Sentencing Law and Policy

Another US Sentencing Commission regional hearing on tap for this week in Austin

As detailed in this press release, the US Sentencing Commission has another one of its regional public hearings on tap for later this week.  This sixth regional public hearing is scheduled for November 19-20, and this one is taking place at the University of Texas School of Law.  Though I suspect former USSC Chair Judge Hinojosa had a hand in picking the Longhorn locale for this hearing, this event will be run by the recently confirmed new USSC Chair, Judge Sessions.

As detailed in this official agenda, another fascinating group of invited witnesses are scheduled to testify regarding federal sentencing policy in this regional hearing.  I suspect some of the written testimony will be available via the USSC's website next week.  I would bet that the challenges of child porn sentencing is again a topic of discussion as it has been in many prior regional hearings.

A final take on a record-setting federal corruption sentence

This Roll Call article, whic is headlined "Jefferson’s Sentence Is a Record-Setter," provides some post-game commentary on this past Friday's federal sentencing of William Jefferson.  Here are a few highlights:

A freezer full of cash made ex-Rep. William Jefferson a national punch line, and a federal judge on Friday made him a record-holder: The 13-year prison sentence given to the Louisiana Democrat is the longest ever handed down to a former Member of Congress....

Ex-Rep. Duke Cunningham (R-Calif.), who pleaded guilty in March 2006 to accepting more than $2.4 million in bribes from defense contractors, as well as tax evasion and fraud, is serving an eight-year, four-month sentence in a federal penitentiary in Tucson, Ariz.  Prior to Jefferson’s sentencing, Cunningham had the distinction of receiving the longest prison term for a former lawmaker. He is scheduled to be released in June 2013.

At least three other former House Members have also completed their terms of incarceration in federal prisons in the past year or so, including ex-Reps. Jim Traficant (D-Ohio), Bob Ney (R-Ohio) and Frank Ballance (D-N.C.)....

In court documents, [defense lawyers] cited a litany of other previously incarcerated lawmakers, part of an effort to limit Jefferson’s term to no more than 10 years.... [But] federal prosecutors recommended Jefferson receive a prison term of up to 33 years, asserting his “crimes against the people of the United States were exceptional in their sheer number, length, and breadth.”

In addition to all its political dimensions, this case also spotlights the distorting nature of the federal sentencing guidelines and post-Booker sentencing statistics.  Though Jefferson received a record-setting long sentence and is now scheduled to be incarcerated until he turns 75-years-old, his sentence will be recorded as a below-guideline Booker variance in which the judge gave a sentence less than half as long as what was recommended by the guidelines.  In other words, in a post-Booker world with inflated federal sentencing guidelines, even a record-long sentence is coded as very lenient.

Report on start of US Sentencing Commission regional hearing in Denver

The Denver Post has this new article, headlined "U.S. Sentencing Commission hears from judges, prosecutors in Denver," reporting on the start of the USSC's latest regional hearing. Here are some of the details:

A federal judge in Denver told the U.S. Sentencing Commission he is concerned about the treatment of war veterans in the criminal court system and the fairness of sentencing in some child-pornography cases.

The commission solicited testimony Tuesday from federal judges, prosecutors, probation officers and community groups during a public hearing at the Hyatt Regency hotel in downtown Denver. The hearing continues today with testimony from federal public defenders and more district judges....

U.S. Senior District Judge John L. Kane asked the commission for more clarity about why the federal sentencing guidelines are set to certain terms for various offenses. The judge said he has asked lawyers and probation officers why a particular sentence needs to be applied and often hears, "because the guidelines say so."

"It's not a matter of logic or a matter of reason," Kane said. "None of them could answer the following question — 'Why do the guidelines recommend that particular range?' "If, as a sentencing judge, I am to consider the advice of the guidelines and follow it, then the reason for the guidelines must be considered," Kane said. "Sometimes a reasoned argument can change a judge's mind, but otherwise what we have is an ideological food fight."

Colorado U.S. Attorney David Gaouette testified he is concerned judges are inconsistent in following the commission's sentencing guidelines. "Of the six federal judges in our district, three follow the guidelines, one sometimes does and two do not use the guidelines," he said. "One judge has told one of my (prosecutors) that the sentencing guidelines are arbitrary and would not be followed."

US Sentencing Commission regional hearing in Denver starts today

As detailed in this prior post, the US Sentencing Commission has another one of its regional public hearings starting today. This fifth regional public hearing is taking place in Denver, Colorado, in Mineral Hall at the Hyatt Regency Denver.

As detailed in this official agenda, another fascinating group of invited witnesses are scheduled to testify regarding federal sentencing policy in this regional hearing.  Much of the written testimony is now linked through the agenda page, and it all looks like worthwhile reading. 

I have found the testimony of federal prosecutors especially interesting from these regional hearings.  Notably, the submitted written testimony from David M. Gaouette, the United States Attorney for the District of Colorado, and of B. Todd Jones, the United States Attorney from the District of Minnesota, both stress the post-Booker sentencing challenges in child porn downloading cases.

US Sentencing Commission regional hearing in Denver next week

As detailed in this brief public notice, the US Sentencing Commission has another one of its regional public hearings on tap for next week.  This fifth regional public hearing is scheduled for October 20-21, 2009, in Denver, Colorado, in Mineral Hall at the Hyatt Regency Denver.

As detailed in this official agenda, another fascinating group of invited witnesses are scheduled to testify regarding federal sentencing policy in this regional hearing.  I suspect some of the written testimony will be available via the USSC's website next week, and I have found all the regional public hearing testimony worth reading.  

Finally, I cannot help but note again that this regional session lacks any "View from Academia" (although I see that former District Judge and now Professor Paul Cassell is scheduled to testify on the "Community Impact" panel).  The first three regional hearings (which were in Atlanta, Stanford and New York City) all included a panel of academics, but now the Sentencing Commissioners appears disinterested in hearing about how the federal sentencing system looks from various regions of the ivory tower.

"The American Inquisition: Sentencing after the Federal Guidelines"

The title of this post is the title of this draft article I just noticed on SSRN from Professor Ricardo Bascuas. Here is the abstract:

Despite the series of important Supreme Court sentencing decisions of the past ten years, federal sentencing remains fundamentally inquisitorial.  Although the guidelines are no longer legally binding, they continue to taint the entire federal criminal justice system by needlessly discouraging defendants from exercising their trial right and pressuring them to confess.  Their continued vitality is largely due to Justice Breyer’s persistent view, first as one of the architects of the original guidelines and later as a Supreme Court justice, that sentencing is an administrative problem requiring an administrative solution.  The heart of this solution is that the facts of each case and the appropriate punishment are to be determined not through the parties’ competing presentations, but through a probation officer’s purportedly 'neutral' investigation.  This method of resolving factual issues, together with the guidelines’ harsh penalties for invoking the right to trial and lavish rewards for incriminating others, result in a system that is not only unfair but also intrinsically incompatible with our adversarial system of justice.

Existing scholarship on the Federal Sentencing Guidelines has not examined how the guidelines purposefully discourage exercise of the right to trial and pressure defendants to admit to every allegation against them (and others).  The central role that the United States Probation Office plays has also not been thoroughly examined. Far from undertaking merely ministerial and innocuous tasks, as most of the existing scholarship assumes, probation officers are tasked by the guidelines with the most critical role at sentencing.  Often, they exert far greater influence on case outcomes than defense lawyers and prosecutors. The article concludes that the present sentencing process is unconstitutional but can be easily reformed by restoring control over each case to the parties.

Seventh Circuit judges debating reach of Kimbrough to career offenders

The Seventh Circuit today has an interesting panel opinion in US v. Welton, No. 08-3799 (7th Cir. Oct. 2, 2009) (available here), which in turn triggers an interesting dissent from judges not actually on the panel deciding the case.  First, here is the heart of the ruling in Welton:

Welton contends that Kimbrough’s holding should be extended to include defendants sentenced as career offenders. But applying the reasoning above, Welton’s argument must fail. Unlike the crack/powder disparity, the career offender Guideline range is the product of a Congressional mandate. As Kimbrough noted, Congress “specifically required the Sentencing Commission to set Guidelines sentences for serious recidivist offenders ‘at or near’ the statutory maximum.” Id. at 571 (citing 28 U.S.C. § 994(h)). Deviating from the career offender Guideline range based on a policy disagreement necessitates that a sentencing court disregard those statutory maximums.

Because this ruling required the Seventh Circuit panel to overrule a prior decision, this opinion was circulated to all member of the Circuit.  That, in turn prompted a dissent from three judges not on this panel, which starts this way: 

The Supreme Court has held unequivocally that all guidelines are advisory and that courts may issue below-guideline sentences based on policy disagreements with the crack/powder disparity.  Nonetheless, the panel believes there are some exceptions to these rules. Because the panel opinion imposes impermissible limits on a judge’s discretion in applying the Sentencing Guidelines, I believe it is out of step with the Supreme Court’s decisions in Booker and Kimbrough.

Yet another noteworthy below-guideline federal child porn sentence

This local story from Washington state, which is headlined "2½-year sentence for man with 1,300 CDs of child porn," provides yet another example of the uncertainty and disparity surrounding federal sentencing for child porn offenses.  First the facts as reported:

A former Little League coach who was found to have over a thousand CDs full of child pornography images was sentenced to 32 months in prison Friday.  In addition, 60-year-old Benny L. Hill will be required to have 15 years of supervised release.

Agents were clued in to Hill's stash while investigating a Fairfield, Conn. man on child pornography charges. Investigators found Hill's email address, "Stoned_coach," and learned the Fairfield man had been trading child pornography with Hill over the Internet.  When agents searched Hill's Kelso home on March 12, 2008, they discovered 1,300 CDs full of child pornography images.

In fact, the collection was so large, "agents abandoned efforts to continue counting all the images and videos," said Assistant United States Attorney David Reese Jennings.  Hill was arrested and last August, pleaded guilty to possession of child pornography.

"I cannot overstate the revulsion in our community, nor the serious and insidious impact on our culture, or how these offenses raise levels of fear in our society," U.S. District Judge Ronald B. Leighton said in a statement released after sentencing Friday. "The joy of childhood is constrained by parents who are scared to death by the people who are inspired, motivated, and titillated by those who possess this material."

Prosecutors had asked for a sentence of just over 8 years.

Now, my questions and concerns:

1. Why were federal prosecutors only asking for an 8-year sentence here for a guy with a huge (record-setting?) collection of child porn who seems to have been an active trader, when federal prosecutors in other cases have sought decade-long sentences for seemingly much less serious child porn offenders? 
2. How does the judge's bold statement jibe with his significant downward variance?
3. Will the government appeal this relatively low sentence for what seems to be an especially serious child porn offender?
4. Am I the only one who thinks it is perversely funny that the defendant here is named Benny Hill?

Some related federal child porn prosecution and sentencing posts:

• Split Sixth Circuit affirms one-day prison sentence for downloading child porn
• Notable long child porn sentence upheld by split Sixth Circuit
• Judges complaining to USSC about federal sentencing guidelines for child porn possession
• Another significant downward variance in federal child porn sentencing
• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• Is there an ivy-leaguer exception to federal child porn charges?
• More examples of sentencing uncertainty surrounding federal child porn cases
• Is there a law student sentencing discount for federal child porn charges?
• Judge Adelman operationalizes deconstructed child porn guidelines
• Another notable child porn sentencing decision
• Another notable sentencing opinion in a child porn downloading case
• Acquitting and downloading some additional USSC priorities
• Effective review of federal uptick in child-porn prosecutions
• Another puzzling report on federal child porn sentence
• "Disproportionate Sentencing for Possession of Child Pornography: Witchcraft Trials of the Modern Age?"

"Disproportionate Sentencing for Possession of Child Pornography: Witchcraft Trials of the Modern Age?"

The title of this post is the title of this notable student note by Jesse Basbaum that I just noticed on SSRN.  Here is the abstract:

This Note identifies several infirmities of United States Sentencing Guideline section 2G2.2, the sentencing scheme for possession of child pornography.  The production and web-based dissemination of child pornography images has increased substantially over the past decade. The Department of Justice has aggressively prosecuted these crimes under the rationale that (1) possession of child pornography leads to contact offenses, (2) demand drives supply, and (3) the mere availability of an image or video constitutes continued and indirect abuse of the child depicted. In light of these and other concerns, Congress has enacted dramatic increases in the potential sentences for possessors of child pornography.  In this Note, I will argue that the Sentencing Commission should amend the guidelines for possession of child pornography because, (1) the guidelines are the result of 'morality earmarks' rather than the product of empirical or academic study; (2) the empirical evidence calls into question the asserted link between possession of child pornography and future sexual assaults of children; and (3) by failing to consider the nature of internet downloading, most of the 'enhancements' are actually part of the core offense of possession. Several federal district courts have cited these and other deficiencies in their decisions to sentence defendants below applicable guideline ranges. Though the Supreme Court’s recent decisions in Rita and Kimbrough permit trial courts to disregard sentencing guidelines that lack empirical basis, most courts still rely heavily on the guidelines to impose lengthy sentences.  Accordingly, I propose that the Sentencing Commission amend section 2G2.2 in a manner that reflects the tenuous connection between possession and contact offenses, and in light of the realities of Internet use.

Some related federal child porn prosecution and sentencing posts:

• Split Sixth Circuit affirms one-day prison sentence for downloading child porn
• Judges complaining to USSC about federal sentencing guidelines for child porn possession
• Another significant downward variance in federal child porn sentencing
• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• Is there an ivy-leaguer exception to federal child porn charges?
• More examples of sentencing uncertainty surrounding federal child porn cases
• Is there a law student sentencing discount for federal child porn charges?
• Judge Adelman operationalizes deconstructed child porn guidelines
• Another notable child porn sentencing decision
• Another notable sentencing opinion in a child porn downloading case
• Acquitting and downloading some additional USSC priorities
• Thoughtful opinion focused on bad health as the basis for a below-guideline sentence
• Effective review of federal uptick in child-porn prosecutions
• Another puzzling report on federal child porn sentence
• Notable long child porn sentence upheld by split Sixth Circuit

"U.S. Sentencing Commission Urged to Give Judges More Flexibility"

The title of this post is the headline of this new article in the Washington Post discussing testimony at this week's US Sentencing Commission's regional hearing in Chicago.  Here is how the article starts:

Advocates for added flexibility in criminal sentencing took their appeal to the U.S. Sentencing Commission, which heard testimony here Wednesday and Thursday as part of the agency's first nationwide series of public hearings since federal sentencing guidelines took effect 22 years ago.

Criminal justice reform proponents have long pushed the federal government to back alternatives to incarceration and more flexible sentencing for drug, child pornography and other convictions. While past critics of federal guidelines criticized them for removing judges' discretion, others in law enforcement and advocacy want to use the guidelines to promote alternative sentencing. They said they think the commission is increasingly receptive to that idea.

Kentucky Justice and Public Safety Cabinet Secretary J. Michael Brown, who called the commission "the NASA of sentencing stuff," lamented states passing strict laws targeting "the drug du jour" only to end up "with prison systems bursting at the seams with people who aren't the most dangerous to society."

David Kennedy, director of the Center for Crime Prevention and Control at John Jay College of Criminal Justice, urged the commission to promote new strategies for dealing with gangs, including an approach wherein judges and prosecutors are more lenient if gangs cease their activities, but "bank" charges for later punishment if crime continues. Kennedy sees his invitation to testify as part of a new direction for the commission.  "The Sentencing Commission appears to me to be thinking about its role more broadly and is interested in different points of view," he said.  Kennedy said judges are "enormously influenced" by the guidelines, even though they are not mandates.

Judges complaining to USSC about federal sentencing guidelines for child porn possession

This new article from the National Law Journal, which is headlined "Sentences for Possession of Child Porn May Be Too High, Judges Say," reports on some testimony from the latest US Sentencing Commission regional hearing. Here are highlights:

Judges testifying before the U.S. Sentencing Commission in Chicago told the panel that sentences for people convicted of possessing child pornography have become too severe. The commission suggested it will review the relevant guidelines.

Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel on Wednesday that sentencing for possession of child pornography, as opposed to manufacture or commercial distribution, may need to be changed. Many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders, they said. "This is an area that requires the commission's close consideration and possible corrective action," Rosen told the panel, adding, "I know it's an awkward area for all of us."

In response, Commissioner Beryl Howell said that the issue "is on our priority list for the coming year." The commission will study what kinds of refinements might be made after reviewing the departures from the sentencing guidelines that judges have made in these cases, she said. Howell also noted that Congress has weighed in heavily in this area over the years....

"I'm of the view that in many instances the sentences are simply too long," Carr said, referring specifically to the guidelines for child pornography possession, gun possession and drug possession....

7th Circuit Chief Judge Frank Easterbrook, who testified with a separate group of appellate judges, agreed that the child pornography possession area might be ripe for review. He said it gives him pause when he sifts through a stack of sentences that includes a bank robber getting a 10-month sentence and a person convicted of downloading child pornography receiving a 480-month sentence. "One wonders if we aren't facing some unreasonable and unjustifiable disparities," Easterbrook told the panel.

U.S. Attorney Patrick Fitzgerald, who oversees the Northern District of Illinois, will testify tomorrow that there "seems to be a striking dissonance" between judges and prosecutors in sentencing for child pornography and exploitation cases, according to his prepared remarks. "Without taking an advocate's view on why it is so, it is plain as day there is a deep disconnect," he said in the remarks, which were distributed early by the sentencing panel. "I respectfully suggest that this is an area of sentencing that warrants further study and further education of all involved."

The Booker decision has "aggravated the situation concerning child pornography," Fitzgerald said in his prepared remarks.  While mandatory minimum sentences in that area "are certainly strict," prosecutors may be reluctant to seek lower sentences when they expect, based on past experience, that judges will reduce whatever sentences they recommend, he said.

US Sentencing Commmission makes official its ambitious priorities

Back in June, as detailed in this post, the US Sentencing Commission released its "notice of proposed priorities and request for public comment ... for the amendment cycle ending May 1, 2010."   As I noted back then, unlike in prior years in which the USSC seemed to be acting as if Booker never happened, this latest set of proposed priorities was much more modern and quite ambitious.

As detailed in this official statement, after "reviewing public comment received pursuant to the notice of proposed priorities,"  the USSC has now issued its "Notice of final Priorities" for its 2009-2010 amendment cycle.  Among the many highlights in this document are the USSC's stated priority to:

• "study ... statutory mandatory minimum penalties, including a review of the operation of the 'safety valve' provision at 18 U.S.C. § 3553(e)"
• "study and report on the appellate standard of review applicable to post-Booker federal sentencing decisions"
• a "review of departures within the guidelines"
• a "study of, and a possible report on, alternatives to incarceration"; and
• a "[r]eview of child pornography offenses"

I am hopeful that the Senate will soon confirm President's pending nominations for the chair position and an open seat on the Commission.  The USSC should be and probably needs to be working at full strength in order to be able to move forward effectively on all the priorities.

Latest FSR issue, "Fast-Track Sentencing," now available on-line

I am pleased to report that the latest issue of the Federal Sentencing Reporteris available on-line, bearing the title "Fast-Track Sentencing."  Through this Issue, thanks to the extraordinary efforts of guest editor Alison Siegler, FSR has now published a set of articles and primary materials concerning federal early-disposition programs, which are known more commonly as “fast-track” sentencing programs. 

As explained in Alison's Guest Editor’s Observations, which can be accessed at this link, the goal of this FSR Issue was to describe the history of fast-track sentencing programs, as well as to illuminate the current debates over whether and when judges have discretion to consider fast-track disparities when sentencing defendants who quickly plead guilty in non-fast-track districts.  To this end, this Issue reprints a variety of difficult-to-obtain primary sources that reveal the dynamic and diverse nature of fast-track sentencing programs in federal districts across the nation.

The Table of Connects for this latest FSR issue can be accessed at this link, and all the articles are available electronically here.  (A full subscription to the Federal Sentencing Reporter can be ordered on-line here.) 

Other recent FSR issues:

• FSR Issue 21.4: On the Shoulders of Giants
• FSR Issue 21.3: "Second Look" Sentencing Reforms
• FSR Issue 21.2: Sex Offenders: Recent Developments in Punishment and Management
• FSR Issue 21.1: Thoughts for the U.S. Sentencing Commission
• FSR Issue 20.5: American Criminal Justice Policy in a "Change" Election
• FSR Issue 20.4: Debates and Realities Surrounding Crack Retroactivity
• FSR Issue 20.3: White-Collar Sentencing
• FSR Issue 20.2: Prisoner Reentry 

"Legitimizing Local Variations in the Federal Sentencing System"

The title of this post is the title of this effective new piece on SSRN.  Here is the abstract:

This Essay attempts to provide an all-things-considered approach to justifying local sentencing variations in the federal system.  Instead of trying to eliminate those disparities, this Essay contends that the federal sentencing system should embrace regional variations to increase the moral credibility of the system at the local level.  To do this, it argues for the creation of regional sentencing commissions (one for each federal circuit), which would promulgate their own, regional sentencing guidelines.  By premising each set of guidelines on Professor Paul H. Robinson’s distributive principle of empirical desert, which is informed by lay intuitions of justice, the federal system would be made to respond to community norms and conditions, thereby increasing local credibility.

Is real fundamental, structural change on the horizon for the federal sentencing system?

As detailed in this report about the US Sentencing Commission regional hearing in New York this week, a number of federal judges are urging the USSC to work on big, structural sentencing reform.  In the words of Judge Dearie: "It is not a time to tinker ... it is time for fundamental reform....  If necessary, start all over.  The truth is, you may be our only hope.  Raise your voice or voices.  We must rely on each of you to think outside the box."

Of course, federal judges (as well as academics) have been urging fundamental, structural changes to the federal sentencing system for quite some time.  But, now a passage this recent speech by Attorney General Eric Holder suggests that the Justice Department may soon be urging some big changes:

Although this Administration is still young, we have already started to put into practice what I believe is a data-driven, non-ideological, post-partisan approach to crime.  For example, I have asked attorneys throughout the Department to conduct a comprehensive, evidence-based review of federal sentencing and corrections policy.  Specifically, the group is examining the federal sentencing guidelines, the Department’s charging and sentencing advocacy practices, mandatory minimums, crack/powder cocaine sentencing disparities, and other racial and ethnic disparities in sentencing.  The group is also studying alternatives to incarceration and strategies that help reduce recidivism when former offenders reenter society.  We intend to use the group’s findings as a springboard for recommending new legislation that will reform the structure of federal sentencing.

I have added the emphasis and bold to the end of this passage because I think AG Holder's reference to reforming the structure of federal sentencing is quite significant and could portend big changes on the horizon.  (Or, maybe I am just a bit giddy on hope-and-change talk on a sunny Friday afternoon.)

Effective and fascinating report on USSC regional hearing in NYC

I was pleased to see this report from Bloomberg news, headlined "Judges Call on U.S. to Simplify Sentencing Guidelines," covering yesterday's first day of the US Sentencing Commission's regional hearing in New York City.  Here are extended excerpts from an effective and interesting article:

The U.S. Sentencing Commission should work to simplify federal guidelines and keep them advisory, rather than return to a mandatory system, a group of federal judges said.  The judges spoke today at the U.S. Court of International Trade in New York, where the commission is holding the third in a series of public hearings on policy issues.

The seven-member commission should work with Congress to create a “politically viable” plan to simplify the sentencing rules, which are “ridiculed” in other countries, said Jon Newman, who sits on the appeals court in New York. Several other judges said they agreed with him.... 

Denny Chin, a district judge in Manhattan, praised the Supreme Court for its Booker decision. “Most if not all of my colleagues in the Southern District of New York would agree the system is better post-Booker,” Chin testified today. “We have more flexibility to do what we are supposed to do -- to judge -- and we are not limited to merely applying mechanical rules and doing mathematical calculations.” Last month, Chin sentenced Bernard Madoff to 150 years in prison for a decades-long fraud that cheated investors of billions of dollars.

Richard Arcara, a district judge in Buffalo, New York, also praised the Booker decision for returning sentencing discretion to judges. “Booker has improved the quality of the sentencing jurisprudence,” Arcara testified.  However, the new system is even more time-consuming for judges, Arcara said. In addition to performing guideline calculations, resolving objections and addressing motions for a reduced sentence, they must also now address motions for a sentence outside the advisory range, elaborately justifying each sentence, he said. 

The lone dissenter was Judge Brett Kavanaugh, who serves on the appeals court in Washington.... Acknowledging that Booker is “here to stay,” Kavanaugh argued that the Supreme Court’s Booker decision has increased disparities and that it invites judges to improperly apply personal and policy views when imposing a sentence.

William Carr, a vice chair of the Sentencing Commission, singled Kavanaugh out. “Judge Kavanaugh, you are unusual in longing for a return to the mandatory system,” Carr said. “Most district judges are happy with the advisory system.”  Kavanaugh proposed a remedy that would be a hybrid of the mandatory and advisory systems.  Newman said that he could live with that, as long as the proposed Congressional reform reduced the infinite calculations in the current system.

The reporter filing this story, Cynthia Cotts, kindly just  provides me via e-mail "some new material that you are free to post on your blog."  Specifically, "Raymond Dearie, a district judge in the Eastern District of New York, gave an impassioned speech this morning."  Here are excerpts from that speech by Judge Dearie:

"The post-Booker era presents a magnificent opportunity for the commission and Congress, and I urge you to take the lead.

We have created -- all of us -- a culture of incarceration.  We incarcerate more people for longer periods than any country in the world, at a cost of $50 billion annually.  One out of every 9 black men between the age of 20 and 34 in this land of the free is in jail.  The number of drug offenders in prison has increased by 1100 percent since 1980, the vast majority of whom are small-time, non-violent offenders.

There are other ways to address this problem.  It is not a time to tinker.  I agree with Judge Newman and others that it is time for fundamental reform.  We have not achieved truth in sentencing.  I do not agree that the commission is powerless to do anything about mandatory sentencing.  Simplify the guidelines.  Give us broad, empirically-based ranges with limited review if the sentence falls outside the range.  Give us more tools to fashion sentences that work for everyone. If necessary, start all over.  The truth is, you may be our only hope.  Raise your voice or voices.  We must rely on each of you to think outside the box."

According to this new report, "Judge Dearie said that he is confident his sentiments are shared by most, if not all of his colleagues in the Eastern District."  I am confident that I share his sentitment 100% and I am really pleased and gratified that the US Sentencing Commission is hearing these potent points.

US Sentencing Commission holds regional hearing in New York City this week

As detailed in this brief public notice, the US Sentencing Commission has another one of its regional public hearings on tap for this week.  This third regional public hearing is scheduled for July 9-10, 2009, in New York City will be held in the Ceremonial Courtroom at the US Court of International Trade.

As detailed in this official agenda, a fascinating and diverse group of invited witnesses are scheduled to testify regarding federal sentencing policy.  I am hopeful that all the witnesses' written testimony will soon be made available on-line, and I am especially intrigued to see on the witness list folks like: my very first boss after I graduate law school, Second Circuit Judge Jon O. Newman; the judge who sentenced Bernie Madoff to the max, SDNY District Judge Denny Chin; the judge who write lots of great sentencing opinions, Mass District Judge Nancy Gertner; the Professor who writes lots of great structural sentencing articles, Rachael Barkow; and top cops in NYC and Newark, Raymond W. Kelly and Garry F. McCarthy.

I am hopeful (though not really optimistic) that this regional hearing might get a little extra press because it is taking place in New York.  Of course, I will provide whatever coverage I can from afar in this forum.

Major CBC event on "Rethinking Federal Sentencing Policy"

As detailed in these notices from The Sentencing Project and FAMM, the Congressional Black Caucus Community Re-Investment Taskforce has a great program planned for Wednesday, June 24 on "Rethinking Federal Sentencing Policy."  Here is how The Sentencing Project describes the event:

The Congressional Black Caucus Community Re-Investment Taskforce is hosting "Rethinking Federal Sentencing Policy," in honor of the 25th Anniversary of the Sentencing Reform Act Wednesday at 4:30.  Brief remarks will be offered by Eric Holder, Attorney General, U.S. Department of Justice and the Hon. Stephen Breyer, Associate Justice Supreme Court of the United States.  The event will be held at the United States Capitol Visitor Center in the Orientation Theatre-South in Washington, DC.

After the remarks by AG Holder and Justice Breyer, the event will have a series of panels with superstars talking about "Mandatory Minimums" and the "Disparity Between Crack and Powder Cocaine" and "Good Time, Community Corrections and Reentry."

Lots and lots of notable new proposed priorities from US Sentencing Commission

The US Sentencing Commission has now posted here its "notice of proposed priorities and request for public comment ... for the amendment cycle ending May 1, 2010."  Unlike in prior years in which the USSC seemed to be acting as if Booker never happened, this latest set of proposed priorities is much more modern.  Federal sentencing fans should check out all the proposed priorities, but these proposals seem especially notable and valuable:

Continuation of its work on federal sentencing policy with the congressional, executive, and judicial branches of the government, and other interested parties, in light of United States v. Booker and subsequent Supreme Court decisions, possibly including (A) an evaluation of the impact of those decisions on the federal sentencing guideline system; (B) development of amendments to the federal sentencing guidelines; (C) development of recommendations for legislation regarding federal sentencing policy; (D) a study of, and possible report to Congress on, statutory mandatory minimum penalties, including a review of the operation of the “safety valve” provision at 18 U.S.C. § 3553(e); and (E) a study and report on the appellate standard of review applicable to post-Booker federal sentencing decisions.

A review of departures within the guidelines, including (A) a review of the extent to which pertinent statutory provisions prohibit, discourage, or encourage certain factors as forming the basis for departure from the guideline sentence; and (B) possible revisions to the departure provisions in the Guidelines Manual, including in Chapter Two and in Parts H and K of Chapter Five, in light of that review and any other information coming to the Commission’s attention, as well as potential technical and conforming amendments to the Guidelines Manual to facilitate ease of use....

Continuation of its multi-year study of the statutory and guideline definitions of "crime of violence", "aggravated felony", "violent felony", and "drug trafficking crime", including an examination of relevant circuit conflicts regarding whether any offense is categorically a "crime of violence", "aggravated felony", "violent felony", or "drug trafficking crime" for purposes of triggering an enhanced sentence under certain federal statutes and guidelines.  This study may culminate in guideline amendments and/or a report to Congress recommending statutory changes....

Review of child pornography offenses, and possible promulgation of guideline amendments and/or a report to Congress as a result of such review. It is anticipated that any such report would include (A) a review of the incidence of, and reasons for, departures and variances from the guideline sentence; (B) a compilation of studies on, and analysis of, recidivism by child pornography offenders; and (C) recommendations to Congress on any statutory changes that may be appropriate.

Wow, that is a lot of plans, and I have left out a good number of other priorities.  Though I am very pleased to see all the activity and ambition now coming from the USSC, I hope that the USSC is not risking biting off more than it can effectively chew.  But the USSC gets big-time kudos from me for even starting to make such a huge effort.

Departure patterns as a guide to whether guidelines are balanced

This effective local article about judicial departure rates from Virginia's state sentencing guidelines provides a terrific reminder about what judicial decisions can tell us about balances (and imbalances) in an advisory sentencing system.  Here are some statistical snippets from the article:

According to the Virginia Criminal Sentencing Commission’s 2008 annual report, judges in the 16th Circuit sentenced criminals in felony cases within sentencing guidelines 76.9 percent of the time.  They strayed from sentencing guidelines for more serious consequences in 13.7 percent of 642 cases while opting for lighter sentences in 9.3 percent.

In fiscal 2007, 16th Circuit judges followed the guidelines for 80.6 percent of 568 total cases. The judges in the circuit ... chose more severe sentences 8.8 percent of the time and lighter sentences 10.6 percent of the time....

The most recent commission report also detailed statewide compliance to sentencing guidelines in certain crimes.  Judges across Virginia stuck to sentencing guidelines 63.4 percent of the time in 232 total homicide cases, choosing more serious sentences 21.6 percent of the time and less severe sentences 15.1 percent of the time. 

Morris said he wasn’t surprised that judges strayed from the guidelines more often in violent crimes.  “That is where judges are really considering punishment and removing the person from the community for a lengthy period of time,” Morris said.

Of the 551 sexual assault cases in fiscal 2008, 20.5 percent of sentences were higher than the guidelines suggested, while 13.2 percent were lower than the recommendation. However, 22.8 percent of 202 total rape cases had less severe sentences, while 8.9 percent of sentences were more severe. Officials explained that disparity might have to do with the number of charges that falls into the sexual assault category, potential factual issues in rape cases and certain factors, such as age, that can worsen the recommended sentences.

In fiscal 2008, judges stuck to the guidelines more often in fraud, high abuse-risk drug and larceny cases, with 84.5 percent, 83.3 percent and 82.8 percent in compliance, respectively.

These data (as well as those reflected in the chart reprinted here) showcase that Virginia state judges are, generally speaking, as likely to find a guideline-recommended sentence to be too lenient as too harsh.  In sharp contrast, in the federal system, sentencing judges are roughly 10 times more likely to sentence below the guidelines than above the guidelines.  (In drug trafficking case, this ratio goes even higher; judges conclude that the federal guideline range is too harsh roughly 20 times more often than they conclude the federal guideline range is too lenient.)

Though a perfectly equal amount of upward and downward departures does not necessarily shows that a guideline system is perfectly balanced, a departure pattern like what we see in Virginia seems much sounder than what we see in the federal system.  And, what is especially troubling is that, both before and after Booker, despite departure patterns suggesting the federal guidelines are already way too harsh, the vast majority of US Sentencing Commission guideline amendments call for making the guidelines even harsher.