posts full text of its significant new guideline amendments
- Why the proposed new federal guideline amendments are symbolically important
Thursday, April 29, 2010
"The Stability of Case Processing and Sentencing Post-Booker"The title of this post is the title of this notable empirical paper that I just noticed via SSRN. The piece is authored by Jeffery Todd Ulmer and Michael Thomas Light, and here is the abstract:
In January of 2005, the U.S Supreme Court ruled in United States v. Booker and Fanfan that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The uncertainty regarding how Booker may change sentencing practices has been a major discussion among legal scholars. The wake of Booker/Fanfan may bring decreased uniformity and consistency in sentencing between District Courts, and also increased unwarranted disparity based on the social status characteristics of defendants. This is one of the first empirical studies to examine if and how Booker has changed federal sentencing.
We first review the Booker/Fanfan decision and its importance and aftermath, and then review what is known from previous studies of disparity in federal sentencing pre-Booker/Fanfan. Using survey data taken from judges, lawyers, and probation officers in federal courts, we examine how practices in courts may have changed post-Booker. We then examine several of the central questions surrounding whether Booker has increased disparity using USSC data on federal sentencing outcomes from three time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, and the post-Booker/Fanfan period (2006-2007). The results from the survey data show that while some sentencing practices have changed slightly, Booker has not dramatically altered them. And from the USSC data we find that while federal judges in general sentence more leniently post-Booker, extralegal disparity and interdistrict variation in the effects of extralegal factors on sentencing have not increased post-Booker. Thus, allowing judges greater freedom to exercise discretion does not necessarily result in increased extralegal disparity.
Friday, April 23, 2010
"Federal Judges Still Finding Their Way in Post-'Booker' Sentencing Landscape"The title of this post is the headline of this new article by Mary Pat Gallagher in the New Jersey Law Journal. Here is how it gets started:
Five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.
But judges are still struggling to grasp the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors. Instead of tossing the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.
There has been an incremental trend away from strict adherence to the guidelines. The statistics, released April 9, show that for the 2009 fiscal year, which ended Sept. 30, 2009, 56.8 percent of sentences were inside the guidelines, down from 61.7 for 2006, the first year after Booker. The percentage also fell in both of the intervening years too, to 60.8 percent in 2007 and 59.4 in 2008.
Though nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit. The second lowest and highest rates of fealty to the guidelines were the District of Vermont's 30.8 percent and the Southern District of Mississippi's 80.7 percent.
Circuit averages varied from 39.4 in the District of Columbia Circuit to 71.7 percent in the 5th Circuit. When judges opt not to stay within the guidelines, they are far more likely to go below them. Nationally, lesser sentences were meted out in 41.2 percent of cases, versus only 2 percent where they were greater.
Tuesday, April 20, 2010
Cameron Douglas sentenced to five years for federal drug offenseThis New York Daily News report and this New York Times piece provide some noteworthy details from today's celebrity federal sentencing in NYC. From the Daily News:
Cameron Douglas -- son of Michael Douglas and grandson of Kirk Douglas -- is going to prison for more than four years despite the pleas of his famous family.
As he sentenced the Hollywood scion, Federal Judge Richard Berman said Tuesday that too many of the letters he received treated him like a victim. "Get over that idea," he said.
Still, he knocked a big chunk off the 10 years the admitted junkie could have faced for conspiring to distribute crystal meth and cocaine. He gave the 31-year-old 60 months in prison, with credit for the eight months he's already served....
From the Times:
Cameron Douglas, the 31-year-old son of the actor Michael Douglas, was sentenced to five years in prison on drug-related charges in Federal District Court in Manhattan on Tuesday.
In January, Mr. Douglas, a D.J. and an aspiring actor, pleaded guilty to charges that he distributed large quantities of methamphetamines and cocaine over a three-year period. He also pleaded guilty to possession of heroin, a charge that was brought while he was on house arrest and awaiting trial.
Judge Richard M. Berman also sentenced Mr. Douglas to five years of supervised release; the judge said that he was not obligated to follow federal sentencing guidelines, which normally would call for a 10-year sentence for such charges. Federal prosecutors did not challenge the sentence.
Also, anyone interested in getting a sense of the media circus surrounding this celebrity sentencing, TMZ has video of Cameron Douglas's parents leaving the federal courthouse building where their son was sentenced.
Thursday, April 15, 2010
Way below-guideline sentence for "drug dealer in a lab coat" prompts lots of questionsThis Los Angeles Times article reporting on a federal sentence handed down yesterday in California, which is headlined "4-year prison term ordered for 'drug-dealing doctor'," implicates nearly every challenging post-Booker federal sentencing issue that has been confounding federal judges and practioners for the last 5+ years. Here are the fascinating details:
A Duarte physician who prosecutors said was "nothing more than a drug dealer in a lab coat" was sentenced to four years in federal prison Wednesday for prescribing powerful and highly addictive pain killers to people who had no medical need for the drugs.
The sentence was far less than the 17 years prosecutors had been seeking for Dr. Daniel J. Healy, and well below federal sentencing guidelines that called for a term of 17 to 22 years. Monrovia Police Det. Rich Doney, who worked the case with investigators from the Drug Enforcement Administration, called the sentence "a mockery of justice." "Some of his victims will spend longer than that in rehab," Doney said.
Healy, clad in a green jail-issue jacket and shackled at the waist and ankles, showed no emotion as the sentence was announced. Before imposing the sentence, U.S. District Judge Manuel L. Real said he struggled with balancing the seriousness of Healy's criminal conduct with his lack of a prior criminal record and the legitimate aspects of his medical practice. "He's not the ordinary, everyday drug merchant which we see in this court," Real said.
Real seemed conflicted as he gave a long, at times meandering address about the defendant. At one point Real said, "The evidence shows that Dr. Healy was concerned about the addictions of his patients." Moments later, he said, "Dr. Healy was in this for the money. There's no question about that."
Regardless of Healy's motivation, Real noted that as a result of his conviction, Healy's career as a doctor -- and the financial benefits that came with it -- was over. "Dr. Healy will never be able to do what he's done again when he's released from prison," Real said.
Defense attorney Roger J. Rosen said Healy was thankful for Real's "measured, thoughtful" sentence that took into account all aspects of the case. "He did what a judge was supposed to do," Rosen said.
Healy, according to prosecutors, led the nation in 2008 in ordering hydrocodone -- painkillers sold under the brand names Vicodin and Norco. They accused Healy of wildly overprescribing and selling the drug, for which there is a thriving black market, particularly among young adults. Some of Healy's patients were in their late teens and early 20s and had been friends of Healy's sons. Some patients, court documents state, would leave with hundreds or even thousands of pills at a time.
One man who was observed by police entering Healy's clinic before it opened for the day was pulled over a short time later and had 12 commercial-size bottles of Vicodin and three containers of Xanax in his car -- 7,500 pills in all. The man told police he'd just paid Healy more than $5,000 cash for the drugs, and was planning to sell them for profit, according to court records.
Healy pleaded guilty in July to intentionally distributing oxycodone without a legitimate medical purpose. The remaining 16 counts against him were dropped in exchange for the plea. In addition to imposing the four-year prison term, Real sentenced Healy to 10 years supervised release, 5,000 hours of community service and a $150,000 fine. "The end result is that this particular drug-dealing doctor is off the streets," said Assistant U.S. Atty. David Herzog, who prosecuted the case.
Here are just a few follow-up questions of both theory and practice on which I would love reader input via the comments:
1. Do folks who believe strongly in retributivist theories of punishment agree that this sentence makes "a mockery of justice"?
2. Do folks who believe strongly in utilitarian theories of punishment agree that this sentence makes "a mockery of justice"?
3. Do folks think prosecutors should (and/or will) appeal this sentence as substantively unreasonable?
4. Do folks think the addition of 5,000(!) hours of community service (which is roughly 2.5 years of indentured servitude) makes the relatively short prison term more reasonable or should that part of the sentence be viewed as insignificant in a post-Booker reasonableness analysis?
April 15, 2010 in Booker in district courts, Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (12) | TrackBack
Friday, April 02, 2010
Another court exressly embraces 1-to-1 sentencing ratio for all crack sentencings
While Congress is in the midst of considering how to adjust the mandatory minimum statutory sentencing terms for crack offenses (background here and here), another federal district judge earlier this week formally explained in US v. Greer, No. 6:09-CR (E.D. Tex. Mar. 30, 2010) (available here), that he "will use a 1-to-1 ratio for this and all future crack cocaine cases, and mitigating and aggravating factors under 18 U.S.C. § 3553(a) affecting sentencing will be separately considered on a case-by-case basis."
I learned of this Greer ruling thanks to this posting via the Dallas Morning News, which also reported on additional federal judges who have adopted this approach in other parts of Texas:
While Congress works on legislation to correct the historic inequity in federal crack cocaine sentencing -- a person convicted of crack cocaine possession gets the same mandatory jail time as someone with 100 times the same quantity of powder cocaine -- federal judges have begun to mete out their own fairer sentences.
Locally, U.S. District Judge Ed Kinkeade in Dallas and U.S. District Judge Terry Means in Fort Worth have sentenced crack defendants on a 1 to 1 ratio, said Richard Anderson, head of the federal public defender's office for the Northern District of Texas. U.S. District Judge Barbara Lynn has "reached the equivalent result through use of a variance, but I don't believe she stated the ratio on the record," he said.
This past Tuesday, on March 30, U.S. District Judge Leonard Davis in Tyler became the first judge in the neighboring Eastern District of Texas to issue such a sentence, according to an alert sent out by Kenneth Hawk, with the federal defender's office in Tyler.
Some related posts:
- Thoughtful new district court opinion adopting 1:1 crack/powder ratio
- Another district judge adopts 1-to-1 crack/powder sentencing plan
- Noting the latest state of the crack-powder sentencing debate
- With the new DOJ advocating completely eliminating crack/powder disparity, now what?
- DOJ's basic game-plan while urging crack sentencing reform from Congress
- Unanimous(!!) vote by Senate Judiciary Committee to reduce (but not eliminate) crack/powder disparity
- Varied reactions to the crack/powder reform work of the Senate Judiciary Committee
- Full Senate passes bill to reduce (but not eliminate) crack/powder disparity
- Will and should House adopt the crack/powder reform compromise passed by Senate?
- Questions about the "when" and "now what" for crack/powder sentencing reform
Sunday, March 21, 2010
Latest new federal sentencing statistics from the US Sentencing Commission
The US Sentencing Commission has some fresh new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:
First Quarter FY10 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 2010. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published March 17, 2009)
The new data continue to show a very slow and steady migration away from guideline ranges: these data show that now barely 55% of all federal sentences are within the calculated guidelines range; prosecutors, who now requested departures in over 26% of all cases, continue to increase be the primary driving force behind below-range sentences.
Friday, March 12, 2010
Fifth Circuit flags, but dodges, circuit split over advisory guidelines and ex post facto issuesThough decided last month, the Fifth Circuit just revised and re-released an interesting little decision, US v. Castillo-Estevez, No. 09-40096 (5th Cir. Feb. 9, 2010) (available here), which discusses one of my "favorite" unresolved post-Booker sentencing issues. Here is the heart of the ruling:
In United States v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. 2007) (Jones, C.J., concurring), it was observed that the now-advisory guidelines should not raise ex post facto concerns because “the sentence imposed by the court need not be harsher under later guidelines than it would have been under the guidelines in effect when the offense was committed.” Rodarte-Vasquez, 488 F.3d at 325. The Seventh Circuit adopted this view of the guidelines post-Booker in United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), holding that the Ex Post Facto Clause does not apply to sentencing guidelines amendments because it applies “only to laws and regulations that bind rather than advise.” Id. at 794. See also United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006) (“When the Guidelines were mandatory, defendants faced the very real prospect of enhanced sentences caused by changes in the Guidelines . . . that occurred after they had committed their crimes. Now that the Guidelines are advisory, the Guidelines calculation provides no such guarantee of an increased sentence . . . . As such, the Ex Post Facto Clause itself is not implicated.”). But cf. United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008) (rejecting the Seventh Circuit’s reasoning in Demaree); United States v. Larabee, 436 F.3d 890, 894 (8th Cir. 2006) (stating post-Booker that “‘retrospective application of the Guidelines implicates the ex post facto clause’”).
We need not determine here whether ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker. Even if the district court’s application of the 2008 guidelines violated the ex post facto clause, the error would certainly not be “plain” in light of such post-Booker cases as Rodarte-Vasquez, Demaree, and Barton. To be “plain,” legal error must be “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).... Because the caselaw reveals a “reasonable dispute” regarding the ex post facto implications of retroactive application of the advisory guidelines, the district court’s error, if any, was not plain.
I continue to be surprised no only by the fact that the ex post facto issue remains unresolved five years after the Bookerdecision, but also by the fact that it seems to be so rarely litigated or even addressed. My sense is that most districts and circuit continue to operate as if ex post facto issues still limit the application of revised guidelines, though I have always been instinctually drawn to the reasoning of Rodarte-Vasquez, Demaree, and Barton.
Important and worrisome new multivariate analysis from USSC of post-Booker sentencing patternsI am pleased to see that the US Sentencing Commission has released this potent and important new sentencing data analysis, which is titled "Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report’s Multivariate Analysis." I am not pleased (though also not especially surprised) about what that analysis reveals about some post-Booker sentencing trends. Specifically, according to this new USSC report:
This report focused on three separate time periods which together spanned the time between May 1, 2003, and September 30, 2009. The Commission found a correlation between the length of sentences imposed on some groups of offenders and the demographic characteristics of those offenders. These differences were not present in all time periods under study and differed in magnitude in the time periods in which they were observed....
Based on this analysis, and after controlling for a variety of factors relevant to sentencing, the following observations can be made:
Black male offenders received longer sentences than white male offenders. The differences in sentence length have increased steadily since Booker.
Female offenders of all races received shorter sentences than male offenders. The differences in sentence length fluctuated at different rates in the time periods studied for white females, black females, Hispanic females, and “other” female offenders (such as those of Native American, Alaskan Native, and Asian or Pacific Islander origin).
Non-citizen offenders received longer sentences than offenders who were U.S. citizens. The differences in sentence length have increased steadily since Booker.
Offenders with some college education received shorter sentences than offenders with no college education. The differences in sentence length have remained relatively stable across the time periods studied.
The data were inconsistent as to the association between an offender’s age and the length of sentence imposed.
Any serious student of the history of prosecutorial and judicial sentencing discretion knows that with any increase in discretion power will come some increase in disparate outcomes and the risk that disparities are influenced by non-legal factors that we might wish would not (but always does) influence how imperfect humans exercise their discretion. These realities always demand careful assessment and sober reflection, but they also always demand a careful reaction and sober consideration of what remedies are possible and what remedies might prove worse than the disease.
Though I will need to review this new report and its data closely before developing a detailing reaction to these findings, I will start by suggesting that my own anecdotal post-Bookerexperiences suggest that economic realities and the disparate efforts of prosecutors and defense counsel may account for worrisome disparities more than the determinations of sentencing judges. I fear there my be some systematic and structural biases, often influenced by socio-economic realities, that can result in prosecutors charging and bargaining a bit harder on certain types of offenders and that can result in defense counsel developing better mitigating arguments for certain types of offenders.
Thursday, March 11, 2010
Latest federal sentencing data show continuing slow migration away from guidelines
The US Sentencing Commission has some fresh new sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Final FY09 Quarterly Sentencing Update: An extensive set of tables and charts presenting the final cumulative fiscal year quarterly data on cases sentenced in fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published March 11, 2010)
The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system, with a continuing slow migration away from the guidelines due to slight increases in prosecutor-initiated and judge-initiated non-guideline sentences. Specifically, these data show that for FY09, approximately 57% of all federal sentences are within the calculated guidelines range, with prosecutors sponsoring a below-range sentence in more than 25% of all cases, and with judges ordering an above-guideline sentencing in 2% of all cases and initiation a below-guideline sentence in nearly 16% of all cases.
Not long after the 2008 election, I speculated here that ground-level sentencing trends might show the imprint of a new administration before there were any formal legal and policy developments. Interestingly, these latest numbers continue the trend of a very slow, but not seemingly steady, migration away from guideline ranges. But, in general terms, these data still show only gradual evolutions, not any obvious revolutions, in federal sentencing practices and outcomes at the district court level
Thursday, February 25, 2010
Effective ABA Journal review of Booker at five
Mark Hansen has this effective new piece, headlined "You Say You Want a Revolution: In Booker plus five, there’s been rumbling but hardly rebelling," about federal sentencing life since Booker. Here is how it begins:
Jan. 12 marked the fifth anniversary of U.S. v. Booker, the U.S. Supreme Court decision that some said would revolutionize federal sentencing. The case transformed federal sentencing guidelines from what had long been a mandatory system into an effectively advisory one.
Defense lawyers cheered. District court judges viewed it as sort of an Emancipation Proclamation from the tyranny of the mandatory guidelines. Prosecutors, on the other hand, feared the decision would lead to wildly inconsistent sentences. And some lawmakers worried that it would plunge the courts into “pre-guidelines chaos.”
Five years out, however, Booker has become anything but revolutionary. So far it’s resembled a midfield scrum with either side trying to figure out which way the ball is bouncing.
Wednesday, February 24, 2010
Off to Miami for National Institute on White Collar Crime
As detailed here on the ABA's website, today starts the 2010 White Collar Crime National Institute. I have the great fortune and pleasure to be escaping a predicted snowstorm in NYC to head this afternoon to Miami Beach to participate on a terrific sentencing panel taking place Thursday morning.
Everyone can access at this link the full program for this big event, which details that the feature speaker is Lanny Breuer, the DOJ Assistant Attorney General. In addition, the promotional materials indicate that "keynote panels will focus on the most significant fraud trials of the past year, as well as an in-depth review of recent developments regarding the Brady Rule." Here is how my panel is titled and described:
SENTENCING IN WHITE COLLAR CRIMINAL CASES AND WITNESS/VICTIM RIGHTS: Panelists will address several topics related to sentencing in white collar criminal cases, including reasonableness, loss causation and calculation, the rights of victims, and approaching any appeal.
Thursday, February 18, 2010
"Judicial Discrection: A Look Back and a Look Forward Five Years After Booker"
The title of this post is the title of this terrific symposium about federal sentencing law in which I am participating today. Though sponsored by the University of Utah, I am actually about to head to DC to participate in the event from inside the Beltway, along with some of the other of these impressive participants:
- William K. Sessions III, U.S. District Court Judge, Vermont and Chair, U.S. Sentencing Commission
- Paul Cassell, Ronald N. Boyce Presidential Professor of Criminal Law, Univ. of Utah S.J. Quinney College of Law
- Benjamin McMurray, Adjunct Professor of Law, Univ. of Utah S.J. Quinney College of Law
- Steven L. Chanenson, Professor of Law, Villanova University School of Law
- Jonathan Wroblewski, Director, Office of Policy and Legislation, Criminal Division, U.S. Department of Justice
- Erik Luna, Professor of Law, Washington and Lee School of Law
Here is how the promotional materials describe the event:
This symposium will explore issues surrounding judicial discretion and sentencing. After opening remarks from Judge William K. Sessions III, Chair of the U.S. Sentencing Commission, panelists will explore the extent to which the sentencing guidelines continue to provide useful guidance to judges five years after the Supreme Court’s decision in United States v. Booker. The panelists will also explore mandatory minimum sentencing schemes and ask whether they usefully impose tough punishment or inappropriately restrict the ability of judges to make the punishment fit the crime. The symposium will conclude with a general discussion of sentencing issues and provide an opportunity to audience members to ask questions of the participants.
Excitingly, folks can watch this event live online (as well as comment below) thanks to the magic of the internet and a link at dashboard.law.utah.edu.
February 18, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (9) | TrackBack
Wednesday, February 03, 2010
Notable student note on preserving sentencing objections after BookerAnyone who struggles to make sense of sound sentencing procedures after Booker will want to check out this new student note in the Vanderbilt Law Review, which is titled "'Objection: Your Honor Is Being Unreasonable!' — Law and Policy Opposing the Federal Sentencing Order Objection Requirement." Here is a section of the Note's introduction:
This Note argues that the requirement to object to a judge’s sentencing order should be abolished for two fundamental reasons. First, the policy arguments against the requirement are stronger: requiring objections (1) promotes frivolous redundancy, (2) creates a procedural pitfall which could result in unfairly higher sentences, (3) works against judicial economy by leading to collateral claims of ineffective assistance of counsel, and (4) is ultimately unnecessary because prevailing parties already have incentive to perfect the record themselves. Second, and more importantly, the sentencing order objection requirement contradicts Federal Criminal Rules of Procedure 51(a) and (b), the provisions governing the preservation of claimed error.
Tuesday, January 26, 2010
Judge Weinstein attacks Wall Street while sentencing with aid from a judicial sentencing panelA new sentencing story out of the Eastern District of New York, which is described in this New York Law Journal piece headlined "In Securities Dealer's Sentencing, Judge Blasts 'Corrupt' Wall Street Culture," includes a gut of exciting themes for a law geek like me. Here are excerpts:
In sentencing former Credit Suisse securities dealer Eric Butler to five years in prison, Eastern District of New York Judge Jack B. Weinstein has condemned "the pernicious and pervasive culture of corruption" on Wall Street.
"The blame for this condition is shared not only by individual defendants like Butler, but also by the institutions that employ them, those who carelessly invest, and those who fail to regulate," Weinstein wrote in the Statement of Reasons for the sentencing he issued on Friday in United States v. Butler, 08-cr-370.
"Supervision is seriously negligent; greed and short-term gain are so enormous that fraud and arrogant disregard of others' rights and of ethics almost encourage criminal activities such as defendant's," he said. In addition to the five-year sentence and three years of supervised release, Weinstein fined Butler $5 million, about $1 million more than Butler's estimated assets.
United States v. Butlermarked perhaps the first major criminal action stemming directly from the subprime crisis. Following a three-week trial, Butler was convicted in August of securities fraud, conspiracy to commit securities fraud and conspiracy to commit wire fraud for his role in a scheme to trick investors into purchasing high-risk and high-commission subprime securities....
Judge Weinstein dedicated a significant portion of Friday's eight-page statement [which is available here] to excoriating the culture of Wall Street....
The sentencing was also notable for Weinstein's use of an advisory panel of fellow Eastern District judges, an increasingly common practice in Brooklyn federal court since 2005 when the U.S. Supreme Court determined in United States v. Booker, 543 U.S. 220, that sentencing guidelines should be treated as advisory rather than mandatory. Although Weinstein declined to name the judges he consulted, the panel did include the Eastern District's chief judge, Raymond Dearie.
Dearie said in an interview Monday that he expects the use of advisory panels to become "fairly standard" in the Eastern District in the near future for difficult cases, such as those with broad or long guidelines, and as the imperatives of the pre-Booker guidelines recede.
In the present case, Weinstein wrote that he convened the advisory panel because "of the severe impact of defendant's frauds on the international short- and long-term securities markets, and other complexities presented by this sentencing." In addition to the unspecified number of judges, the panel included "an expert on sentencing guidelines from the court's Probation Department," Weinstein wrote.
In pre-sentencing arguments, the prosecution contended that Butler faced a statutory maximum of 45 years and a guidelines recommendation of up to life in prison. The advisory panel recommended six to 10 years. Butler requested probation. Weinstein settled on a five-year sentence.
"I have imposed a lesser sentence [along] with loss of all defendant's assets and a heavy fine, for two primary reasons," he wrote. "[F]irst, defendant's young child and loving wife suggest the desirability of defendant's early presence at home, working and supporting his family economically and psychologically; second, a strong supportive network of extended family, friends, teachers, and potential employers, as well as defendant's positive reaction to supervision since his arrest, indicate a high probability of rehabilitation."
Dearie said he knew of no other district court that regularly uses advisory panels, but that when he testified before the U.S. Sentencing Commission last year, the Massachusetts District Court seemed "very" interested in the concept.
Though the Wall Street smack-down is what makes the headlines here, I think true sentencing geeks like me are likely to get more excited and intrigued by the idea that the use of advisory sentencing panels may become "fairly standard" in the Eastern District in the near future for difficult cases. And, in the near future, I hope there will be full transparency about who is on these panels and how they make their recommendations.
Wednesday, November 18, 2009
District judge imposes sentence after defendant ordered to take (and fails) lie-detector testI just came across what strikes me as a very unusual federal sentencing story from the district court of Minnesota. I have bolded below the part of this local press article, which is headlined "Drug sales net prison term, and a lecture from federal judge," that really grabbed my attention:
U.S. District Judge James Rosenbaum was angry. The target of his wrath, standing before him Tuesday, was Mark Andrew Goetz, 41, of Minneapolis, who had pleaded guilty to selling drugs to an undercover informant.
But it wasn't a run-of-the-mill dope case. Goetz ran a business registered by the government to destroy outdated or unwanted pharmaceuticals. But instead of destroying some of the drugs, he sold them on the street.
Goetz was in the middle of sentencing Nov. 5 when Rosenbaum asked him if he'd only sold drugs illegally twice, as the government had alleged in its indictment. Goetz assured him those were the only times, but the judge didn't believe him, halted the proceedings and ordered Goetz to take a lie-detector test.
As it turned out, Goetz had lied and that visibly rankled Rosenbaum when the man was finally sentenced Tuesday in federal court in Minneapolis. "Why are you lying to me?" the judge asked, referring to the earlier hearing. Goetz replied that he'd been scared and thought he had to admit only to the two drug sales prosecutors had charged him with. "You're playing games," Rosenbaum thundered. "You're a convicted criminal. It's a little late for that."
Goetz told him there were three other instances of illegal drug sales and that was it. "I give you my word," he said. "How good is that?" the judge shot back. "It was worthless the other day. All I know for sure is you're a liar."
The judge sentenced Goetz to four years in prison, with supervised release for three years after that....
On July 28, Goetz agreed to a plea bargain. In return for pleading guilty to distributing alprazolam and oxycodone, the government would drop the indictment's other count.
At sentencing, DeGree asked Rosenbaum for a "significant variance" from federal sentencing guidelines, which called for a sentence ranging from 57 to 71 months. He noted that Goetz had started his own business "and ran (it) ethically for 16 years" and had lived an "exemplary" life until "some financial pressures" prompted him to sell drugs he had been entrusted to destroy....
Assistant U.S. Attorney Steve Schleicher opposed leniency, saying Goetz's money troubles boiled down to the fact that he "bought a house he couldn't afford."
I have never before heard of a judge stopping a sentencing hearing mid-stream and then ordering the defendant to take a lie-detector test! I suppose it is also noteworthy that the district judge here, even after being "angry" at the defendant for his lies during the sentencing proceedings still imposed a below-guideline sentence.
Friday, November 13, 2009
Former congressman William Jefferson scheduled to learn sentencing fate todayAs detailed in this local article, which is headlined "William Jefferson can expect long prison sentence -- but not 27 years, experts say," many are forecasting that a record-setting sentence for a former member of Congress will be handed down today. Here are the particulars:
William Jefferson is facing a lengthy prison sentence from U.S. District Judge T.S. Ellis III on Friday, legal experts say, but probably not the 27 to 33 years recommended by prosecutors.
Jefferson, 62, the New Orleans Democrat who served nine terms in the House of Representatives, is due for sentencing Friday afternoon in the same Alexandria, Va., federal courthouse where he was convicted in August 11 public corruption counts. The jury acquitted him on five other charges after an eight-week trial.
Those willing to predict a sentence suggest that Jefferson faces something in the range of 10 to 20 years, still the harshest punishment handed down in a congressional corruption case. "The federal government is going to want to make an example of him," said Kevin Tamez, managing partner of a New Jersey firm that specializes in federal sentencing issues. "But I would be shocked if he got anything close to 27 or 33 years."...
Predicting how long a sentence the defendant will get is difficult, especially now that judges are not required to strictly follow federal sentencing guidelines. Ellis appears to have established a floor by imposing stiff prison terms for two men who pleaded guilty in the case.
Brett Pfeffer, a former Jefferson aide, got eight years for conspiracy to commit bribery. Vernon Jackson, CEO of a Kentucky technology firm who testified that he sent payments to a firm headed by Jefferson's wife in return for the congressman's help landing contracts in Western Africa, was given seven years and three months.
"This is a hard one because the sentencing guidelines are almost off the charts, in effect a life sentence for Jefferson who is 62," said Harry Rosenberg, a former chief federal prosecutor in New Orleans now in private practice. Rosenberg said he doesn't expect the judge to along with what the Justice Department wants but believes the sentence will be "significantly longer" than the terms given Jackson and Pfeffer.
But Dane Ciolino, a Loyola University law professor, said that while the Jackson and Pfeffer sentences "are partly the result of lesser culpability, the acceptance of responsibility and cooperation with the government, Mr. Jefferson's sentence should not be grossly disproportionate to theirs." "Otherwise, his sentence will appear to be a penalty for the exercise of his constitutional right to a fair trial," Ciolino said.
Jefferson should benefit by some calculations used in sentencing such as this being his first criminal offense and the fact that other members of Congress convicted of corruption have received sentences no higher than eight years, four months. That sentence was given to former Rep. Duke Cunningham, R-Calif, after he pleaded guilty to taking bribes to get appropriations in House spending bills for defense contractors. Jefferson's lawyers argue that their client never introduced a bill or sought an earmark, or appropriation in return for the payments alleged by the government.
In a memorandum submitted Thursday, lead prosecutor Mark Lytle and his co-prosecutors disagreed. "The jury found beyond a reasonable doubt that the defendant converted his congressional office into criminal racketeering enterprise in which he repeatedly sold his office to business people willing to pay cash, stock and equity interests through which the defendant and his family stood to gain more than $500 million," the prosecutors wrote. "Even the most egregious of the cases cited by the defendant do not involve the potential for payoffs of hundreds of millions of dollars."
UPDATE: This Reuters piece details the sentencing outcome: "William Jefferson, who hid $90,000 in cash in his freezer, was sentenced on Friday to 13 years in prison for bribery, racketeering and money laundering."
Thursday, November 05, 2009
Playing the "blame game" for increased sentencing disparities after Booker
With the upcoming five-year anniversary of the Supreme Court's decision in Booker and a new Wall Street Journal piece discussing the enduring challenge of balancing individual and equal justice, I have been thinking lately about increased federal sentencing disparities. Here are some of my early thoughts:
1. As was rightly expected, there seems to be increased disparity in sentencing outcomes after Booker. With the guidelines advisory (but with the open-ended 3553(a) standards mandatory), it was all but inevitable that a diverse set of district judges nationwide, who are imposing sentences while subject to a diverse sets of legal, cultural and practical influences in diverse settings, were likely to impose a more diverse set of sentencing outcomes.
2. Increased sentencing disparities after Booker seem most evident where the now-advisory sentencing guidelines are least sound, such as in low-level crack cases, child porn downloading cases and high-loss, white-collar fraud cases. Especially when first offenders in these cases are facing very high guideline ranges, many sentencing judges (though still not most) believe that 3553(a) demands imposing non-guideline sentences.
3. Increased sentencing disparities after Booker might be reducing overall sentencing injustice in the federal sentencing system given the injustice of certain guidelines. As the US Sentencing Commission's own studies suggest, having all crack offenders sentenced to often unjust sentences before Booker may be much worse that having some (but not all) crack offenders now getting different and sometimes more just sentences after Booker.
4. Federal district judges probably merit the least blame for increased sentencing disparities after Booker, as they must in each case try to balance the mandates of the open-ended 3553(a) standards without the help of sound sentencing guidelines in many cases. Indeed, playing the "blame game," here is how I would roughly prioritize who merits the most "blame" for increased sentencing disparities after Booker:
A. Congress --- for failing to seek to reform or revise the entire system after Booker
B. US Sentencing Commission --- for failing to revise the most unsound guidelines
C. SCOTUS and the Circuits --- for failing to give reasonableness review any substantive content
D. Justice Department --- for failing to urge Congress or the USSC to do better
Of course, there is additional "blame" to go around for increased sentencing disparities after Booker, as individual prosecutors and defense attorney have surely been "disparate" in their sentencing advocacy over the past five years. Similarly, there is surely increased post-Booker disparity in sentencing procedures adopted by individual US Attorneys' offices and probation offices, and differing procedures surely contributes to disparate outcomes.
But as suggested above, I think it unfair (and not especially productive) to blame sentencing actors with case-specific sentencing responsibilities for increased sentencing disparities after Booker. These actors will (and necessarily should) principally focus on achieving individualized justice in the individual cases they address each day. If there is a broad concern that system-wide justice is not being well-served as we approach Booker's five-year anniversary, the blame should be principally placed on the system-wide actors who've mostly produced and perpetuated the post-Booker system-wide framework.
As Booker approaches five, the individual/equal justice debate continues on
Remarkably, in just a couple of months, we can mark the five-year anniversary of the Supreme Court's decision in Booker to transform the federal sentencing guidelines from legal mandates to advisory rules. The the debates over federal sentencing rules and results have taken many forms over these last five years, this new article from the Wall Street Journal spotlights that the most enduring issue remains whether Booker strikes a sound balance between the competing goals of individual justice and equal justice.
The new WSJ piece is headlined "Looser Rules on Sentencing Stir Concerns About Equity," and it gives particular attention to potentially disparate white-collar sentencing outcomes after Booker. Here are excerpts:
[L]andmark Supreme Court cases in 2005 and 2007 ... gave federal judges more freedom to depart from sentencing guidelines. But this relatively new latitude has caused a thorny problem to creep back into the federal system: Defendants can receive wildly different sentences for similar crimes.
"There is preliminary evidence of greater inconsistencies between judges, who have the freedom to draw upon their own political, policy and punishment values when they make sentencing decisions," says Ryan Scott, a law professor at Indiana University who has studied sentencing behavior by federal judges....
Proponents of greater sentencing discretion say past rules were too inflexible, preventing judges from using their expertise to fit the punishment to the crime. But others warn that the new freedom risks a return to the problem that prompted Congress to call for uniform sentencing guidelines in the late 1980s: that defendants' fates will be subject largely to the whims of individual judges.
Since sentencing parameters were relaxed, early indications suggest that judges on balance are using their discretion to give longer white-collar sentences. Average prison sentences for fraud increased to about two years in the nine months ended in June 2009. That is six months longer than fraud sentences for the same period five years earlier, according to data from the U.S. Sentencing Commission, a federal agency.
But in some cases, judges have handed down much lower sentences than would have been required by law just a few years ago.... The new level of unpredictability has drawn the ire of some prosecutors and defense attorneys worried about inequitable sentencing.
For white-collar cases in particular, "we're back to a pre-guidelines era," says Frank Bowman, a law professor at the University of Missouri who helped shape federal sentencing guidelines in the mid-1990s. "You see the most disparity and the most potential for disparity, and I think that's a bad thing."
Alan Vinegrad, a former U.S. attorney in Brooklyn who is now a defense lawyer, counters that being able to customize sentences can increase fairness in the judicial process, even though there is more uncertainty in the courtroom. "To me," he says, "that risk is tolerable."
Concern that the relaxed guidelines are creating unfair disparities appears to be growing. In June, U.S. Attorney General Eric Holder said in a speech that it was important to assess whether recent sentencing practices "show an increase in unwarranted sentencing disparities" based on "differences in judicial philosophy among judges working in the same courthouse."
Monday, November 02, 2009
"Is Colorado’s U.S. Bench Embracing Sentencing Responsibility?"The title of this post is what would have been a praiseworthy headline for this local article from the publication Law Week Colorado. Instead, as a click through will show, the publication went with the more provocative headline of "Is Colorado’s U.S. Bench Ignoring Sentencing Guides?". The article is a bit more balanced that the headline, and here are snippets:
Have some of Colorado’s federal trial judges turned their backs on sentencing guidelines? Colorado’s top federal prosecutor thinks so. At least one judge and the state’s federal public defender disagree.
Testifying before the U.S. Sentencing Commission at a public hearing in Denver last week, David Gaouette, U.S. attorney for Colorado, said that certain unnamed district judges have routinely disregarded sentencing guidelines in the four years since the U.S. Supreme Court’s Booker decision. Though guidelines are no longer mandatory, judges are still supposed to consult them before issuing sentences.
“The advisory nature of the sentencing guidelines, post-Booker, has resulted in greater inconsistencies in sentences among our judges,” Gaouette wrote in testimony he submitted to the commission. He said he was particularly concerned that the departures from the guidelines result in more lenient sentences. “Of the six federal judges in our district, three follow the guidelines, one sometimes does, and two do not use the guidelines. One judge has told one of my AUSAs [assistant U.S. attorneys] that the sentencing guidelines are arbitrary and would not be followed.”
Gaouette declined to identify the judges he thought ignored the guidelines, or to specify which judges he counted among the six he mentioned. Colorado has five federal judges, who have mixed criminal and civil dockets, and five senior judges, who are allowed to exclude criminal or civil cases if they choose.
Commission Chair Ricardo Hinojosa seemed surprised by Gaouette’s claims. “I have yet to hear of judges just coming out on the bench and saying it’s not going to be a guideline sentence,” Hinojosa said. Gaouette replied that he drew his conclusions either from observing judges’ sentencing habits or from remarks judges made off the record.
John Kane, senior judge on Colorado’s U.S. District Court, and Raymond Moore, federal public defender for Colorado and Wyoming, said the advisory guideline system is not creating the unwarranted sentencing disparities Gaouette alleges. Colorado is not experiencing a case of “judges gone wild,” Moore told the panel.
Kane said all of Colorado’s federal judges follow the Supreme Court’s ruling that the guidelines must be considered first when formulating sentences. Regarding Gaouette’s remarks about judges refusing to follow the guidelines, Kane told Law Week Colorado, “I don’t believe that statement is true. It’s not accurate.”
Thursday, September 24, 2009
Below-guideline sentence for corrupt Alaska state representative
As detailed in this local article from Alaska, which is headlined "Former Alaska rep gets 6 months in state's bribery scandal," another high-profile white-collar offender has received another high-profile below-guideline federal sentence. Here are the details:
Former state Rep. Beverly Masek was sentenced to six months in federal prison today for her part in the Alaska political corruption scandal, a lenient punishment that sliced a year from the minimum confinement recommended by federal guidelines.
U.S. District Judge Ralph Beistline said Masek betrayed the public trust and the oath of office she took five times in Juneau -- one for each of the two-year terms she served representing the Willow area in the Legislature. Masek admitted taking two illegal payments in 2003 of $2,000 each from former Veco Corp. chief executive Bill Allen, the second time in payment for spiking an oil-tax bill. Allen, an oil-field contractor, was concerned that the tax bill would hurt his clients.
In delivering a sentence substantially below the 18- to 24-month recommendation in federal guidelines, Beistline cited the long delay between the commission of the crime and its prosecution by federal authorities, who didn't charge Masek until March. She pleaded guilty to conspiracy to commit bribery.
Masek, 45, a former Iditarod musher, cried throughout the 80-minute hearing, including when she promised to obtain sobriety treatment after her prison sentence. "I feel I've been operating on a broken sled runner," Masek said, recalling her days has a dog musher. "I feel I've been on that broken sled runner for quite a while. I'd really like to fix it."
Wednesday, September 09, 2009
Astute views from the district court about post-Booker sentencing realities
As noted in this prior post, today the US Sentencing Commission started yet another one of its regional public hearings. This fourth regional public hearing is taking place in Chicago, and this official agenda details the a fascinating group of invited witnesses scheduled to testify. And now some of the submitted written testimony is linked via the agenda.
Though I would recommend that everyone read all of the linked submitted testimony now available this official agenda, I want to put in a special plug for the submissions from the district judges. In various way, all the realities of sentencing "cash out" in front of sentencing judges, and thus the insights and concerns expressed by federal district judges seem especially important. And, based on my quick scan, the insights and concerns expressed by these district judges testifying this morning in Chicago seem especially astute and worthy of this blog shout out:
- Testimony of James F. Holderman, Jr., Chief District Judge, Northern District of Illinois
- Testimony of Jon P. McCalla, Chief District Judge, Western District of Tennessee
- Testimony of Philip Peter Simon, District Judge, Northern District of Indiana
Wednesday, August 19, 2009
Yet another district judge formally adopts 1-to-1 crack/powder sentencing ratio
As detailed in this effective local article, a federal judge in Pennsylvania has now "said 'sound policy reasons' — including the new stance of the Justice Department — led him to reject long-established guidelines for sentencing crack-cocaine defendants." Here are more basics from the article:
Senior U.S. District Judge Maurice B. Cohill Jr. characterized the guidelines as unfair.... Cohill rejected the crack-cocaine guidelines for two defendants, whom he sentenced in Erie Aug. 4. He issued two nearly identical written opinions on Thursday that detailed his reasoning.
The chief federal prosecutor in Erie, Assistant U.S. Attorney Marshall Piccinini, told Cohill last week that the guidelines were meant to consider the intense high and craving that crack cocaine brings compared to powder cocaine. As Cohill said in his written decisions, the guidelines also assumed that violence accompanied the trafficking of crack.
Piccinini said his office would file no motions objecting to Cohill's decision in the crack cases.
The rulings referenced here came in US v. Owens and US v. Russell, and here is how the Russell decision (which is uploaded below) gets started:
Defendant Cleotis Eugene Russell, Jr. appeared before this Court for resentencing on August 4, 2009. At Mr. Russell’s original sentencing hearing on November 28, 2007, I rejected Mr. Russell’s request to vary from the guideline range based on the imbalance in sentencing between crack and powder cocaine. The United States Court of Appeals for the Third Circuit remanded this case for resentencing because the United States Supreme Court in Kimbrough v. United States, 128 S. Ct. 558 (2007) and Spears v. United States, 129 S.Ct. 840 (2009), effectively overruled United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), a case I relied upon in rejecting Mr. Russell’s request for a variance. At resentencing I applied a 1-to-1 crack-to-powder ratio, an approach to sentencing in crack cocaine cases which I intend to apply in all future crack cocaine sentencings. I write this Opinion to explain my reasons for this.
Some recent related posts:
- Thoughtful new district court opinion adopting 1:1 crack/powder ratio
- Another district judge adopts 1-to-1 crack/powder sentencing plan
- Noting the latest state of the crack-powder sentencing debate
- "Momentum Builds to Equalize Cocaine Penalties"
- Still more potent talk from AG Holder about federal sentencing reform
- With the new DOJ advocating completely eliminating crack/powder disparity, now what?
- DOJ's basic game-plan while urging crack sentencing reform from Congress
Wednesday, August 12, 2009
Notable new paper with interesting post-Booker data analysis
This new paper on SSRN by Ryan Scott, which is titled "In Search of the Booker Revolution," presents new data and analysis on how one district is sentencing after Booker. Here is the abstract:
In 2005, the Supreme Court in United States v. Booker rendered the United States Sentencing Guidelines advisory. Arriving after eighteen years of complex and mandatory sentencing rules, the decision initially was heralded as revolutionary, both by critics and defenders of the federal Guidelines. But subsequent reports by the Sentencing Commission have shown few signs of a Booker revolution, revealing surprisingly modest changes. The existing research on post-Booker sentencing is incomplete, however, because it has not examined the response of individual judges to the decision. That omission is critical, given that the reduction of inter-judge disparity was the central purpose of the Guidelines. Studying sentencing patterns by individual judges is notoriously difficult because the Commission does not disclose the identity of the sentencing judge when releasing case records. But one district court — the District of Massachusetts — has adopted a unique policy that makes key sentencing documents available to the public, allowing the analysis of judge-specific data.
This Article offers the first empirical evidence of individual judges’ responses to Booker, drawing on a dataset of sentences from 2002 to 2008 by judges in Boston who share a common case pool. An analysis of those sentences suggests a modest but clear increase in inter-judge disparity since Booker. The strength of the relationship between the identity of the sentencing judge and sentence length has increased, by some measures 60-80% above pre-Booker levels. The identity of the judge also has become a stronger predictor of sentencing relative to the Guidelines: some judges now sentence outside the guideline range more frequently, and to a greater extent, than their colleagues. Although it is difficult to know whether similar trends have played out in other districts, the Boston data suggest that judges’ disagreements about the Guidelines have a greater effect on sentencing outcomes since Booker.
This interesting and important data provides a vakuable new empirical perspective on Booker's impact, though the District of Massachusetts is not a perfectly representative sentencing district for lots of reasons. Still, for everyone eager to get a handle on Booker's impact in at least one district, this paper provides the latest, greatest view from the sentencing courts.
Sunday, July 26, 2009
Noting the realities of federal sentencing after Booker in corruption cases
This new article in the Philadelphia Inquirer, which is headlined "Federal judges freed from sentencing rules," spotlights how the discretionary federal sentencing regime created by Booker has been playing out in corruption cases. Here is how it starts:
Both were powerful state senators. Both were found guilty of fraud. And both submitted reams of letters from supporters who hailed their good deeds as public servants.
Pennsylvania's Vincent J. Fumo, convicted of all 137 counts against him, will soon head off to prison for 4.5 years. New Jersey's Wayne Bryant, who was found guilty of 12 charges, was sentenced Friday to four years behind bars.
While prosecutors had sought longer sentences for both politicians, the cases highlight a kind of back-to-the-future event in the criminal-justice system: the return of discretion in federal sentencing since the U.S. Supreme Court ruled that once-mandatory guidelines are merely advisory.
"We're certainly back to much more subjective and idiosyncratic and discretionary sentencing," said Edward Ohlbaum, a law professor at Temple University who said the prosecutors' expected appeal of Fumo's sentence may well open the next chapter in the debate about how to punish corrupt politicians.
Wednesday, May 06, 2009
Procedural reasonableness reversal leads to big substantive sentence reduction
Thanks to a reader, I noticed a local article updating the interesting sentencing story of US v. Maynor. As detailed in this February post, the Fourth Circuit (in an unpublished opinion!) found an above-guideline sentence given to a former local sheriff to be procedurally unreasonable. This local article now provides, in the words of Paul Harvey, the rest of the story:
Former Robeson County Sheriff Glenn Maynor’s federal prison sentence was cut to two years on Tuesday, according a newspaper report. The Robesonianreported Tuesday evening that Maynor’s six-year sentence was dropped to 24 months....
In February, the U.S. Court of Appeals ruled that Glenn Maynor’s six-year sentence was too harsh in light of sentencing guidelines and the facts that the judge cited in issuing the sentence. The recommended range was 18 to 24 months....
Maynor was the highest-ranking lawman swept up in Operation Tarnished Badge, a six-year probe into corruption in the Robeson County Sheriff’s Office. Twenty-three people, mostly deputies, pleaded guilty to crimes that included kidnapping, money laundering, racketeering, theft of federal money and satellite piracy. Their sentences ranged from a few months to 34 years in prison.
Maynor pleaded guilty to lying to a grand jury and to allowing deputies to get paid for working at his home and at his election campaign’s golf tournament. He was sheriff from 1994 to 2004.
Monday, February 23, 2009
Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
I have not blogged at all about the ugly allegations against federal judge Samuel Kent, but this latest news about his case from Mary Flood at the Houston Chronicle means that Judge Kent may soon to become my new post-Booker federal sentencing poster-child. Here are the basics:
U.S. District Judge Samuel Kent pleaded guilty to one count of obstruction of justice today and retired from the bench, avoiding a trial on that charge and five others accusing him of sexually abusing two female employees. Kent was scheduled to see a jury selected this morning for his trial on all six felony counts.
Few federal judges ever go to trial, but his would have been the first in which a federal judge was accused of sexual charges. “Judge Kent believes that this settlement is in the best interest of all involved,” his attorney, Dick DeGuerin, said after this morning’s hearing. “A trial would have been long, embarrassing and difficult for all involved,” DeGuerin added. He said Kent has retired from the bench.
Kent faces up to 20 years in prison on the obstruction charge. Prosecutors have suggested he be sentenced to three years in prison, but the judge is not bound by that recommendation.
Senior U.S. District Judge Roger Vinson has imposed a gag order on those involved in the case, but allowed DeGuerin to make his statement to the news media. The two female court employees with whom Kent now admits he had non-consensual sexual contact also were barred from speaking by Vinson’s order. Gag orders are designed to protect the rights of defendants from public prejudice before trial. Kent has waived his right to appeal and it is unclear why Vinson would issue a gag order....
Although, in most pleas in the federal courthouse in Houston, defendants are made to state their crimes, neither Kent nor prosecutor Peter Ainsworth stated the crimes in court. Instead, papers were filed stating that Kent had non-consensual sex with two former female employees between 2003 and 2007. The papers also state that, as part of the investigation into a complaint by one of the women, Kent lied about his relationship with the second woman to the Special Investigative Committee of the 5th Circuit. Kent signed those papers admitting his wrongdoing....
Kent’s sentencing [is] set [for] May [and a lawyer for one victim] said he expects the victims will have a chance to speak then. Federal law requires judges to consider the victims’ input in sentencing.
So, let's review the offense and plea basics: a federal judge has admitted to "non-consensual sex" with two federal employees and he gets to cop a plea to one obstruction count and gets a sentence recommendation from prosecutors of only three-years imprisonment. This seems like a pretty sweet deal, especially given that hundreds of federal defendants are now serving much long prison terms for just downloading the wrong kinds of dirty pictures on their computers.
These issues really concern me in light of the (peculiar) gag order on Judge Kent's real victims. I wonder if the victims of his "non-consensual sex" — which is sometimes called rape where I come from — were consulted (as the Crime Victims' Rights Act arguably requires) before federal prosecutors made this sweet deal. I also wonder if they might now urge state prosecutors to go after Judge Kent for state crimes now that he has secured such a sweet deal from the feds.
Now, let's spot some sentencing issues:
- should Judge Kent's guideline calculations be focused on his admitted "non-consensual sex" as relevant conduct?
- should Judge Kent get any credit (under the guidelines or otherwise) for his (late-in-the-day) acceptance of responsibility?
- should Judge Kent have to register as a sex offender?
- should Judge Kent's prior government and status be a mitigating or an aggravating sentencing factor in light of the provisions of 3553(a)?
- should all the collateral consequences of his conviction (including the likely loss of his federal pension) be a mitigating sentencing factor in light of the provisions of 3553(a)?
- is the gag order on the victims consistent with the federal Crime Victims Rights Act?
I could go on and on, but it looks like we will have at least a few months to work through these issues. (The CVRA issues, however, strikes me as one that might merit consideration (and litigation?) sooner rather than later.)
February 23, 2009 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
Wednesday, February 11, 2009
The persistent problems with fast-track disparity after Booker and Kimbrough
One (of many) persistent post-Booker jurisprudence hot-spots concerns whether defendants who are not within so-called "fast-track" districts should be eligible for comparable early plea reductions when their cases are factually similar to those who get the benefit of such reductions in "fast-track" districts. Before Kimbrough, the circuits had generally ruled that district court's lack discretion to provide such reductions without the blessing of the government. After Kimbrough, this issue has divided the circuits.
As evidenced by a recent district court opinion sent my way be a helpful reader, at least one district judge seems eager to have this issue reviewed with greater focus in light of current jurisprudential and fast-track realities. The opinion in US v. Sanchez-Gonzalez, No. 08 CR 609 (N.D. Ill. Feb. 9, 2009) (available for download below), concludes this way:
Galicia-Cardenas and Martinez-Martinez are, of course, binding on this Court. Mr. Sanchez-Gonzalez argues, however, that the Supreme Court’s intervening decision in Kimbrough v. United States, 128 S. Ct. 558 (2007), permits the Court, despite the Seventh Circuit’s decisions, to consider fast-track disparities as unwarranted within the meaning of section 3553(a)(6). The Court disagrees. The Supreme Court concluded in Kimbrough that a district court may base an outside-the-Guidelines sentence on its disagreement with the Sentencing Commission’s policy decisions. The Court did not conclude, however, that a district court may base its sentence on its disagreement with Congressional directives. Indeed, the Court took some pains in Kimbrough to point out that the policy decision at issue there – the Sentencing Commission’s adoption, in the Guidelines for narcotics cases, of a 100-to-1 ratio treating every gram of crack cocaine as the equivalent of 100 grams of powder cocaine – was not the result of an express legislative directive, id. at 570-71, or even an implied legislative directive, id. at 572-73.
This Court continues to believe, as a matter of policy, that it is unjust to permit sentencing disparities based on the fortuity of the judicial district in which a defendant in an illegal reentry case is charged. And one can legitimately take issue with the proposition that all fast-track reductions in illegal reentry cases are the product of Congress’ policy statement in the PROTECT Act and the companion legislative report cited by the Seventh Circuit. As this Court pointed out in Medrano-Duran, and as reemphasized by the data defense counsel have submitted in the present case, a number of so-called fast-track reduction programs operate outside the bounds of Congress’ directive to the Sentencing Commission and Sentencing Guideline § 5K3.1. See Medrano-Duran, 386 F. Supp. 2d at 946-47. That was part of the basis for this Court’s determination in Medrano-Duran that it was appropriate to consider such disparities in determining whether to impose a below-Guidelines sentence.
One might also legitimately argue that nothing in the PROTECT Act nor the legislative report cited in Martinez-Martinez amounts to express or implied legislative disapproval of deviation from the Sentencing Guidelines based on inter-district disparities resulting from the Department of Justice’s determination to adopt fast-track programs in some districts but not others. See United States v. Rodriguez, 527 F.3d 221, 229 (1st Cir. 2008). But the Seventh Circuit has taken a different course, and until it or the Supreme Court concludes otherwise, the choice is not one this Court is permitted to make.
For these reasons, the Court concludes that it is not permitted to consider, in imposing sentence in this case, the fact that a fast-track or early disposition program is not available in this District.
Wednesday, January 28, 2009
Two intriguing sentencing stories show the impact of cable TV on federal justice
Two new local stories about two very different federal prosecutions have one notable link: cable TV shows seemed to have had an the operation of the federal criminal justice system in both cases.
First, consider this Tennessee story, headlined "Moonshine maestro gets 18 months." Here are some of the cable-influenced details:
A federal judge sentenced Marvin “Popcorn” Sutton to 18 months in prison on moonshining and weapons charges Monday, rejecting arguments that Sutton deserved a sentence of probation because he had reformed and was too ill to serve prison time....
Sutton has a broad circle of supporters, and nearly 1,500 people signing petitions of leniency on his behalf. He gained fame through a book he wrote called “Me and My Likker,” as well as through Internet videos and cable TV documentaries in which he demonstrated how to make moonshine.
That notoriety may have harmed him in the sentencing hearing. Assistant U.S. Attorney Robert Reeves introduced several of the videos as evidence Monday, claiming they showed Sutton “flaunted criminal activity.” The judge appeared to agree. “Your moonshining is a violation of the law,” [the judge] told Sutton. “I don't care how it is glamorized on the History Channel or the Discovery Channel.”
Second, consider this Connecticut story, headlined " Child porn purveyor fights prison sentence." Here are some of the cable-influenced details:
A man who was sentenced to more than three years in federal prison for possessing child pornography after a state judge gave him probation for possessing the same material is fighting the federal sentence — unsuccessfully so far.... [Defendant Edward] Burke pleaded guilty in October 2007 to a federal charge of possessing child pornography, which would have been extremely difficult for his lawyers to defend against at trial because he had pleaded guilty to the same conduct in Hartford Superior Court.
The federal prosecution began after the Journal Inquirerreported on Burke’s sentence of probation at the state level, imposed in October 2006 by Judge Thomas P. Miano in Hartford Superior Court. Miano put Burke on probation for five years, with 10 years of potential prison time hanging over his head if he violated court-ordered conditions. The hundreds of images of child pornography found on Burke’s computer included sexual abuse of toddlers and the bondage and rape of prepubescent girls, authorities have said.
Heather Nann Collins, then a JIreporter, appeared on Cable News Network’s Nancy Grace show to discuss the case. During the show, Grace said, as if speaking to Miano, “You are in contempt.” Burke’s lawyers argued in court papers that the federal prosecution was “unduly influenced” by Grace’s attack on Miano.
Monday, January 26, 2009
New opinion from Judge Adelman explaining why drug guidelines merit less respect under 3553(a)
I just received a short but still important new sentencing decision from US District Judge Lynn Adelman. Judge Adelman imposes a below-guideline sentence in US v. Thomas, No. 08-CR-238 (E.D. Wisc. Jan. 24, 2009) (available for download below), based on part on the conclusion that the powder cocaine drug trafficking guideline is entitled to less respect because it is not based on an "empirical approach" or study and expertise from the US Sentencing Commission. Here is a key paragraph from the opinion in Thomas:
As indicated above, the guidelines recommended that defendant served 27-33 months in prison. In considering this recommendation, I noted that the Sentencing Commission “departed from the empirical approach when setting the Guidelines range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory minimum sentences that Congress established for such crimes.” Gall, 128 S. Ct. at 594 n.2. The Commission did not at the time of adoption explain how this scheme furthered the purposes of sentencing or otherwise justify the recommended sentences by reference to past practice or other research or study, and sentences in drug cases have since increased far above pre-guideline practice. See U.S. Sentencing Commission, Fifteen Years of Guideline Sentencing 48-49, 53 (2004). Such guidelines, which do not take account of empirical data and national experience, and do not exemplify the Commission’s exercise of its characteristic institutional role, are generally entitled to less respect. See Kimbrough, 128 S. Ct. at 575.
Thursday, December 11, 2008
Any profound thoughts on the state of federal sentencing a year after Gall and Kimbrough?
It just dawned on me this morning that yesterday marked the one-year anniversary of the Supreme Court's decisions in Gall and Kimbrough, the two cases in which the Justices made extra clear that Booker really meant that the guidelines were to be treated as truly advisory. Though the US Sentencing Commission seems unlikely to produce a "one-year-later" report on the impact of Gall and Kimbrough, it seems fair to suggest that these cases have had an important and consequential effect on federal sentencing outcomes and atmospherics.
I could opine at length about my own impressions of the tangible and intangible impact of Gall and Kimbrough, but this post is mostly designed to encourage reader input. Specifically, I am eager to hear from commentors concerning whether and how Gall and Kimbrough should be celebrated or cursed one year later. I would also love to hear suggestions about what institutions like the US Sentencing Commission, the Justice Department and Congress should be thinking about as we start year two of the post-Gall/Kimbrough world (and approach year five(!) of the post-Booker world).
December 11, 2008 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Gall reasonableness case, Kimbrough reasonableness case, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack
Wednesday, September 24, 2008
District Court embraces a sentencing approach to dealing with prosecutorial misconduct (and highlights the impact of effective scholarship)
I am pleased to report on a fascinating district court opinion issued today, US v. Dicus, No. CR 07-32-MWB (N.D. Iowa Sept. 24, 2008) (available for download below). Among the fascinating facets of the Dicus opinion is its incorporation of the insights of a new piece of scholarship (recently discussed here) by Professor Sonja Starr titled "Sentence Reduction as a Remedy for Prosecutorial Misconduct." Here is how the Dicus opinion starts and ends:
At a sentencing hearing on September 9, 2008, I announced that I was reducing the defendant’s sentence from the high end to the low end of his advisory guidelines range as a sanction for the prosecution’s serious breach of the defendant’s plea agreement. I would otherwise have sentenced the defendant at the top of his guidelines range based on his sales of marijuana to minors, which was a factor not reflected in his advisory guidelines range. However, the Chief Judge of our district had already found the prosecution’s breach of the plea agreement to be prosecutorial misconduct, and I imposed the sentence reduction, at the defendant’s request, as the appropriate sanction for such serious misconduct. I now enter this memorandum opinion and order to memorialize more fully my rationale for granting a sentence reduction as a targeted remedy for serious and recidivist prosecutorial misconduct....
In this case, I find that a reduction in the defendant’s sentence, albeit one to the low end of his advisory guidelines range, when I would otherwise have sentenced him to the high end, is the appropriate remedy for the prosecution’s serious violation of the defendant’s plea agreement. Such a remedy provides both deterrence for the prosecution’s misconduct and an incentive to defendants to raise such misconduct. Such a remedy also serves the “interests of justice” and shows “appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty.” Santobello, 404 U.S. at 262-63. Finally, the reduced sentence in this case still serves the purposes of sentencing, upon consideration of the pertinent § 3553(a) factors, in that it is sufficient, but no greater than necessary, to achieve all of the appropriate sentencing purposes.
Wednesday, August 13, 2008
Thoughtful opinion focused on bad health as the basis for a below-guideline sentence
A helpful reader sent me a copy of a lengthy and interesting sentencing opinion issued yesterday in US v. Rausch, No. No. 07-cr-00497 (D. Colo. Aug. 12, 2008) (available for download below). The opinion is focused mostly on using severe health problems as the basis for giving a below guideline sentence, but has lots of other post-Booker goodies. Here are a few snippets from a section of the opinion addressing punishment theory:
The retributivist approach, advocated by the prosecution in this case stresses guilt and dessert, looking back to the crime to justify punishment and denying or ignoring that the consequences of punishment have any relevance to its justification. On the other side of the coin, the utilitarian approach taken by defense counsel insists that punishment is justified only if it has beneficent consequences that outweigh the intrinsic evil of inflicting suffering on another human being.
Lord Justice Denning, the great English jurist, has called punishment “the emphatic denunciation by the community of a crime.” In his view, and I see great value in it, punishment reinforces the community’s respect for its legal and moral standards. The restraint on this principle, however, is that punishment is only justifiable when it is deserved. Rausch has admitted guilt and the proof is evident and overwhelming. Even so, the utilitarian assertion is that every human being should be treated with at least a minimum of respect as a source of rights and expectations and not merely as an instrument for promotion of the social order.
While the practice of punishment has been extant throughout the history of human culture, so, too, has been its cautionary curtailment....
In The Letters of Abelard and Heloise, 159 (Michael Clanchy ed., Betty Radice, trans., Penguin Classics 2004), one finds the following: “[F]or there is a well-known saying, ‘The law was not made for the sick.’” (Letter from Abelard to Heloise discussing caring for the sick and giving them all that they require). Further, in Dostoyevsky’s The House of the Dead and Poor Folk, 180 Constance Garnett, trans., (Barns and Noble Classics 2004), we read: “It is useless to punish a sick man.” Id. (explaining the absurd practice of imprisoning sick men and making them wear shackles).